Sherwood v. Steele — 12 Wend. 294

Majority

p. 294

Sherwood vs. Steele.

Headnote

On a motion to change the venue, the plaintiff must swear unqualifiedly that he has witnesses in or nearthe county where the venue is laid, óf an equal num. her with those of the defendant, or a greater number, or the venue will be changed.

March 19.

Motion to change the venue from New-York to Delaware. The defendant had eight witnesses residing in and near Delaware. The plaintiff made affidavit that he had nine witnesses residing in and near New-York, and that without the testimony of each and every of them he could not safely proceed to trial, taking into consideration the sustaining of the action, and

p. 295

meeting and resisting the defence, which he believed the defendant intended setting up. It was objected that this affidavit was not sufficient to resist the motion.

By the Court,

The court cannot receive a qualified affidavit. The plaintiff here swears to the materiality of his witnesses, upon the belief of the defence intended to be set up: his belief may not be well founded. At all events, a plaintiff, desirous to retain his venue, must swear unqualifiedly that he has witnesses of an equal number with those of the , defendant, or a greater number, or, according to the settled practice of the court, the motion will be granted.

Motion granted.