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1853.

me, I will make him a bankrupt,” that necessarily implies that he has the power to carry his threat into execution.

BROWN

o. SMITH.

JERVIS, C. J. I think I was wrong in this case. I told the jury that the questions for their consideration were, whether the words were spoken, whether the damage alleged resulted from the speaking of them, and what damages the plaintiff was entitled to,--and that this would depend upon Stringer's evidence. I think I was wrong in so limiting it. The jury, however, have

, set that right: and I agree with the rest of the court in thinking that there is no ground for disturbing their verdict.

Rule refused.

the new rule of

RAMSDEN V. SKIPP.

May 6. DEBT for goods sold and delivered. The venue was the court in. laid in London. On the 24th of March, 1853, an order that the affida

clined to think was made by Platt, B., at chambers, at the instance of vit in support

of an applicathe defendant, to change the venue from London to tion for a spe

cial order to Gloucestershire, upon the common affidavit " that the change the plaintiff's cause of action, if any, arose in the county of venue, since Gloucester, and not in the city of London, or elsewhere Hilary Term,

1853, r. 18, out of the said county of Gloucester." On the 6th of April, the defendant pleaded never in

ed upon an

affidavit disdebted; and, on the 16th, application was made by the closing special

i plaintiff to Maule, J., at chambers, to change the venue [But see the from Gloucester to Middlesex, where it was alleged the next two cases, delivery of the goods took place. The learned judge, seems that the

common affi. however, declined to interfere, but referred the party to davit, if unthe court.

answered, will

suffice.] VOL. XIII.-C. B.

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must be found

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circumstances.

1853.

RAMSDEN

o. SKIPP.

Ball, on a former day in this term, moved for a rule nisi to rescind the order of Platt, B., and to change the venue from Gloucestershire to London, upon an affidavit stating "that the cause of action did not arise in the said county of Gloucester either wholly or in part, but in the county of Middlesex, and not elsewhere out of the said last-mentioned county, except so far as the same may have partly arisen in the said city of London, the said goods having been purchased by the defendant of the plaintiff within the said city ; that the witnesses in the plaintiff's behalf in this cause reside in London or the immediate neighbourhood thereof; and that considerable additional expense will be incurred, should the trial of this cause take place in the county of Gloucester, instead of the city of London or county of Middlesex.” [Williams, J. Why did you not answer the matter before my Brother Platt?] The attorney was under an impression that the 18th rule of Hilary Term last, which provides that "no venue shall be changed with

“ out a special order of the court or a judge, unless by consent of the parties,” required that special grounds for changing the venue should be laid before the judge, as was formerly the case where the application to change the venue was made after issue joined. (Jervis, C. J. If you have made a mistake, you must at all events pay for it.] A rule nisi having been granted,

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Atherton now shewed cause. The order of Mr. Baron Platt was made without any substantial resistance on the part of the plaintiff. He now comes with a sort of double appeal against that order, and against the refusal of Maule, J., to interfere with it. The plaintiff, by ap

. plying to Mr. Justice Maule, not to rescind the former order, but to change the venue to Middlesex, must be taken to have acquiesced in the decision of Platt, B. And the affidavit now presented to the court shews no

1853.

RAMSDEN

ground for changing the venue from the county of Gloucester. It should at least be made to appear that the convenience preponderates greatly in favour of a trial in Middlesex. [Cresswell, J. Does not the new rule require something more than the common affidavit? I think I should not act upon it.]

SKIPP,

Ball, in support of the rule. Issue not having been joined, the special order could not be made. [Atherton. That is an objection to the order of Platt, B.; and it is too late for the plaintiff to object to that, he having since taken a step.] [Jervis, C. J. Does the plaintiff's

[ affidavit shew that the cause would be more conveniently tried in Middlesex ?] It shews that all the witnesses reside in Middlesex, and that great additional expense would be incurred by a trial in Gloucestershire.

JERVIS, C. J. I am of opinion that the first alternative of this rule, - to rescind the order of my Brother

,– Platt,-should be made absolute. That order seems to be vulnerable upon two points. In the first place, when the old course of proceeding was abolished, it was intended that the special order should be made with reference to what was to be tried. As at present advised, I think the special order cannot be obtained until after issue joined ; and that the same circumstances which under the old practice justified the special application to change the venue, apply to the special order under the new rule. Further, I think my Brother Platt took an erroneous view of the matter. The new rule never intended that the special order to change the venue should be granted upon the common affidavit, which would render necessary another application to bring back the venue. When the rule speaks of a special order, it must mean an order founded upon an affidavit of the special circumstances. The mere formal affidavit,

1853.

RAMSDEN

0. SKIPP.

according to my present impression, does not comply with the new practice. I think the application should be made upon an affidavit of the special circumstances, and after issue joined. I think there is no foundation for the suggestion that the plaintiff is estopped by his supposed acquiescence in my Brother Platt's order, from now applying to rescind it. My Brother Maule seems to have treated the application to him as an appeal from my Brother Platt's order. I think the rule should be made absolute to rescind that order.

The rest of the court concurring,

Rule absolute accordingly. (a)

(a) The rule suggested in the principal case having been qualified by the two following

cases, it has been thought convenient to insert them here.

CLULEE V. BRADLEY. Nov. 23.

THE declaration (for goods sold and delivered, goods Where a defendant is under terms to

bargained and sold, and money found due upon an take short

account stated,) in this case was delivered on the 29th of notice of trial, he cannot move October, the venue being laid in Middlesex. On the 7th to change the

of November, an order was made by Williams, J., giving venue, upon the common the defendant .four days' time to plead, "pleading affidavit. Nor upon an

issuably, rejoining gratis, and taking short notice of affidavit merely stating, in ad-trial, if necessary, for the sitting after this term.” dition to the

On the 8th, the defendant took out a summons calling usual allega tion that “the upon the plaintiff to shew cause why the venue should plaintiff's cause of action, if

not be changed from Middlesex to the Warwick division any, arose in the county of W. (to which it was sought to change the venue), and not in M. (the original county), or elsewhere out of the said county of W.,"—that both parties, and the witnesses on both sides, reside in the county to which it is sought to change the venue.

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1853.

CLULEE

BRADLEY.

of the county of Warwick. This summons came on for hearing before Cresswell, J., on the 10th, when it was sought on the defendant's part to support it by an affidavit “ that the plaintiff's cause of action, if any, arose in the county of Warwick, and not in the county of Middlesex, or elsewhere out of the said county of Warwick; and that the defendant and the plaintiff, and all the witnesses in this case, as well on the part of him the defendant, as (to the best of the deponent's knowledge and belief) of the plaintiff, reside in the said county of Warwick.” The learned judge, however, declined to make any order, on the ground that the defendant was under terms to take short notice of trial for the sittings after this term.

On the 11th of June, the defendant pleaded never indebted, and on the 12th the plaintiff delivered the issue, with a notice of trial for the sittings after term. On the 15th,

а

Manisty moved, upon the affidavit used at chambers, for a rule nisi to change the venue from Middlesex to the Warwick division of the county of Warwick. [Jervis, C. J. If my Brother Cresswell exercised his discretion, we cannot interfere. If you wish to review his decision, you must come prepared with an affidavit of what passed before him.] The required affidavit having been produced, Manisty referred to De Rothschild v. Shilston, 8 Exch. 503, where the rule on this subject is thus stated by Pollock, C. B.:-“The general rule on this subject may be thus stated; and we may say that we believe it may be taken as the general opinion of all the judges. The application for this purpose may be made either before or after issue joined, as may be most convenient to the parties in the proper conduct of the

If the application be made either before or after issue joined, it is requisite that the party applying should

cause.

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