
    Serially against Wells.
    actions arising ex delwio, the venue will be changed to the county where action^arosef material' cvídence arising m the county where the ve^Stipulation to give, &c. in county?01wilf not do. It is a general ml ta tlmf. in
    
      Resabed, in assault and baltery.
    
    Assault and battery. T. E. Clark, on the usual affi- • davit, moved to change the venue from Schenectady to Onei- ¿ where the defendant swore that the cause of action ’ arose, and he had 20 witnesses residing,
    
      Paigei contra,
    read an affidavit shewing that the plain-^4 witnesses residing in Schenectady and Saratoga.
    
    
      Clark.
    
    We are out-numbered as to witnesses, hut the acfjon being for a tort, the plaintiff cannot retain bis venue ° .... without stipulating to give material evidence arising in the county °f Schenectady. It stands on the same footing, as an action of trover or trespass de bonis, fyc. (Ross v. Lown, 8 John. 354. Duryee v. Orcutt, 9 John. 249.)
   Curia.

This rule is general,, as to actions arising ex delictot We must change the venue., unless the plaintiff stipulate.

Paige. Will it not be a compliance with the rule, if we stipulate to give material evidence arising in the adjoining county of Saratoga ?

Curia. No. Ybu are confined to the county of Schenectady, where your venue is laid.

Time was given Mr. Paige, to advise whether he could stipulate with safety ; and the matter was not mentioned again in Court, that I heard. 
      
      
         If the plaintiff fail in doing that which he has undertaken, namely, ■to give material evidence at the trial, of some matter in issue arising in the county where the venue is laid, he will be non-suit. (2 W. Bl. 1031, and vid. 2 T. R. 281.) But it will be sufficient, if, for instance it be proved, that the deed upon which the action is founded was enrolled within the county, (Peake’s Ev. 213,) or in an action by the assignees of a bankrupt, to prove that the commission issued, and the bankruptcy was declared in the county. (2 M. & S. 36, but vid. 1 New Rep. 310,contra,) or, it seems, to prove that the cause of action arose abroad, (1 H. Bl. 280,) or, in an action in Middlesex, to prove a payment of money into Court, even though the money were paid in after the rule to retain the venue was obtained. (2 T. R. 275.) But the undertaking in this case must be understood to have reference only to the evidence necessary to support the declaration : and, therefore, if the defendant confess and avoid the whole cause of action, or plead a tender to the whole declaration, the plaintiff will not be bound to produce at the trial, the material evidence he undertook to give. (1 Taunt. 518, and vid. 3 Taunt. 86. Vid. 2 Archhold, 177.)
     