
    CASE 32 — PETITION EQUITY
    JULY 10.
    Franklin Savings Institution vs. M. M. Bank of Wheeling.
    APPEAL FROM LOUISVILLE CHANCERY COURT.
    1. If the petition contains a statement of all the facts, which, under sections 222 and 223 of the Civil Code, are required to be shown by an affidavit to authorize the issuing of an attachment, and is sworn to, it will be regarded as supplying the place of a separate affidavit. (Scott vs. Doneghy, 17 B. Mon., 324.)
    2. In sueh case the affidavit of an agent that he believes the facts stated in the petition are true, is sufficient to authorize an attachment to issue under the 222d and 223d sections of the Civil Code, if the plaintiff is absent from the county. (Civil Code, section 611.)
    The appellant and appellee sued out attachments in the Louisville chancery court against the Ohio Life Insurance and Trust Company, a foreign corporation. The attachment of the appellee, the validity of which was contested by the appellant, having been sustained, this appeal is prosecuted by the latter. The petition of the appellee, which set out the indebtedness of the defendant, and the grounds for the attachment, was verified by the affidavit of John B. Smith, as agent of the appel-lee, that he believed the facts stated in the petition are true.
    Bodley and Pindell for appellant—
    The appellee’s attachment is not valid. The 222d section of the Civil Code requires that the affidavit shall show that certain facts exist; a mere belief that they exist will not do. The distinction between an affidavit showing a fact, and one showing a belief merely, is exhibited in other parts of the Code. {Civil Code, sections 142, 180.) The distinction is a substantial one, and has been repeatedly recognized by the courts of the United States and of England. (1 Term Rep., 716; 3 lb., 575; 1 Tidd’s Trac., 157; 1 Browne, Pa. Rep., 33; 2 Wharton, 499; 2 John, 274; 3 McLean, 326; 1 Barb., 552; 20 Wend., 145; 14 lb., 237.) The case of Scott vs. Doneghy, (17 B. Mon., 321,) simply decides that a separate affidavit is not necessary, and decides nothing as to the sort of affidavit. The agent’s affidavit of his belief shows nothing in support of the statements of the petition; it does not appear that he had any knowledge of the subject. (6 Mo. Rep., 357; 9 lb., 643.)
    The appellant can, in this proceeding, contest the validity of appellee’s attachment. (Civil Code, section 257.)
    Bullitt and Smith for appellee—
    When a petition states the necessary facts to authorize the issuing of an attachment, and is sworn to, no additional affidavit is necessary. (Scott vs. Doneghy, 17 B. Mon., 324.) A petition must, be verified to the effect that the affiant believes the statements thereof to be true. {Civil Code, sec. 142.) An agent can make an affidavit to get a provisional remedy. (Ib., sec. 611.) The provisions of the Code are nugatory, or the agent can swear to his belief. The petition or affidavit charges the facts; the verification may show belief. The bond of the plaintiff, and the provisions of the 43i)th section of tbe Code, protect the defendant against all injury.
   JUDGE SIMPSON

delivered the opinion oj? the court:

There is but one question involved in this case: Is an affidavit by an agent, that he believes the facts stated in the petition are true, sufficient to authorize an attachment to issue under the 222d and 223d sections of the Civil Code ? This is the only point necessary to be decided.

In the case of Scott vs. Doneghy, (17 B. Mon., 324,) it was decided, that if the petition contains a statement of all the facts, which, under the foregoing sections are required to be shown by an affidavit, and is sworn to, it should be regarded as supplying the place of a separate affidavit, which, under such circumstances, may be dispensed with altogether.

But in that case no question was made or decided as to the character of the oath by which the petition in such a case must be verified, either by the plaintiff himself or by his agent.

It is provided, by the 611th section of the Code, that where-ever the affidavit of the plaintiff or defendant is required to verify a pleading, to obtain a provisional remedy, or any other order in an action, it may, unless otherwise expressed, be made by the agent or attorney of the party, if he is absent from the county. •

The Code does not require that the plaintiff in the action shall himself make the áífidavit to obtain an attachment; con-, sequently, it can be made by his agent, under the foregoing provision, when he is absent from the county.

Now, to require an agent to swear to the truth of the facts contained in the affidavit, on an application for an attachment, would have the effect of rendering the provisions of the Code, authorizing him to make the affidavit, absolutely nugatory. Can an agent state the nature of the plaintiff’s claim, or that it is just, in almost any case, from his own knowledge, or will not his statement as to these facts have necessarily to be made upon information which he believes to be true? The authority to the agent to make the affidavit is not restricted to cases where the facts are known to him; but he is authorized to make it in every case where the plaintiff is absent from the county. To give effect, therefore, to this provision of the Code, the oath of the agent, that he believes the facts to be true, must be deemed to be sufficient.

Suppose an agent, in verifying a petition, should swear that the facts were true, when his knowledge on the subject was derived exclusively from information which he believed, and upon wffiich he felt himself justified to make such an oath: no objection could be made to the verification in that form. But suppose that the party against whom the attachment was granted required the production of the person who made the affidavit for cross-examination, under the 609th section of the Code, andit appeared, on cross-examination, that he had no personal knowledge of the facts, but swore to them as agent, from information and belief: there the legal effect of the affidavit, when explained by the cross-examination, would be precisely the same of the one which the agent made in this case. The explanation would not, however, affect the validity of the attachment, because the agent was authorized to make the affidavit, and he could only make it on such knowledge as the law presumes that agents usually act upon.

The requisitions of the Code must be substantially complied with; but mere technical objections should not be allowed to prevail, where the obvious effect would be to defeat partially, if not altogether, the operation of some of its provisions. We think, therefore, that the oath by the agent, that he believed the facts to be true, was sufficient to authorize the issuing of the attachment.

Wherefore, the judgment is affirmed.  