
    PASSEBON vs. HIS CREDITORS.
    Eastern Dist.
    February, 1836.
    APrEAL FROM THE PARISH COURT FOR THE PARISH AND CITY OF NEW-ORLEANS.
    The creditor who demands the arrest of his insolvent debtor, must set forth the circumstances which induce him to make the oath. But it is sufficient, if these circumstances are disclosed by reference to the petition, schedule or other documents in the cause. A detail of them is not required in the affidavit.
    The article 223 of the Code of Practice requires the creditor to swear he verily believes the facts in his affidavit; hut these words are not sacramental. The affiant may swear, “ he suspects and fears his debtor is about to depart,” &c. and it will he deemed sufficient.
    The plaintiff made a surrender of his property on the 29th of December, 1835, for the benefit of his creditors and prayed that all legal proceedings against his person and property be stayed. An order was granted according to the prayer of the petitioner.
    On the next day, Edward Vincent, a creditor of the insolvent, filed his petition alleging that “ the said Passebon, under false pretences and unfounded allegations had obtained the order staying all proceedings against his person and property.”
    “ From the tenor of the schedule filed, the resources which it was known were within the control of the insolvent on the eve of his insolvency, it is evident he conceals a large amount of his property.”
    “ That the circumstances under which he failed are such as to induce this petitioner strongly to suspect the intentions of said insolvent, and that he has in fact strong reasons to suspect and fear that he will avail himself of the stay of proceedings granted to him to keep his person from his creditors, and to run away from the jurisdiction of the court.”
    He prays that the insolvent be arrested and imprisoned.
    
      At the foot of the petition, the petitioner annexed his affidavit, declaring the facts it contained to be true, “ and that he has strong reasons to fear the insolvent will avail himself of the stay of proceedings to leave the state,” &c.
    Upon this petition and affidavit the insolvent was arrested and imprisoned.
    A rule was taken by the insolvent debtor on the petitioning creditor, to show cause why the former should not be discharged.
    On hearing arguments of counsel on both sides, the parish judge discharged the insolvent on the insufficiency of the affidavit on which he was arrested.
    1. “ He decided that a party resorting to an extraordinary remedy, must pursue the requisites of the law strictly.”
    2. “ That the 223d article of the Code of Practice requires the party obtaining the arrest of another, to swear that he verily believes the insolvent is about to depart from the jurisdiction of the court, &c. which is not complied with.”
    3. “That he has not set forth the circumstances specially which induced him to the belief of the facts sworn to, as the above article requires.”
    The petitioning creditor appealed.
    
      Morphy and Grailhe, for the plaintiff and insolvent.
    
      Soulé, for the appellant.
   Martin, J.,

delivered the opinion of the court.

In this case the insolvent debtor was arrested at the instance of a creditor, under the 223d article of the Code of Practice, on the allegation that he was about to depart from the jurisdiction of the court, and thereby secrete his person from his creditors. On application to the court, the debtor obtained his discharge from the arrest. The creditor who had provoked the arrest, appealed from the decision of the court which ordered the discharge of the debtor.

The discharge was claimed on the ground of the alleged - insufficiency of the affidavit on which the arrest was made in ,the first instance. It was considered defective, because the affiant did not set forth the facts which it was supposed the insolvent debtor would avail himse,lf of the stay of proceedings which he had obtained, for the purpose of placing his person and property out of the reach of his creditors; and because the affidavit states that the affiant only suspected or had reason to fear the insolvent was about to absent or secrete himself, not that he verily believed so.

The creditor the’arre'st'of 'his insolvent debtor, must set forth the circumstances which induce him to make the oath. But it is sufficient if these circumstances are disclosed by reference to the petition, schedule, or other documents in the cause. A detail of them is not required in tire affidavit.

The article 22.3 of the Code of Practice requires the credi- ■ tor to swear, he ' verily beUeves the fact in his affidavit $ but these words are not sacramental. The affiant may swear, “hesws-pecis and fears his debtor is about to depart,” &c., and it will be deemed sufficient.

The Code of Practice is explicit in requiring the creditor who makes the oath to set forth the circumstances which induced him to entertain the belief he swears to. It 'is, however, sufficient if these circumstances are disclosed, by a reference to the petition or schedule of the debtor, or to any other document which has been made a part of the proceedings in the cession. There is nothing which requires that they be detailed in the affidavit. This has been done in the present case. The documents on file go to establish that previous to the application for a stay of proceedings against him, the insolvent removed a large sum of money from the banks, and a number of notes and valuable papers, for the purpose of placing them out of the reach of his creditors.

It is true, the Code of Practice in the very article referred to, requires the creditor who demands the arrest of the insolvent debtor, to swear that he verily believes the facts which excite his apprehension of the absconding of his debtor. But these very words are not sacramental. It is enough for the creditor to show a fair ground of apprehension in the oath he takes; that the measure which he provokes is necessary, to the security of the mass of the creditors, and' is justified by the conduct of the debtor.

The line of distinction between belief and strong suspicion and fear of’a thing or event happening, is not very easily drawn or made clear. Indeed, a belief of future events happening, is at best, even when sworn to, little more than conjecture ; and when a person swears that he suspects and fears such a thing is going to happen, he of course believes it will take place, but in neither case does he know it. 5 La. Reports, 494. 7 Ibid., 413.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Coürt be annulled, avoided and reversed, and that the rule taken on the creditor for the liberation and discharge of the debtor from arrest, be discharged, and that the appellee pay costs in both courts.  