Serially v. Wells

If the plaintiff fail in doing that which he has undertaken, namely, ■to give material evidence at the trial, of some matter in issue arising in the county where the venue is laid, he will be non-suit. (2 W. Bl. 1031, and vid. 2 T. R. 281.) But it will be sufficient, if, for instance it be proved, that the deed upon which the action is founded was enrolled within the county, (Peake’s Ev. 213,) or in an action by the assignees of a bankrupt, to prove that the commission issued, and the bankruptcy was declared in the county. (2 M. & S. 36, but vid. 1 New Rep. 310,contra,) or, it seems, to prove that the cause of action arose abroad, (1 H. Bl. 280,) or, in an action in *197Middlesex, to prove a payment of money into Court, even though the money were paid in after the rule to retain the venue was obtained. (2 T. R. 275.) But the undertaking in this case must be understood to have reference only to the evidence necessary to support the declaration : and, therefore, if the defendant confess and avoid the whole cause of action, or plead a tender to the whole declaration, the plaintiff will not be bound to produce at the trial, the material evidence he undertook to give. (1 Taunt. 518, and vid. 3 Taunt. 86. Vid. 2 Archhold, 177.)