
    Alder against Griner.
    ™ nta°n no venue is stated in the body «on^but’oniy'to JioptefíS’seefStrument^waf no -variance if the instrument produced in evidencebear3date at a different place from that in which the venue is laid.
    st beei byat0efdthedtdai rauo"'
    THIS was an action of covenant, which was tried at the New-York sittings, in April, 1816, before his honour the chief jus- + , u'“'c*
    The declaration set forth articles of agreement, made the 30th of April, 1810, between the plaintiff and defendant, by which the latter agreed to work for the plaintiff as a glass-man; and the breach was, that the defendant would not work for the plaintiff, ,. . . i . p i according to the articles of agreement. Avenue was laid m , . .. r the margin of the declaration, to wit, “ city and county oí JVew- » . , , J p , ■ ForL*’5 but there was no venue stated in the body or it. .At , * the trial, the plaintiff gave in evidence the articles of agreement upon which the action was founded, bearing date the 30th of April, 1810, and which concluded thus: “ Done in Boston* in the day and year above mentioned.” The counsel for the defendant then moved for a nonsuit, on the ground of a variance between the instrument declared upon and that given in evidence ; as the one must be intended to have been executed in the city and county of New -York, and the latter appeared, on the face of it, to have been executed in Boston. The cause, however, was permitted to go to the jury, who. found a verdict for the plaintiff.
    A motion was made to set aside the verdict, and for a new trial..
    
      C. M. Lee, for the defendant,
    contended, that no venue being stated in the body of the declaration, the place of the contract must be referred to that given in the margin, which is New-York; and no contract, under this declaration, can be given in evidence, but one dated in New-York.
      
       But the instrument offered in evidence, in this case, Vyas dated at Boston; there was, therefore, a fatal variance.
    
      T. A. Emmett, contra,
    insisted, that the averment of the place was not necessary to give jurisdiction, for it could not be traversed. The declaration contains no averment that the contract was made in New-York, and its appearing to have been. made in Boston' is no variance. Preference is made to. the margin to help a defect of venue in the body of ¡the declaration 5 -such reference is never made to injure the plaintiff. The case, stands precisely as if no. venue at all was stated, .and this is á defect which can only be taken advantage of on a special demurrer. Had it been averred that Boston was in New York, the court would not have allowed it to be traversed Or contradicted* Then why not intend, when nothing is said, that Boston is New York ?
    
    
      
       1 Chitty, Pl. 279. 9 Johns. Rep. 81.
      
    
    
      
      
        1 Chitty Pl. 280. 283. 2 Wills. 399. Cro. Jack. 96. 1 Cowp. 177 2 Ld. Raym. 1040. 10 Mod 255.
    
    
      
       3 Term. Rep. 387.
    
   Spencer, J.,

delivered the opinion ñf,the court. The instrument given'in evidence is dated at Boston, and there is no venue. in (he body of the declaration; in the margin there are- the words, “ city and county of New York"

The rule as to venues, is,, that when a transitory matter lias occurred abroad, it may-, in general, be stated to have occur*' red in an English county, without noticing the place where it, really happened ; but if the real place abroad be stated, which is necessary when the instrument declared on bears date.there, it should be shown under a scilicet,, that it happened, in an Eng-, Ush-county. The reason and effect of this rule is given by Lord Mansfield, in Fabrigas v. Mostyn, (Cowp. 176.,) thus,, “'if a declaration state a specialty to have been made at Westminister, -in Middlesex, andón producing the deed,, it bears date in Bengal, the action is gone, because it is süch a variance be1 tween the deed and/the declaration as makes it appear to be •a different instrument/’

After a trial, a bad venue, or the want of one, is -cured by. ■ the statute of jeofails.; and the venue in the.margin will help, but not hurt, (3 Term Rep. 387.)

Had the declaration, in this case,, stated the deed to have been .made at New York, we should., probably,, have been bound by authority, whatever may have been.our private opinions as •to the wisdom of the rule, tó set aside ¡ihe verdict bn the ground of variance ;• but it is not alleged that the deed was executed in New York i the words in the margin are not such a direct averment of the fact as to produce a variance; the place stated in the margin is intended for the venue, or place from whence the jury are to come, but not as a matter of local do* SCpiptidp of the execution of the deed!,' (11 East, 118.)

Motipn denied?  