Herwig v. Beach

15 La. Ann. 261

• Court: Supreme Court of Louisiana
• Decided: April 15, 1860
• Status: Published

Opinions

Yoorhees, J.

The question presented is, whether it bo sufficient, in a proceeding to arrest a debtor, that the creditor should swear “ that all the facts and allegations in the petition are true to the best of his knowledge and belief.”

The District Judge correctly decided that such an affidavit, coming from the party himself, did not meet the requirements of the law.

The Code, Art. 214, requires the creditor to •“ swear, in the petition which he presents to that effect to any competent Judge, that the debt or the damages which he claims, and the amount of which he specifies, is really due to him.” The 215th Article declares that “ the oath prescribed in the preceding Article may be taken, either by the creditor himself, or, in his absence, by his attorney in fact, or his agent, provided either the one or the other can swear to the debt, from his personal and direct knowledge of its being- due, and not by what he may know or have learned from the creditor, whom he represents.” This was amended by the Act of 20th March, 1830, p. 168, sec. 16, which provides that “ in such case, it shall be sufficient for the agent or attorney to swear to the best of Ms knowledge and belief.” The law, as it now stands, has this difference between the oath of the party and the oath of his agent or attorney; the former must swear positively to the specific claim or debt which he sets up; whilst the latter’s affidavit, to the best of his knowledge and belief, is sufficient. In other respects the principal and the agent must make the same affidavit.

In the case of Jewell et als. v. Jewell et als., 1 R. 317, the court stated : “ It appears to us that, on an indictment for perjury, those expressions “ to the best of his knowledge and belief,” would not avail the traverser, if it were ps-oved that the material statements in the petition, were false to his knowledge......the affidavit is as positive in point of law, as if the words “ to the best of his knowledge and belief” had been entirely omitted.”

Without questioning in the least the correctness of that decision, which was rendered in an injunction suit, we cannot extend its application to a case of arrest, where the lawgiver has expressed himself otherwise, and discriminated as to the nature of the oath, which even the creditor himself is to take. The agent may swear to the best of his knowledge and belief, with respect to the defendant’s indebtedness; aliler, when the party himself takes the oath.

Judgment affirmed.

Land, J., absent.