delivered the opinion of the Court:
We will not discuss the subject in regard to the application for a change of a venue, because that point does not properly come before us upon this record.
The question whether the Legislature has power to change the venue 'in civil and in criminal cases, is a point of great magnitude and much delicacy, upon which we neither intimate nor give any opinion.
The defendant, by failing to except to the opinion of the Court, overruling his motion for a. change of venue, unquestionably waived his objection, and he cannot now be permitted to insist upon it here.
This inference is deducible from the facts stated in the record. Upon the writ of inquiry, he produced a witness to mitigate the damages. By this act, he then submitted himself to the verdict of the jury; and, consequently, he cannot now be allowed to put in issue the .correctness of the decision of the Court, refusing him a change of venue. A change of venue is a personal privilege, and the party has certainly a right to waive it. Again, the defendant below, upon the filing of his motion for a new trial, and taking his bill of exceptions, showed an entire willingness to have his cause tried in the Circuit Court, where it was commenced; and his motion for a new trial, and his bill of exceptions, expressly contrádict the supposition that he desired a change of venue.
Having then voluntarily waived a personal right, he cannot now allege that he was prejudiced by adjudication by the local Court, where he had consented that the cause should be tried. To adopt a different rule from the one here laid down, would be to introduce into the science of special pleading the utmost confusion and uncertainty, which is equally forbidden by the dictates of sound policy, and by all the well settled principles of practice in Courts of justice.
There are certain regular progressive steps, which the pleader is bound to adopt and follow, in all judicial proceedings. 1't is a general rule, to which there are few exceptions, that he who abandons one point or position, and selects another, must rest his cause upon it; and if that is adjudged against him, he will not be allowed to return to the first point, which he has voluntarily relinquished. The law supposes each party to ^understand his own cause, and it therefore holds him bound by bis election. This principle lies at the very foundation of all just reasoning, as well as all judicial investigation, and so it has been repeatedly determined by this Court.
Had the defendant appeared and pleaded to the action, and judgment had gone against him, he certainly would not have been permitted to come in and object to the local jurisdiction of the Court that tried the cause. His effort to mitigate the damages, his motion for a new trial, and his bill of exceptions, are all equivalent; to an appearance and plea. By making a compound issue of fact and of law, and referring its decision to the judgment of the Court, he thereby placed himself exclusively upon that ground; and the law holds him bound by his own choice.
The only remaining point to be determined, is, — are the damages excessive, or is the verdict contrary to evidence ?
This suit was brought by the plaintiff below, to recover certain fees, alleged to be due him as an attorney at law. The proof clearly supports the verdict. There were but three witnesses sworn upon the trial. Two of them deposed, that the fee charged, which was one thousand dollars, (and which corresponded with the verdict), was not unreasonable. One other witness, called on behalf of the defendant, does not state positively that the charge made was unreasonable, but he strongly intimates such an opinion. It was the province of the jury to compare and weigh the testimony. In the present case, they appear to have discharged their duty, and found according to the preponderance of the proof. The judgment of the Circuit Court must therefore be affirmed, with costs.