Benjamin Jewell and others, Heirs, &c., v. Sarah Jewell and others, 1 Rob. 316

Bullard, J. The plaintiffs in this case have appealed from a judgment of the District Court dissolving their injunction on the ground that the affidavit was insufficient.

One of the plaintiffs made oath that * the facts stated in the foregoing petition are true to the best of his knowledge and belief.’ The judge was of opinion that the oath was not sufficiently positive, but was qualified by the latter expression, ‘ to the best of his knowledge and belief.'’ We do not concur in this opinion.-- It appears to us that on an indictment for perjury those expressions would not avail the traverser, if it were proved that the material statements in the petition were false to his knowledge.

The affidavit ought to be so positive that the party swearing may be convicted of perjury, if he swear falsely. This case differs materially from that in the 5 La,, 80, upon which the appellee relies. In that case the party declared upon oath that ‘the ynaterial facts were true 'and correct to the best of his knowledge,’ and that was held insufficient.

The court then remarked that ‘ whether the loose mode of swearing to the best of one’s knowledge and belief be a sufficient abbreviation of the proper formula (used in courts of equity in the other states), we ought not to say till a case before us require our decision.’ In the present case that question presents itself, and we are of opinion, that 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. The judgment is therefore reversed with costs, and the case rg^ mand.ed for further proceedings according to law.