General
Brooks against Hunt
3 Cai. 128·New York Supreme Court of Judicature·1805·NY
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Opinion
Brooks against Hunt.
The affidavit to ground motion for judgments as in case of non-suit, must shew where the venue was laid.
HENRY moved for judgment as in case of nonsuit on an affidavit, merely stating for “ not bringing the cause to “ trial at the last circuit in and for the county of Montgom-" ery," accorading to the practice of the court,
Paris contra,
objected that it did not specify where the venue was laid.
Henry
insisted it appeared from irresistible implication, to have been in Montgomery.
This ingredient is not required by the English practice. See Tidd's Forms, 194. 1 Sell. Prac. 365. c.
[MAJORITY — Per curiam,]
Per curiam,
The affidavit is defective. Had this cause been with a venue in NeW-York, the same mode of swearing would have entitled you to your judgment. We are not to infer facts from affidavits, when the party has it in his power to state them positively. The motion must be denied.