Gibbs v. Scott — 1 Cole. Cas. 127

Majority

p. 127

Gibbs ads. Scott.

Headnote

THIS was a motion to change the venue in an action of slander, from the County of Albany to Washington; founded on the affidavit of the defendant's attorney, stating that the cause of action arose in Washington and not elsewhere, &c. as the plaintiff had informed him, and he verily believed to be true.

On the part of the plaintiff this was opposed by a counter affidavit, slating that " according to his "persuasion and belief he could not have an impartial trial in the County of Washington by reason of certain local prejudices."

The first question is, whether the affidavit on the part of the defendant ought not to have been made by the defendant himself, according to the established practice? As the attorney swears, however, that the plaintiff confessed to

p. 128

him that the cause of action arose in Washington, and not elsewhere, &c. this may be deemed sufficient; especially as the fact is not denied by the plaintiff. As to the counter affidavit, it cannot avail to retain the venue, inasmuch as the defendant only swears to “ his persuasion and belief that “ he cannot have a fair trial, by reason of certain “ local prejudices,” &c. He ought to have stated the reasons and ground of his belief, and have laid before the Court the facts and circumstances on which it depends, that they might judge of its probable truth and force. He merely states his own conclusions, without stating also the premises on which his belief is grounded. Vide 3 Burr. 1330. 1335. 1 Sellon Prac. 269.

Motion granted.