
    Ross against Lown.
    In an action of tre.spnsssde boms asportatis, the venue had been changed, on the of the defendant’; county0™ "iaratrespass'16^6iyas committed ; and fheplaintiffifler.-wards applied to bring back the •venue to the d°'^y on "'the ladtwoIrtnore material, witnesses residing in that county ; hut the court refused to grant the motion, unless the plaiutift" Would stipulate to giye material evidence arising in the'county of Qnondpga.
    
    THE venue in this cause was laid in Onondaga county, ■ ■ ' ■ ■ V • : i ? and at the last May term it was changed, on an affidavit ' ' - , . of the defendant, that the cause of action arose in Saras toga, and not in Onondaga or elsewhere out of Saratoga, It was al> action of trespass for taking away the plaintiffs Soocls anfl chattels. The taking was alleged, in the declaration, to have been at Moreau, in Saratoga; the defend- ’ ’ f ' ant swore that he had four material witnesses resident . in Saratoga.
    The plaintiff pow moved to bring back the venue, and his &fhdayit stated that there were two or more witnesses, who will be material for him, residing in the county of Onondaga. His attorney stated that the notice to change the venue, for May term, came to his hands on Saturday before the commencement of May term, having been served on his agent at Albany, about eight days before; that he, on the Monday after he received the notice, procured the plaintiff’s affidavit on which to resist the motion, and sent it to his agent in New-York, who did not receive it til! some time in the second week. The rule for changing the venue had been then entered, so that the agent was prevented from opposing the motion. The affidavit then sent was substantially like the one now made, and oh which the present motion was founded.
   Per Curiam.

In Manning v. Downing, (2 Johns. Rep. 453.) the riile on the subject of changing the venue was laid down, and the court said, that they had an equitable power Over venues, and would exercise it, só as to promote the convenience of suitors and save expense to the parties ; and that in actions arising on contracts, they Would not permit the plaintiff, by a stipulation, to retain the venue, when the defendant would satisfy the court that he had witnesses material to his defence in a distant county; and, accordingly, in that case, the defendant having sworn that he had several witnesses residing in Columbia, material to his defence, the court required the plaintiff, in order to retain the venue, to satisfy them by affidavit, that he had material witnesses in New-York.

The present case is in trespass de bonis asportatis, and we have not, as yet, extended the rule laid down in Manning v. Downing, to such a case. By the practice of the king’s bench, on the present affidavit, the defendant would be entitled to change the venue, unless the plaintiff stipulated to give material evidence, arising in Onondaga; and without such stipulation, the venue ought to be retained where it now is, in Saratoga. The place where the goods were taken, must, in all probability, be the place where the witnesses reside, and in that county the trial ought to be; not on the exploded notion for the purpose of having the cause tried by a jury of the vicinage, but because the convenience of the parties will be promoted by it, and there will be a saving of expense,, in regard to witnesses.

Unless, therefore, the plaintiff will stipulate to give material evidence arising in Onondaga, the motion to carry back the venue to that county must be denied.  