Harrower against Betts

Harrower against Betts. It seems the plaintiff may retain his venue by stipulating to pay the expense of the defendant’s witnesses. But the defendant has no right to a change of the venue by stipulating to pay expense of the plaintiff’s witnesses. Assumpsit. A motion was made in behalf of the defendant, on the usual affidavit, to change the venue from Steuben to Chenango : but being opposed by an affidavit of the plaintiff, in the usual form, showing that he had a greater number of witnesses residing in Stéuben, than the defendant’s affidavit showed on his part, who resided in Chenango ; in order to procure a change of the venue, notwithstanding the balance of witnesses was against him, the counsel for the defendant produced and offered to the counsel for the plaintiff a stipulation in writing, signed by the defendant’s attorney, “ to pay all the expenses of the plaintiff’s witnesses who should attend to give evidence in this cause from the county of Steuben, or from any place within 30 miles of the court house in that county and insisted that the Court would change the venue upon such a stipulation, though the balance of witnesses be in favor of the county where the venue is laid. J. C. Clark, for the motion. H. Welles, contra. [MAJORITY — Curia.] Curia. It seems that the plaintiff would be allowed to retain the venue, on such a stipulation, though the defendant have the greater number of witnesses in the county to which he moves to change it. (Worthy v. Gilbert, 4 John. Rep. 492.) But the defendant has no right to change the venue upon stipulating to pay the expense of the plaintiff’s witnesses. Motion denied.