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.] 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 v. SKIPP. 1853. RAMSDEN v. 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. Nov. 23. Where a de- notice of trial, Nor upon an affidavit merely stating, in ad dition to the usual allegation that "the plaintiff's cause of action, if CLULEE V. BRADLEY. THE declaration (for goods sold and delivered, goods bargained and sold, and money found due upon an account stated,) in this case was delivered on the 29th of October, the venue being laid in Middlesex. On the 7th of November, an order was made by Williams, J., giving the defendant four days' time to plead, "pleading issuably, rejoining gratis, and taking short notice of trial, if necessary, for the sitting after this term." On the 8th, the defendant took out a summons calling upon the plaintiff to shew cause why the venue should 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. 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, 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. 1853. CLULEE v. BRADLEY. 1853. CLULEE v. BRADLEY. state in his affidavit all the circumstances on which he means to rely. He will not be allowed to add to or amend his case when cause is shewn. It will be sufficient, however, for him to rely on the fact that the whole cause of action arose in the county to which he desires to change the venue; but, if he does so, he may be answered by any affidavits negativing this fact, or shewing that the cause may be more conveniently tried in the county where the venue is laid. If made after issue joined, the affidavits in support of the application must shew that the issues joined may be more conveniently tried in the county to which the party applying proposes to change the venue. Of course, these affidavits are open to an answer by the other party. In all these cases, the court or judge will decide, after hearing both sides, whether the venue is to remain, or be changed as prayed, or be laid in some third county, according to its discretion" (a). [Jervis, C. J. Here, you are under terms. I understand all the judges of the court of Exchequer to be of opinion that that is (a) The learned reporters add the following note:- His lordship also stated, that a committee of the judges, to whom the subject had been referred, had drawn up the following report: "First, that, in their opinion, it is more convenient, as a general rule, that the application to change the venue by rule or summons may be made before issue joined: provided that this shall not prejudice either party from applying after issue is joined, to lay the venue in another county, if it shall appear that it may be more conveniently tried in such county.' Secondly, that a defendant, in his affidavit to obtain a 666 rule nisi to change the venue, or in support of a summons for that purpose, before issue is joined, should state all the circumstances on which he means to rely as the ground for the change of the venue; but that he may, if he pleases, rely only on the fact that the cause of action arose in the county to which he seeks to have the venue changed, which ground shall be deemed sufficient, unless the plaintiff shews that the cause may be more conveniently tried in the county in which it was originally laid, or other good reason why the venue should not be changed. (Signed) J. Parke. an answer to the application upon the common affidavit.] That brings it back to the old practice. My affidavit shews, not only that the whole cause of action arose in Warwickshire, but that all the witnesses, the plaintiff's as well as the defendant's, reside in that county. A rule nisi having been granted, Phipson shewed cause. The decision of the learned judge was correct, and this rule must be discharged. The affidavit upon which it is obtained is the common affidavit, save that it contains some additional matter which in reality amounts to nothing, viz. that the defendant and the plaintiff, and all the witnesses, as well on the part of the defendant, as (to the best of the deponent's knowledge and belief) of the plaintiff, reside in the county to which the venue is sought to be changed. Formerly, it was settled that the venue could not be changed upon the common affidavit, after an undertaking to plead issuably and take short notice of trial: but probably the defendant might have made such an application, after issue joined, upon an affidavit disclosing special grounds for it. There was no express authority for this latter position: but it is conceived that the practice was so, though there are two cases of Tonks v. Fisher, 2 Dowl. P. C. 22, and Haythorn v. Bush, 2 Dowl. P. C. 240, which rather look the other way. In both those cases, an affidavit in terms almost the same as here was held to amount to no more than the common affidavit. [Williams, J. In those cases, the application was made too soon to entitle the party to rely upon the special circumstances.] The probable origin of this practice will be found in Hunter v. Gray, Barnes, 493, where it is said, that, "though the having obtained an order for time to plead, generally speaking, is no hindrance to the changing of a venue, yet, if the defendant will consent to take notice of trial in the 1853. CLULEE v. BRADLEY. |