
    Bridgeford, et al vs. Steam Boat Elk.
    The affidavit required to be made to the complaint of the plaintifi’, in a suit instituted under the act concerning “boats and vessels,” (R. C. 1835, p. 103,) if not made by the plaintiff himself, should show what moans the affiant'had of knowing the truth cf the particulars specified in the complaint.
    Error to St. Louis circuit court.
    
      Hamilton for Plaintiff.
    
    1. By the sixth section of the supplement, it is provided, that in all suits of this kind, the court shall be governed by its ordinary rules of practice.
    2. The judgment by default was regularly taken under the statute (R. C. 460, sec. 31,) the defendant having failed to plead; the memorandum, or entry, upon the law docket, being a nullity, and the merest evasion of the rule of court; it was a violation of the-implied faith that a plea, such as would go to the merits, should be filed, the defendant having-procured an extension of time for pleading.
    3. No “good cause,” within the meaning of the act, (II. C. 460, sec. 31,) was shown to the court for setting aside the default, or dismissing the suit; the affidavit being sufficient. 6 Bin. R. 249. 2 Russell on Crimes 518. R. C. 191, sec. 1. II Wendell 185.
    
      
      Bowlin for Appellee.
    
    1. That the affidavit verifies nothing positive or certs ii It is not made by either of the parties, their agent, familiar ■with their business, or clerk; but, is made by an indifferent individual, and the affidavit seems !tobe framed to suit the circumstances of'the case, without regard to'the ¡requisitions of the law.
    
      '2. That the affidavit sets forth nothing explicit, but deals in mere gene ralities, and, in the plain meaning of the language employed, it amounts to- nothing more than a declara^ tion on oath, that he knows and believes nothing- to the con, trary of its truth.
    3. The affidavit sets forth no subsisting demand, to which there is a positive ¡and direct swearing, as, by analagy to the attachment law, it should have done. - ’
   Opinion of the court delivered by

Napton Judge.

The complaint of Bridgeford, Rickets & Co. against the steam boat Elk, was instituted according to the provisions of the act'to provide for the collection of demands against boats and vessels.

The defendant, in the court below, before the time for pleading expired, filed a motion to quash, because of the insufficiency of the affidavit. Before the motion came on to be heard, plaintiff took judgment by default. The motion to quash was afterwards heard by the court, and the court set aside the judgment by default, and quashed.

The view which I entertain of the value of the affidavit, renders any opinion in relation to the regularity of the pro_ ceedings unnecessary. The affidavit annexed to the com. plaint, was in the following words: “James M. Buckley, being duly sworn, by me the subscriber, on his oath deela-reth and saith, that the above complaint is true, to the best, of his knowledge and belief.”

That the affiant could, on this affidavit, be convicted o*' perjury, if the facts stated in the complaint were untrue, [ entertain no doubt. Commonwealth vs. Cornish. 6 Binn. R. 249. He could' not protect himself under the pretence that he had no knowledge, and consequently no right to believe any thing about it. If a man undertakes to swear to a matter of which he has no knowlepge, he is perjured, af~ though what he has swoi’n, turns out to be true. 3 Inst. 166.

vi/required" to be made to ofGthe” plaintiff, in a suit instituted mi-der the act “boats^nd vessels,” (R. H)3^fif ’not made by. the HeU^houid”1 show what means the af-fiant had of. truth'of ’ the particulars tne°compiaint

But, I apprehend-that true policy requires that, something, more than a liability to prosecution, should be the test of the sufficiency of these affidavits. Mr.,Chitty observes in relation to affidavits to hold to bail, to which the affidavit in this case may be regarded somewhat- analagous, that, “the strictness required in these affidavits is not only to guard defendants against the consequences of perjury, but, also, th°se who njake ihe affidavit against any misconception of the law.” Chitty on bills, 348.

It is obvious, in this case, that the party who made the af-£¿avit. not being party complaining, does not show what , , ° „ , . , means he had ot knowing the truth ol any oí the particulars specified hr the complaint, whether.he was clerk-, book keeper, or agent, and coupled with the qualifying words at the end °f his affidavit, may have been made under a great misconception of the construction which the law would put upon it. It is well, therefore, to guard against the possibil-p.y 0p miSCOnception on this subject, and the defendant has J -1 J rights which should not be jeopardized by such general, and apparently qualified, oaths..

The court did not err, then in quashing this complaint. — • J udgraent affirmed.  