
    Gasaway vs. Smith.
    1. The act of J819, ch. 43, see. 1. gives to the plaintiff and defendant each a right to change the venue once only.
    2. Where the circuit court on motion for a change of venue based upon the affidavit of the plaintiff and three other persons overruled such motion: Held, that the circuit court having discretion vested in it by the terms of the act of 1825, ch. 78, sec. 1, to determine whether “the cause” assigned “is good” or “the truth thereof evident and credibly supported” the supreme court will not supervise the exercise of such discretion.
    This action on the case was instituted in the circuit court of Bradley county by Gasaway against Smith, on the 30th day of August, 1839. The declaration sets forth as ground of action a malicious prosecution of the plaintiff" by the defendant for larceny. The defendant pleaded not guilty and issue was joined thereupon. At the December term, 1840, an application was made by the defendant to change the venue. With this view the defendant filed his affidavit, in which he stated that owing to the contrivance of the plaintiff", or from some other cause, the people of Bradley county had become so prejudiced against him that he could not get justice done him. He therefore prayed that the case “be removed from Bradley county.”
    He also presented the affidavits of three individuals which set forth that they believed the affidavit of defendant was true.
    Thereupon an order was made as follows: “it appearing to the satisfaction of the court from the affidavit of the defendant and three respectable persons, that the venue should be changed from the county of Bradley, it is ordered that it be transferred to the county of Polk, and that the clerk of the circuit court of Bradley send a full and perfect transcript of the record to the clerk of the circuit court of Polk.” The record was accordingly certified and transmitted to the clerk of Polk county. At the February term 1841, the cáse was continued by the plaintiff. At the June term 1841, the cause was submitted to a jury of Polk county. The jury not being able to agree, a mistrial was entered. At the February term 1842, the case was again submitted to a jury and they not being able to agree, a mistrial was entered by consent of parties.
    At the same term, on a subsequent day, the plaintiff moved the court for a change of venue, and filed his affidavit and the affidavit of three other individuals in support of his motion.
    His affidavit stated that the venue was changed by the defendant without his consent, to the county of Polk; that he was absent at the time the venire was changed to said county, that the defendant resided in Polk county, near the seat of justice and also the chief witnesses of the defendant, and that he was well satisfied that he could not get a fair and impartial trial of his case in that county.
    Henry, Towns, and Westfield made an affidavit in the following words: “We the undersigned, freeholders of the county ofPolk, and not interested in the case of Gasaway vs. Smith, make oath that from what we have heard and seen amongst the citizens of Polk county, that we believe the grounds stated in the affidavit of Gasaway for a change of venue is true.”
    The motion was argued and after argument the court overruled the motion. The ground on which the court overruled the motion is not stated in the record or bill of exceptions to the opinion of the court overruling the motion.
    The case was thereupon submitted to ajury, and much testimony adduced of a conflicting character in reference to the cow, which was the subject of the alledged larceny, Smith and Gas-away each claiming to have purchased her from Cherokee Indians, which it is not necessary here to set forth. The jury rendered a verdict in favor of the defendant, and motion for a new trial was made, which, Keith, the presiding judge, overruled, and rendered judgment thereupon. The plaintiff appealed in error.
    
      Trewhitt, for the plaintiff.
    Jarnagin, for the defendant.
   Reese, J.

delivered the opinion of the court.

This is an action in the case for a malicious prosecution commenced in the county of Bradley, and in which, on the application and affidavit of the defendant, verified by the oath of three other persons, the venue was changed to the county of Polk. After the cause had been for some time depending in the latter county, application was made by the plaintiff to change the venue from that county. The grounds of public prejudice stated in his affidavit as calculated to prevent a fair and impartial trial, are verified by the oaths of three other persons who state themselves to be disinterested, and tobe freeholders of Polk county. The change of venue asked for was refused by the circuit court, but whether the refusal took place because of a supposed defect of power on the part of the court to grant a second change of venue in the same cause, or because the court was of opinion that the ground stated was not good, or if good, that the truth thereof was not evident and creditablysup-ported, we are unable to learn from the bill of exceptions, which states only that the application was refused. It is argued, however, that the court had no power, although satisfied of the truth and sufficiency of the grounds stated in the application to grant a second change of venue. The act of 1819, ch. 43, provides “that in all criminal cases, the defendant or defendants shall be entitled to only one change of venue, and that in all civil causes neither party shall be entitled to change the venue, but once only.” The clause, “neitherparty shall be entitled to change the venue but once only,” has been made the theme of verbal criticism and of grammatical construction somewhat nice, namely, that the words “neither party,” as here used, have a collective sense, and that the negation of more than one trial is predicable of the plaintiff and defendant conjointly, the clause in meaning being equivalent to the ¡provision that in no civil cause shall more than one change of venue be allowed. If such had been the purpose of the legislature it could have been easily and distinctly expressed. We take the sense to be, that in a criminal case the defendant can claim but one change of venue, and the defendant in a civil case can claim no more, and the rights of the plaintiff are no greater; he can claim no more; a conjoint right of change of venue, limited to one instance, it would be a little absurd to concede to adversary parties struggling with each other on that very subject. But it does not appear that the circuit court so thought or so ruled. The act of 1825, sec. 78, provides that of the “cause or causes for change of venue, made and supported as aforesaid, the judge presiding on the cause shall 0071-side?-, and if in his opinion the cause is good, and the truth thereof evident and credibly supported, he may and shall allow the change prayed for.” How shall we say, in such a case, that the circuit court when co?isidering of this application, erred in believing the cause assigned not to be'good, or the truth evident, and credibly supported. There certainly are many things which the discretion of the circuit court must determine and which may be safely left to be determined by it; there are many things done and transacted there, as to which, from their very nature, the supervision of this court would be difficult and could not be made effective. This we think is one of them. Let the judgment be affirmed.  