
    Metcalf against Clark and Watkins.
    On st motion to change the veuue m a cause* the defendant in his affidavit* in stating1 that he has a good defence on the merits, need not say, as he is advised by counsel.
    CADY, for the defendant,
    moved to change the venue in this cause, from the city and county of Albany, to the county of Ontario. He read the affidavit of one of the defendants, stating that they had a good and substantial defence on the merits, and that all their witnesses resided in the county of Ontario«
    
      H. Bleecker, contra,
    objected, that the affidavit did not state that the defendants had a defence on the merits, as they -were advised by counsel, nor the number of their witnesses residing in Ontario.
    
   Per Curiam.

This application is different from a motion to set aside a judgment by default. The court exercise an equitable jurisdiction, in changing the venue in a ■cause. The rule as to the affidavit of merits in other cases, does not apply to the present motion. The plaintiff does not state that he has any witnesses residing in the county of Albany, to induce the court to retain the-venue. The defendant, therefore, must take his rule.

Rule granted.  