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Brooks v. Hunt

1 Cole. & Cai. Cas. 468 Court N.Y. Sup. Ct. English

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Majority

p. 468
Brooks v. Hunt.

Headnote

HENRY moved for judgment as in case of non-suit on an affidavit, merely stating for “ not bringing
p. 469
the cause to trial at the last circuit, in and for the <( county of Montgomery,” according to the practice of the court.
Paris, contra,
objected that it did not specify where the venue[1] was laid.
Henry
insisted it appeared from irresistible implication, to have been in Montgomery.

The affidavit is defective. Had this cause been with a venue in New- York, the same mode of swearing would have entitled you to your judgment. We are not to infer facts from affidavits, when the party has it in his power to state them positively. The motion must be denied.