#### Bela T. Hunt, impleaded with O. H. Giles, Appellant, v. Edward I. Tinkham, Appellee.

APPEAL FROM COOK.

The statute positively requires that notice of a motion for a change of venue shall be given.

This was an action of assumpsit, upon a note and an account. The defendant filed the general issue, as also special pleas.

On the 16th day of July, 1857, the pleas were filed, verified by defendant. On the 23rd October, 1857, Hunt made application as follows for a change of venue:

To the Hon. John M. Wilson, Judge of the Cook County Court of Common Pleas, of the State of Illinois:

Bela T. Hunt, the above named defendant, respectfully represents that he fears that he will not receive a fair trial of this action in the Cook County Court of Common Pleas, in which this action is pending, on account of Edward I. Tinkham, the above named plaintiff, (the above party,) has an undue influence over the minds of the inhabitants of said county of Cook. Your petitioner further shows that the above fact of undue influence first came to his knowledge on the 22nd day of October, A. D. 1857. Your petitioner therefore prays for a change of venue to some county where the above causes do not exist. Sworn to on the 22nd day of October, 1857.

*640This application was denied.

There was a judgment for the plaintiff below, and Hunt prayed this appeal.

Barry & Beveridge, for Appellant.

Clarkson & Tree, for Appellee.

Caton, C. J.

The court properly overruled the motion to change the venue. No notice of the motion was given, and the statute positively requires a notice. It is a misapprehension to say that here no notice could have been given. It is certain that at least one day’s notice, could have been given, for the affidavit is made the day before the motion, and there is no excuse shown why notice was not given as the statute required.

The judgment must be affirmed.

Judgment affirmed.