Simpkins v. Malatt

• Decision Date: 03 December 1857
• Citation: 9 Ind. 517
• Parties: Simpkins v. Malatt and Another
• Court: Indiana Supreme Court

9 Ind. 517

Simpkins v. Malatt and Another

Supreme Court of Indiana

December 3, 1857

From the Warren Court of Common Pleas.

The judgment is reversed, with costs.

Benjamin F. Gregory and Jesse Harper, for appellant.

James R. M. Bryant, for appellees.

OPINION

Stuart, J.

Affidavit for a writ of ne exeat. Motion to dismiss for want of a sufficient affidavit, sustained; exception and appeal.

The point of objection is, that the affidavit is not positive. The plaintiff swears that he has reason to believe, and does verily believe, that Hale and Malatt are about to remove, etc. The language of the statute is that the plaintiff or his agent shall make an affidavit that the plaintiff is about to remove, etc.

Is the affidavit sufficient? We think it was. "It was formerly thought," says Roscoe, "that an oath was not perjury unless sworn to in absolute and direct terms; and that if he swear according to his belief, he could not be convicted of perjury. But the modern doctrine is otherwise. Belief is to be considered an absolute term: hence, to swear that he believes a thing to be true, is equivalent to swearing that it is true." Ros. Cr. Ev. 814, and the English authorities cited; Commonwealth v. Cornish, 6 Binn. 249.

Per Curiam.

The judgment is reversed, with costs.