Deacon v. Shreve

Randolph, J. This action, being for damages occasioned by injuries to real estate, is certainly local, (1 Chit. Pl. 271) and, by the fourth section of the article relative to the Supreme and Circuit Courts, (R. S. 196,) local actions are to be tried in the county where the land in controversy lies or the cause of action arose, unless the court order a trial at bar ; whilst, by the fifth section, actions merely transitory shall, at the discretion of the court, be tried — 1. in the county where the cause arose; or 2. where either party resides ; or 3. if defendant be not an inhabitant of the state, in the county where process was served on him. We cannot, therefore, change the venue in this action, if sufficient cause were shown. And as to ordering a foreign jury, the facts disclosed in the affidavits are mere suspicions and opinions of individuals connected, more or less, with the former trials, that a fair trial cannot be had in the county ; but in a controversy of this kind between two mill owners, respecting the mere damage done by one to the other, and involving no matter of general interest, feeling, or excitement, the evidence should be very strong, indeed, to justify the court in ordering such a suggestion to be extended, and a venire to be directed to a foreign county. See 1 Sel. Pr. 436 ; 3 Burr. 1330, Rex v. Harris et al. We think the motion, in either aspect, should be refused. Ogden, J,, concurred.