Majority
p. 374Franklin and others against Underhill.
Z< R‘ SHEPHERD, for the defendant,
Headnote
movedlo change the venue in this cause from the city and county of ° " New-Yorlc to the. county of Washington. He read an affidavit of the defendant, stating that the cause of action ^rose >n the county of Washington, and not elsewhere, as he verily believed; that six witnesses, material for him, ••?■»♦» , . . resided in tbat county, and as many as ten material wit* nesses resided in Vermont, two hundred miles nearer the county of Washington than the city of New-Yorlc. °Johnson, contra,
read an affidavit, stating that the ac-lib11 was for money had and received by the defendant, as agent for the plaintiffs, in the sale of land;, that the contract or agreement.between the parties was made in the city of New-Yorlc, where all the conversations between the parties were held; that, the cause of action arose in that place, and not elsewhere; and that two ma
p. 375
terial witnesses for the plaintiffs resided in the city of Jyew-Yorfc, &c.
He offered, in case the court did not think the affidavitof the plaintiffs sufficient to prevent a change of the venue, to stipulate to give material evidence in the city of Neio-Yorlc, or be nonsuited.
The plaintiffs, on their stipulation, might retain the venue where it is laid;[1] but we do not think, that there is any necessity for them to undertake to give material evidence in New-YorJc. When a defendant applies to change the venue, he must swear positively that the cause of action arose in another county. The affidavit of the present defendant is not positive. He swears merely as to his belief.. '
Rule refused.
* Tidd, 529.