
    SUSANNAH OWENS vs. WILLIAM OWENS.
    A chancery thejrovifwnsór the lawautho-rifing a change °f
    if a be improperly re. moved by an order fur a change of venue, exception rauft be taken to it on his or her firft appearance ⅛. the court to which it is removed, other-wife it w/ii be. too late after-wards to on it. ^
    
      THIS was a suit in chancery, brought originally by Susannah Owens, wife of William Owens, against him in the coúrt of quarter sessions for Wayne county, under acj- Qf assembly concerning alimony.  The bill charges, that he treated her in a cruel, and inhuman, and barbarous manner; and sets forth the particular cases of ill-treatment complained of. The defendant filed his answer, by which he denies some of the particular charges of ill-treatment, and avoids others, by alleging provocations given by his wife ; which answer was regularly replied to by the complainant.
    Every order or proceeding of a judge, made out of court, is fubjefl to the revilioQ of (⅛‡ «towhich or tK« «⅛ ⅛ ⅞ “ “ade>“ "⅛-
    ⅛ a ehan«. rjcayfe, artera 7a?‘a ’*“fh ,he proofs m *⅛ caoie, it is without <hew-in*°f *
    
    ; j» a common law to ⅛. is cato foraWai-<⅛⅝
    Upon a petition for a change of venue, by the defendant, the cause was removed, into the Adair circuit court.
    The petition stated, that he had an action depending, &c. without stating what kind of an action ; and alleged, as a cause for a change of venue, ^ That owing to the undue influence of his adversary, and her connex-ions, over the minds of the populace, and the particular odium that attends his cause, though legal, he suspects that he cannot have justice,” &c. The affidavit was, “That the facts stated in the petition, as far as his own knowledge extends, are true ; and what he has from information, he believes, to be true.”
    After both parties had taken their depositions, the cause was tried at the -, — í—n term of the Adair circuit court, m the year 1804.
    A jury was empanneled and sworn on this trial, who returned a verdict, “ That the defendant did cruelly and inhumanly abuse the complainant, during their cohabitation, which occasioned their separation ; and that the complainant did strike and assault the defendant, and greatly provoke him.
    This verdict, the court, on the motion of the defendant, set aside, without expressing op the record, or shewing in anyway, any cause for so doing. After which,leave was given the defendant to amend hisan-swer : whereupon, at the same term,, he filed his amended answer; therein charging her with the commission of adultery, during the coverture.
    To this amended answer, no replication was put in, and the cause was continued until the September term 1,804; at which term, another jury was empanneled in the cause, who returned a verdict, That the defendant did not cruelly, barbarously and inhumanly treat the complainantwhereupon, the court dismissed the complainant’s bill. To reverse that decree, this writ qf error was prosecuted, and the plaintiff in error filed the following errors, to wit:
    l?t. That the case being in chancery, does not come within the act authorising a change of venue, according to the law in such case made and provided. The statement in the petition, does not warrant a change : moreover, the affidavit thereto is not sufficiently direct and positive : therefore, the change from Wayne to Adair circuit court, was error.
    
      January 14th.
    2nd. The trial being in chancery, the court erred in setting aside the verdict or report of the jury, without cause shewn,
    3rd, The second trial and hearing of the cause, was erroneously had, when the cause was not at issue, or in a state for trial or hearing,
    4th, On the whole case, on the merits, the court erred in dismissing the bill with costs, &c* when the decree should have been for the complainant.
    Allen, for plaintiff.
    — -Since the assignment of these errors, the first clause of the first error assigned, has been overruled in a cause, Woods vs. Fayette circuit court, on a mandamus. I will not argue that point, nor abandon it; the court can re-consider it.
    The statute authorising a change of venue in this country is new . But it may with propriety be assimilated to the English statute authorising a defendant to be held to bail by affidavit. Sellon’s practice, 111, 112, 113, shews that the English statute does not require any particular form of affidavit. But the decisions under that statute, require that the affidavit should be as positive as the nature of the case will admit of. it will not be sufficient by refering to another matter. It must be so certain, that if untrue, perjury could be assigned on it, The same book, 114, 115, shews also, that the same strictness is required in the description of the action. Testing this case then, by those rules, it will be found to be deficient in every respect. To have complied with the true spirit of the statute, the party, in his petition, should have stated the kind of action. He should have stated positively, that there was an undue influence, and his apprehension that he would be prevented from having a fair trial by that undue influence. Qr it should have stated what his defence was, and that an odium was attached to that defence. The affidavit should have been positive to these facts. If ihis construction does not prevail, the discretion which ibis statute intended to give the judge, is destroyed, and the party may remove his cause at pleasure.
    In support of the second error assigned, I rely upon the case of M'Clanahan vs. Respass, &c. , to shew that when a court sets aside a report of commissioners, under the occupying claimant law, which is good on its face, they should assign a sufficient cause for so doing, or it is error. So in chancery causes, all the proceedings and evidence are, or ought to be of record ; and if a step taken in them, or a finding of a jury be regular, and authorised by what is of record, it is error to set it aside, unless a good reason therefor be entered of record. The evidence in this cause will be found to warrant the first verdict returned in this suit. If the court erred upon this point, all the subsequent proceedings are a nullity. They cannot make the complainant’s case the worse. A suit determined by this court, Mr-Neely vs. Oldham's ex'rs. 
      , is full in point as to this position.
    Edwards, Ch. J. — I doubt whether the jury should not have found the several acts of mal-treatment by the husband, and left the court to draw the conclusion whether it amounted to cruel treatment, &c.
    Judge Logan_Another branch of this law says, that open and avowed adultery, is a cause for decreeing alimony. Would the court have the particular acts found in that instance ? I think not. And there should not be a difference in the practice under the two branches of this law.
    
      Allen proceeded
    — The jury are, under this law, to determine whether the husband has acted so as to come within any one branch of it ; and the court are to pronounce the proper decree, if he has. But if the chief justice’s doubts are well founded, both verdicts are erroneous, and the decree must be reversed.
    Emmerson, for the defendant,
    — The statute authori-sing a change of venue, is a remedial one, and should be liberally construed. The English statute concern-, ing bail, deservedly received a strict construction ; because its provisions went to deprive individuals of their, liberty. Here, after a change of venue, there is still a fair trial; and no penalty imposed on either party. The decisions on the English statute, should, therefore, be no guide ill the interpretation of the one under consideration.
    
      February 10th.
    The second error assigned, cannot be maintained. The chancellor, when he presides over the trial of an issue made up in a cause depending before him, has the same power to order a new trial, that the common law judge has: and as much credit is due to his order awarding a new trial, as to the order of a common law judge — that is, that it was done on sufficient ground ; unless the contrary be shewn by a bill of exceptions. There is no foundation for the distinction taken by the opposite counsel between the courts of common law and of chancery.
    The third error is equally untenable. If the suit was brought to. trial too soon, the exception should have been taken below before trial. It not having been then taken, ⅜ is now too late.
    
      
       Aits of 1800, ch, to, p. at.
    
    
      
      <?), A&s of i*°3> ch. 77, F’ “5-
    
    
      
       spring term 1806»
    
    
      
      
         Pt, dec, 325'
    
    
      
      ¿) June ijiofc.
    
   The Court delivered an opinion in writing, which, after a recital of the case, proceeded :

On the first objection contained in the first assignment of error, it will be sufficient to remark, that it has been heretofore decided by this court that a chancery cause is within the provisions of the law authorising a change of venue; and the court cannot now discern any reason of sufficient weight to impugn the decision.

The objections to the petition and affidavit thereto, have produced considerable difficulty : but the court is. strongly impressed that the objections cannot now be regarded. After the change of venue to the Adair circuit court, the complainant went on twice to trial in that court, without making any objection to the jurisdiction. After this, it seems to this court the objection comes too, late ; and that it would be doing great injustice, to turn the parties round, °n an objection of this kind, after incurring so much expence and trouble; which might have been avoided by making the objection in proper time. The objections to the petition and affidavit, are, in. their nature and the reason of the thing, like a plea to the jurisdiction of th,e circuit court of Adair: and the complainant ought to have taken advantage of them at her first appearance in that court, by moving the court of Adair to remove the cause to Wayne ; and having failed to do so, she has admitted the jurisdiction of the court*

It is a general rule or principle of the common law, that every order or proceeding of a judge, made at his chambers, out of court, is subject to be judged of, corrected, and, if illegal, controled by the court into which such order or proceeding, or the cause in which it is made, is returned. And although the act of assembly is silent as to a suit illegally removed, the defect is helped by this rule of the common law; which comes in aid of the statute ; and clearly conferred on the Adair circuit court the power of deciding on the face of the proceedings, whether the cause had been legally removed into that court or not. Many examples might be given establishing the propriety and necessity of this power; but one shall suffice. Suppose the messenger employed by the clerk, who is bound to transmit the papers, shotlld, through mistake, carry the papers to a different court from that to which the venue was changed, and the cause should be there docketed ; can it be doubted but that that court, upon application, would refuse to try the cause, and would remand it or direct it to be sent to the proper court.

It would seem a very extraordinary exercise of the appellate jurisdiction of this court, to reverse a judgment or decree of the circuit courts for irregularity in an order made in the progress of the cause by the judge, out of court, which might have been corrected in that court; but which was not corrected, because the party chose not to apply for redress. The exercise Of such a power by this court, would, in the general, be highly inconvenient and mischievous.

From this view of the subject, it will not be necessary for the court to determine whether the objections to the petition and affidavit are well founded or not.

This court is of opinion the circuit court erred, for the reasons alleged in the second and fourth assignments of error.

This being a chancery cause, in which every thing appears in the record, the setting aside the first finding oí the jury is clearly distinguishable from the granting a new trial at law. There it is impossible for this court to see whether the verdict given, was authorised by the evidence submitted to the jury or not ; or whether it was consistent with, or contrary to the j ustice of the ■case. And as the judge has a controling power over the jury, in granting a new trial, for attaining the ends of justice, this court bqing wholly uninformed on the subject, will presume he has properly exercised his power, unless the contrary appears. But here the whole evidence which was before the jury, appears in the record, so as to enable this court to determine whether the finding of the jury was supported by the proof and the justice of the case. Upon the merits of the question we have all the rights he had ; and therefore, the necessity of the case does not require us to presume so much in his power.

This court, on a mature consideration of the depositions filed in the cause, are clearly of opinion that the first finding of the jury was fully supported by the proofs in the cause, and perfectly consistent with the justice of the case.

This, then, being a chancery cause, in which every thing ought, and does usually appear in the record, it became the duty of the judge, when setting aside such a verdict, to shew, of record, the cause for setting it aside. Not having done this, the proceedings must be deemed erroneous ; and consequently the second trial, and the decree of dismission subsequent thereto, must be reversed and set aside.

It will be unnecessary for this court now to give any opinion on the third error assigned, as every proceeding in the cause subsequent to the first finding of the jury, is deemed irregular and erroneous.

Therefore, it is considered by the court, that the decree aforesaid be reversed, with costs ; that the cause be remanded to the court from whence it came, with directions to said court to enter up a decree for the complainant on the first verdict, unless the defendant shall shew some sufficient cause, to be stated on the record by the court, for setting it aside. 
      
      
         Woods vs. Fayette circuit court, on a mandamus, fpring term l$o6.
     
      
       Same point decided in the cafe of Woods vs. Patrick and wife, Spring term. 1808.
     