Mills v. Adsit

Headnote

An affidavit made for change of venue should repeat the advice of counsel as follows: after stating that he “ cannot safely proceed to the trial of this cause, without the benefit of the testimony of each and every of the said witnesses,” as he is also ad/oised by his said cornsel and verily believes to be true, should be stated in each case after naming “witnesses.” ( 3 Wend. 426 .)

Motion by defendant to change venue.

Defendant’s affidavit was objected to as insufficient; that part of the affidavit objected to read as follows: “ that he has a good and substantial defence on the merits to the whole of the said plaintiff’s demand, as he is advised by his said counsel and believes to be true; that he has also fully and fairly disclosed to bis said counsel what he expects to prove on the trial of this cause by each and every of the witnesses hereinafter named ; that he cannot safely proceed to the trial of this cause without the benefit of the testimony of each and every of the said witnesses; that the testimony of each and every of the said witnesses is material and necessary to this deponent on the trial of said cause, as he is advised by his said counsel and verily believes to be true.” The objection was made to that part which reads, “ that he cannot safely proceed to the trial of this cause without the benefit of the testimony of each and every of the said witnesses,” as he is also advised by his said counsel and verily believes to be true, should have been inserted after witnesses, and cited 3 Wend. 425 .