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county where the action is originally laid, that consent shall bind him: had the judge been informed of the defendant's intention to move to change the venue, he would have made his order without prejudice to such motion." Assuming the practice to have been as above stated, does the 18th rule of Hilary Term, 1853,— which provides that "no venue shall be changed without a special order of the court or a judge, unless by consent of the parties,"-make any difference in this respect? How is the special order to be obtained? In De Rothschild v. Shilston, 8 Exch. 503, the application was made upon the common affidavit, and before issue joined. The order there was made by Platt, B.; and the court held that it was rightly made: but they go on to say, that, "the party applying should state in his affidavit all the circumstances on which he means to rely." "It will be sufficient, however," they further say, "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." As a common affidavit, this is clearly too late, being after time taken to plead, on terms: and, as a special affidavit, it is insufficient. [Maule, J. The new rule says, in effect, that a party shall not get an order to change the venue, without giving the other side an opportunity to answer the application, the object being, to obviate the necessity of resorting to the clumsy expedient of bringing back the venue, upon an undertaking to give material evidence in the county where it was originally laid. Williams, J. This rule would not have been granted upon the common affidavit only.] The special ground here is clearly insufficient: it ought to shew the general ground of the defence, and that the defendant will call witnesses: it

should shew that the preponderance of convenience in
having the cause tried in the county to which it is
sought to carry it, is great: and, though Littledale, J.,
doubted the necessity of that, in most of the cases there
was an affidavit of merits. In Crompton v. Stewart,
2 C. & J. 473, which was an action of covenant upon a
mortgage-deed, Bayley, B., said: "The venue cannot in
such a case be changed upon the usual affidavit; and, in
order to lay a ground for a special application, with a
view to save the expense of bringing witnesses from a
distance, the defendant should shew by affidavit that it
will be necessary for him to call witnesses to prove a
defence." So, in Tonks v. Fisher, 2 Dowl. P. C. 22,
where the affidavit stated that the cause of action arose
in Warwickshire, and that all the witnesses resided
there, Bayley, B., said: "You do not say that there
are any." In Parmeter v. Otway, 3 Dowl. P. C. 66,
the affidavit was like this; and Littledale, J., says:
"According to the late cases, a great deal more parti-
cularity than formerly appears to be required. I do.
not think, however, it is very distinctly laid down that
there must be an affidavit of merits. On the authority,
however, of Ladbury v. Richards, 7 J. B. Moore, 82, I
think the proposed defence intended to be set up ought
to be fully disclosed. Unless that is done, I think suffi-
cient is not shewn by the defendant to entitle him to
change the venue. I think on that ground alone the
rule ought not to be made absolute. It seems to me to
have been required by the court, in some of the cases,
that the defendant should swear that he means to exa-
mine witnesses. I doubt very much whether that is
necessary. I think that it is sufficient if the ground of
his defence is fully disclosed." In Thornhill v. Oastler,
7 Scott, 272, the defendant sought to change the venue
from London to Yorkshire, upon an affidavit stating,
that, in order to establish a set-off which he had pleaded,

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it would be necessary to unravel accounts of eighteen years' standing, that he had sixty witnesses to subpœna, all of whom resided in Yorkshire, and that a trial in London would occasion an additional expense to him of more than 2007.: but Tindal, C. J., said: "The plaintiff's right, in a transitory action, to lay the venue where he pleases, is undoubted; and, before we deprive him of it, we must be clearly satisfied that justice cannot be done between the parties unless we do so: the preponderance of convenience must be very great indeed.. I never heard an application of this sort made without something more specific than appears here." [Talfourd, J. At the present day, it may be cheaper to try by Warwickshire witnesses in London than in Warwick.] Can it be said that a special affidavit which was bad under the old practice, is good now? [Williams, J. Unanswered, the present affidavit shews that Warwickshire is the legitimate place of trial for this case.] Parmeter v. Otway answers that. In Huns v. Pawlett, antè, Vol. V, p. 806, there was a very special affidavit; but Wilde, C. J., said: "The defendant must have been fully apprised, when the declaration came to his hands, of the nature of the plaintiff's demand against him. He had then all the information necessary to enable him to judge whether or not it would be proper to move to change the venue. Instead of adopting the ordinary course, he obtains two several orders for time to plead, and now, at the eleventh hour, comes for leave to change the venue on special grounds,-the effect of which, if successful, would be, to postpone the trial of the cause until July or August next. To justify this, he should at least shew circumstances that reasonably entitle him to what he asks. All he states, is, that all the material and necessary witnesses on his behalf,-which may be one only,-reside in the county of Cambridge. For anything that appears, the plaintiff may have many wit

nesses in or near London.

In

The defendant was bound to shew a manifest preponderance of convenience in trying the cause in the county to which he seeks to remove the venue. In this respect, his affidavit is deficient: and therefore I think his rule must be discharged." Smallcombe v. Williams, antè, Vol. VII, p. 77, where the venue had been changed, at the instance of the defendant, upon the common affidavit, from Gloucestershire to Bristol, and restored to Gloucestershire without an undertaking to give materal evidence there, the court refused to change it to Bristol, upon an affidavit that the cause of action arose wholly in the latter place, that the witnesses the defendant would produce at the trial were very numerous, and all resident in Bristol, and that the plaintiff was a person in indigent circumstances, and unable to pay costs if she failed to obtain a verdict. court there said: "You are bound to shew some manifest inconvenience that would result from trying the cause at Gloucester. Your affidavits do not state the number of your witnesses; and, non assumpsit being the only plea, there cannot possibly be many necessary. Besides, Gloucester is now only about an hour or an hour and a half's journey from Bristol." And, in the recent case of Ramsden v. Skipp, ante, p. 601, this court held that the application to change the venue under the new rule must be founded upon a special affidavit.

The

Manisty, in support of his rule. It is not contended that the affidavit in this case would have been sufficient, under the antient practice, to sustain an application to change the venue after issue joined. Great particularity was required in such cases, the parties being supposed to know the precise position they would be in at the trial. The position this defendant stands in is this: he had by the common law a right to have his cause tried in the county where the cause of action arose. Issue was not

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joined. When, therefore, the defendant was before
Cresswell, J., he was in the position of a party having a
common-law right to change the venue to Warwickshire.
All question about special grounds for the application
may
be thrown out of consideration. Since the new rule
of Hilary Term, 1853, there is no longer a common
order to change the venue. There are now two modes
of procedure,—the one, a special application, founded
upon the common affidavit,—the other, a special appli-
cation, founded upon a special affidavit. Either may, it
seems, be made as well before as after issue joined, ac-
cording to the rule propounded by the Court of Ex-
chequer. No summons for time to plead is now issued
with the words "without prejudice to an application to
change the venue" in it. [Maule, J. I have repeatedly
struck out those words.] The present affidavit, un-
answered, is clearly sufficient to support the application,
even upon special grounds. [Maule, J. The undertaking
is a good answer.]

MAULE, J. (a). I cannot feel the smallest doubt or difficulty in this case. There is no foundation whatever for the supposition that the new rule, which is negative in terms,-"no venue shall be changed without a special order of the court or a judge,"-deprives the undertaking of the defendant to take short notice of trial for the particular sittings, of all effect. This is an application by a defendant who has entered into that undertaking, to change the venue from Middlesex to Warwickshire, on the ground 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 county of Warwick. The fact that the cause of action wholly arose in Warwick, gave the defendant a common-law

(a) Jervis, C. J., was absent, on account of indisposition.