
    SAUVINET vs. POUPONO, F. M. C., ET AL.
    Eastern Dist.
    
      May, 1839.
    appeal from the parish court, for the parish and city of NEW-ORLEANS.
    An affidavit which declares 44 that the material facts in the foregoing petition set forth are true,” is too indefinite and uncertain, to sustain an injunction.
    An affidavit for an injunction must be direct, positive and unconditional; and where it only attests the truth and correctness of the facts and allegations in the petition, which render the injunction necessary, it is insufficient.
    
      On the dissolution of an injunction, the fee of the defendant’s attorney may be assessed as special damages.
    This suit commenced by the executory process. The plaintiff obtained an order of seizure and sale against several slaves, hypothecated to him by the defendant, to secure'tbe payment of a sum of money.
    Louis Ferraud, fils, intervened, for the protection of some rights which he set up to the property or slaves seized, and prayed for an injunction to restrain the sale.
    At the foot of his petition of intervention, he made the following affidavit: “ L. Ferraud, fils, the above petitioner, makes oath that the material facts in the foregoing petition set forth, are true.”
    After the usual proceedings were had, the parish judge dissolved the injunction, on the insufficiency of the affidavit, and grounds set forth on which it was granted, and allowed two hundred dollars special damages in the shape of attorney’s fees, with ten per cent, per annum interest on the sum enjoined. The intervenor appealed.
    
      Benjamin, for the plaintiff,
    insisted, that the affidavit was insufficient to maintain the injunction, and that it was properly dissolved. The special damages for attorney’s fees are fully proved, and are legally and properly allowed. Code of Practice, 304. ,5 Louisiana Reports, two cases, 50 and 244.
    
      D. Seghers, contra.
   Rost, J.,

delivered the opinion of the court.

Ferraud, fils, intervened in this case, as he alleged, for the protection of his rights, and obtained an injunction to prevent the sale of some property of the defendant, seized under two mortgages, executed by the said defendant to the . plaintiff. The affidavit made by the intervenor, is in these words: “ The above petitioner makes oath that the material facts in the foregoing petition set forth, are true.”

That affidavit is indefinite and uncertain, and not such as the law requires. The facts which the intervenor deems immaterial, are not sworn to; but the court may differ in opinion with him, and consider those facts as material in his 1 # behalf. An indictment for perjury could not be maintained upon such, an affidavit, for want of certainty as to the facts sworn to.

This case is not to be distinguished from those of Hebert vs. Joly and others, 5 Louisiana Reports, 50, and Ricard’s heirs vs. Hiriart and others, idem, 244, in which the injunction was dissolved.

The interest allowed by the parish court necessarily follows the dissolving of the injunction, and the damages assessed appear to us reasonable.

It is, therefore, ordered, adjudged and decreed, that the judgment of the parish court be affirmed, with costs.  