Burns v. Kinne

2 Mich. N.P. 63

• Court: Circuit Court of the 15th Circuit of Michigan
• Decided: February 15, 1871
• Status: Published

Opinion

By the Court,

Upson, J.

In th^ affidavit for the writ of attachment in this ease, the deponent has sworn directly and positively to the fact and the' amount of indebtedness to him, without using the words, “ as near as may be,” whieh are given in the statute in thi» connection, § 4743, C. L. lie also swears directly and positively to the fact of «the non-residence of the defendant, without, prefacing his statement with the words, “ that the deponent knows,” or that the deponent has good reason to believe,” as prescribed by the same sfcatmte in that connection. It seems to me that the legal effect of the affidavit is the same as, or if possible stronger in its positiveness of statement in each particular, than if the qualifying words insisted upon in the statute had been used.

In each of these particulars, .on an indictment for perjury against the deponent, if it were made to appear that he knew npthing of the matter he so positively swears to, he would be found guilty of perjury even though what he swore to may happen to be true. 2 Russ. on Crimes, 597.

IIe»is allowed by the statute to use the -qualifying or modifying words where Ris own knowledge may be so defective or limited as to require such use. If he swears to the necessary fact or facts unqualifiedly and positively, I se® no impropriety or injustice in holding him to swear to it in his affidavit, on his own knowledge and as correct, he having had the opportunity to qualify it under the statute if not within his knowledge, or if not exactly correci in amount. In the matter of non-residence also, he gives in the affidavit the further fact in support of the allegation, that the defendant'is a resident of the State of New York., On this point the language of the affidavit is almost literally like the one in Dorr vs. Clark, as given in the opinion1 of the Court, 7 Mich. R., 312; which affidavit was held sufficient, although the point there raised is not precisely like the one made here.

In Wilson vs. Arnold, 5 Mich., 104, the Court say, in speaking of the statement in the affidavit’ of the indebtedness, the amount and that it was on contract: “ All these facts must be sworn to positively ; not necessarily in the words of the statute, but in language equivalent to that of the,statute. The other facts to be stated in the affidavit need not be,stated positively, for the Statute itself discriminate s between the facts to be sworn to positively, and those that need not be so sworn to.” See also the ease of Barker vs. Thorn, decided by the Supreme Court, April, 1870.

The affidavit in .this case must be considered a substantial compliance with the statute, and therefore sufficient. Motion denied, with $5 costs.