dissenting :
This case in the lower Court stands precisely in the condition that it would had the trial occurred on or before the first of October, 1869, seeing that the parties thereto consented that such trial should be postponed to a later day, and for reasons we know not, perhaps at the instance of, and for the convenience of, the moving party ; yet, certainly the legal presumption is, that such postponement was not detrimental to either, nor for which cause, either party can here claim any advantage. Hence, neither party can upon motion be entitled to a transfer of the cause back to Humboldt County, simply because the case was not tried in Ormsby County on or before the first of October. The proceedings had in the case on the eighteenth of October, 1869, and yet later — the tenth of January, 1870 — are by force of the agreement of the parties, in accordance with the terms of the stipulation, as fully performed as if these things had occurred on the preceding first of October. They had stipulated that a given day should be the limit of time when the trial should be had in Ormsby County, and the contracting parties thereafter agreed that the time should be extended, and consequently when the time originally appointed had by consent been passed over, time no longer could be considered in determining the relative jurisdiction of Ormsby and Humboldt Counties. Thereafter, in my judgment, the case could not be taken from Ormsby County except for statutory causes, none of which are shown.
In support of these conclusions, I refer to the several stipulations of the parties as appear in the record as follows: “ In the above entitled actions the parties by their counsel stipulate as follows :
I. That the venue of the two first above named actions shall be changed to the County of Ormsby, Second Judicial District, provided either Judge George G. Berry or Wm. H. Beatty will agree *244to preside at the trial hereinafter mentioned, and at a time fixed not later than the first day of October, next. That an order for such change may be made on filing a stipulation to that effect with the clerk of the District Court, Fifth District, which stipulation it is hereby agreed shall be made and signed in due form. It is further stipulated that in the event said trial does not take place on or before the first day of October, next, another order shall be made changing the venue back to the Fifth District, Humboldt County, unless the time for continuance of the actions in the Second District be extended by agreement and stipulation of the parties hereto.”
“ The parties in the above entitled action hereby stipulate that an order may be entered changing the place of trial of said action to the Second District Court, Ormsby County, State aforesaid, and that the clerk of the above entitled Court transmit all the original papers in said action with a copy of the order above named to the clerk of the District Court of the Second District.” That by verbal understanding of the parties, the action was postponed from time to time, until the eighteenth day of October, a.d. 1869, when a trial was commenced and ended by disagreement of the jury. The latter jury having been discharged, and no judgment entered, the Court upon the facts aforesaid granted plaintiffs’ motion for change of the place of trial of said action, and made an order accordingly. I think the order of the Court below ordering the case back to Humboldt County for trial was unauthorized, and therefore I must dissent from the judgment pronounced by my associates of the Court.