Majority
p. 227John P. Young vs. Peter Arndt.
Headnote
An affidavit for motion to change the venue, should state that each and every of the witnesses are material $c., and also that, without whose testimony and the testimony of each and every of them he can not safely proceed, §-c.*Motion by defendant to change the venue.—An objection was taken to the affidavit upon which defendant moved, that it was not repeated in the affidavit that “ each and every” of the witnesses were material to his defence, &c. That part of the affidavit to which objection was made read as follows, (after naming the witnesses) “ are each and every of
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them material witnesses for this deponent on the trial of said cause as he is advised by his said counsel and believes, without whose testimony and the testimony of each of them he can not safely proceed, &c.”
L. Benedict Jr., Defts Counsel. H. K. and L.' W. Jerome, Defts Jlttys.
M. T. Reynolds, Plffs Counsel. Sacia and Davis, Plffs Jlttys.
Plaintiffs counsel insisted that the affidavit should have read; “ without whose testimony and the testimony of each and every of them, &c.” 3 Wend., 19 Wend.
The affidavit does not seem to come within the rule, in that respect. Motion denied, with costs, without prejudice.