McLennan v. Public Utilities Construction Co.

91 A. 942, 245 Pa. 567, 1914 Pa. LEXIS 919

• Court: Supreme Court of Pennsylvania
• Decided: May 22, 1914
• Docket: Appeal, No. 361
• Status: Published

Opinion

Per Curiam,

The rule to show cause why the foreign attachment issued in this case should not be dissolved was made absolute for the reason that the affidavits to the cause of action were not positive. As early as 1789 it was decided in Miltenberger v. Lloyd, 2 Dallas 79, that foreign attachments would be dissolved, if under the same circumstances, in the case of a capias, common bail would be ordered. In Jacoby v. Gogell, 5 Sergeant & Rawle 450, it was held that it was not sufficient for a plaintiff in a foreign attachment to swear to facts from which a. jury might or might not infer a contract and that the oath must be- positive as to the making of the contract or to facts from which a contract would be necessarily implied. In Hallowell v. Tenney Canning Co., 16 Pa. Superior Ct. 60, it was said by Rice, P. J., that “Upon a rule to show cause of action a positive affidavit must be filed, such as would, if false, subject the affiant to indictment for perjury; therefore, the plaintiff’s unsworn statement of claim will not be looked to by the court to supply fatal omissions from the affidavit.” Whether a supplemental affidavit should be considered by the court, on the hearing of a rule to show cause of action it is un-. necessary to consider, since the one offered was no more positive than the original. The averment in each, as to the cause of action, was to the truth of the facts set forth “to the best of deponent’s knowledge and belief.”

The order appealed from is affirmed.