#### Alder *against*Griner.

TM nta°n no *venue*is stated in the body «on^but’oniy'to JioptefíS’seefStrument^waf no -variance if the instrument produced in evidencebear3date at a different place from that in which the ve*nue*is laid.

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THIS was an action of covenant, which was tried at the *New-York*sittings, in *April,*1816, before his honour the chief jus- + , u'“'c*

The declaration set forth articles of agreement, made the 30th of *April,*1810, between the plaintiff and defendant, by which the latter agreed to work for the plaintiff as a glass-man; and the breach was, that the defendant would not work for the plaintiff, ,. . . i . p *i*according to the articles of agreement. *Avenue*was laid m , . .. *r*the margin of the declaration, to wit, “ city and county oí *JVew-*» . , , *J*p , ■ ForL*’5 but there was no *venue*stated in the body or it. .At , * the trial, the plaintiff gave in evidence the articles of agreement upon which the action was founded, bearing date the 30th of *April,*1810, and which concluded thus: “ Done in Boston* in the day and year above mentioned.” The counsel for the defendant then moved for a nonsuit, on the ground of a variance between the instrument declared upon and that given in evidence ; as the one must be intended to have been executed in the city and county of *New -York,*and the latter appeared, on the face of it, to have been executed in *Boston.*The cause, however, was permitted to go to the jury, who. found a verdict for the plaintiff.

A motion was made to set aside the verdict, and for a new trial..

*C. M. Lee,*for the defendant,

contended, that no *venue*being stated in the body of the declaration, the *place*of the contract must be referred to that given in the margin,* which is *New-York;*and no contract, under this declaration, can be given in evidence, but one dated in *New-York.*
      *†*
      **But the instrument offered in evidence, in this case, Vyas dated at *Boston;*there was, therefore, a fatal variance.

*T. A. Emmett,*contra,

insisted, that the averment of the place was not necessary to give jurisdiction, for it could not be traversed. The declaration contains no averment that the contract was made in New-York, and its appearing to have been. *450made in *Boston'*is no variance. Preference is made to. the *margin*to help a defect of *venue*in the body of ¡the declaration 5 -such reference is never made to injure the plaintiff.* The case, stands precisely as if *no. venue*at all was stated, .and this is á defect which can only be taken advantage of on a special demurrer. Had it been averred that *Boston*was in *New York,*the court would not have allowed it to be traversed Or contradicted* Then why not intend, when nothing is said, that *Boston is*New *York ?*

1 *Chitty, Pl. 279. 9 Johns. Rep. 81.*

*1 Chitty Pl.*280. 283. 2 Wills. 399. Cro. Jack. 96. 1 Cowp. 177 2 Ld. Raym. 1040. 10 *Mod*255.

3 Term. Rep. 387.

Spencer, J.,

delivered the opinion ñf,the court. The instrument given'in evidence is dated at *Boston,*and there is no *venue.*in (he body of the declaration; in the margin there are- the words, “ city and county of *New York"*

The rule as to *venues,*is,, that when a transitory matter lias occurred abroad, it may-, in general, be stated to have occur*' red in an *English*county, without noticing the place where it, really happened ; but if the real place abroad be stated, which is necessary when the instrument declared on bears date.there, it should be shown under a *scilicet,,*that it happened, in an Eng-, Ush-county. The reason and effect of this rule is given by Lord *Mansfield,*in *Fabrigas*v. *Mostyn, (Cowp.*176.,) thus,, “'if a declaration state a specialty to have been made at *Westminister,*-in *Middlesex,*andón producing the deed,, it bears date in *Bengal,*the action is gone, because it is süch a variance be1 tween the deed and/the declaration as makes it appear to be •a different instrument/’

After a trial, a bad *venue,*or the want of one, is -cured by. ■ the statute of *jeofails.;*and *the venue*in the.margin will help, but not hurt, (3 *Term Rep.*387.)

Had the declaration, in this case,, stated the deed to have been .made at *New York,*we should., probably,, have been bound by authority, whatever may have been.our private opinions as •to the wisdom of the rule, tó set aside ¡ihe verdict bn the ground of variance ;• but it is not alleged that the deed was executed in *New York i*the words in the margin are not such a direct averment of the fact as to produce a variance; the place stated in the margin is intended for the *venue,*or place from whence the jury are to come, but not as a matter of local do* SCpiptidp of the execution of the deed!,' (11 *East,*118.)

Motipn denied?