Rightmyer v. Raymond , 12 Wend. 51 ( 1834 )

By the Court,

Savage, Gh. J.

There is no good reason for granting a new trial in this case. Tt is true, that by the revised statutes, all actions for injuries to personal property were made local; that is, they were required to be tried in the county where the cause of action arose. It is stated by Mr. Chitty, that in local actions in the superior courts, the only modes of objecting to the venue is by demurrer, or at the trial as a ground of nonsuit. If the objection appear on the record, a demurrer is proper ; if it does not so appear, the defendant may avail himself of it on the trial as a ground of nonsuit. 1 Chitty’s Pl. 284. When this cause was tried, the defendants were entitled to a nonsuit on that ground; but since the trial, the legislature, by the act of the 20th April, 3833, have said that actions on the case for injuries to personal property shall be tried in the county where the venue is laid. Trover is now a transitory action. If a new trial be granted, this cause may be tried in the county where the venue is now laid; and if it be granted, it must be with costs to abide the event. I do not therefore perceive, as far as that objection goes, that it will be of any service to grant a new trial.

The jury by their verdict have settled all the questions of fact as to the mode of sawing the logs, and the principles upon which the plaintiff’s damages should be estimated; and there can be no doubt of the law as the judge stated it to the jury. The plainiiff had not parted with his interest in the lumber by its being sawed into boards and plank, and the defendant Raymond had no right to take the plaintiff’s share until he had complied with his contract, by giving security for the amount of its value. The offer of security which was made amounted to nothing, so long as the sum was insufficient.

New trial denied.