6 Cow. 33 | N.Y. Sup. Ct. | 1826
The point has not before been raised; and the practice has been different. There is often a very great laxity of swearing upon these motions; and the party should certainly be liolden to express himself clearly. That the witnesses are material, implies perhaps that the party cannot safely proceed without them; but the expression may be considered equivocal by the party. That witnesses residing in the county to which the venue is sought to be changed, know of a material fact, is not enough. A dozen witnesses residing in the county where the venue is laid, may know the same thing; and be more easily reached than those in the other county; and yet, in one sense, the testimony of these may be said to be material. But it would be no ground for a change of venue. The witnesses intended are such that the party cannot safely go to trial without their testimony ; and he should swear to this under the advice of counsel. The motion must, therefore, be denied, for the defect of the affidavit; but as the point has not been before decided, this must be without costs.
Motion denied.