
    William C. Burns vs. George P. Kinne.
    1. An affidavit for an attachment under § 4740, Cc<mp.,Zaw8, stated in positivo language the amount of the indebtedness of the 'defendant to the plaintiff, at a certain sum, without using the qualifying words of-tlie statute, “ as near as may be,” Held, sufficient.
    & The affidavit also seated in positive terms file non-residence of five defendant, without usimg the prefatory statement “ that the deponent knows,” or “ tllat the deponent has good reason to believe,.” specified in the statute. Held, sufficient, und that in each particular there was ■o, substantial compliance with the statute.
    
      Branch Circuit,
    
    
      February, 1871
    Motion to quash writ of attachment' and set. aside the proceedings- thereunder, on the grounds :
    1. That in the affidavit tor the attachment the deponent in seating the amount of the indebtedness of the defendant, did’ not in substance or in fact;use the qualifying words,- “ as near as may be,” as prescribed by the statute, § 4743, Comp. Lau-s.,
    
    2. That the depqnent in swearing to the non-residence of the defendant did not in substance or-, in fact use the qualifying words-, *• that the deponent knows, or has good reason to believe,” &e., as prescribed by the statute. v
    The affidavit .on which the attachment issued is in the words and figures following, viz:
    “ STATE OF MICHIGAN,'} County of Branch. j '
    William C. Burns, being dulysworn, says that he resides at t]ic city of Coldwater, in said county, that George P. Kinn'e is indebted to him, the said William C. Burns, in the sum of four thousand dollars and interest thereon, from the 21st day of November, A- D. 1870, over and above all legal-set-offs, and that such indebtedness is due and owing upon express contract, and the whole amount thereof is now díte. Deponent further says that the said George P. Kinne is not a resident of this State of Michigan, and does not and has not resided therein for three months immediately preceding, the time of making this affidavit, but that said George P. Kinne has for a long time and still does reside in the- county of Steuben, in the State of New York.
    W. C. BUKNS.
    Subscribed and sworn to before me, this 30th day of December, 1870.
    Francis M, Bisseli,
    Clerk"
    
      Levi Sprague, Defendant's Attorney for the motion.
    
      Shipman & Loveridge, Plaintiff s Attorneys.
   By the Court,

Upson, J.

In th^ affidavit for the writ of attachment in this ease, the deponent has sworn directly and positively to the fact and the' amount of indebtedness to him, without using the words, “ as near as may be,” whieh are given in the statute in thi» connection, § 4743, C. L. lie also swears directly and positively to the fact of «the non-residence of the defendant, without, prefacing his statement with the words, “ that the deponent knows,” or that the deponent has good reason to believe,” as prescribed by the same sfcatmte in that connection. It seems to me that the legal effect of the affidavit is the same as, or if possible stronger in its positiveness of statement in each particular, than if the qualifying words insisted upon in the statute had been used.

In each of these particulars, .on an indictment for perjury against the deponent, if it were made to appear that he knew npthing of the matter he so positively swears to, he would be found guilty of perjury even though what he swore to may happen to be true. 2 Russ. on Crimes, 597.

IIe»is allowed by the statute to use the -qualifying or modifying words where Ris own knowledge may be so defective or limited as to require such use. If he swears to the necessary fact or facts unqualifiedly and positively, I se® no impropriety or injustice in holding him to swear to it in his affidavit, on his own knowledge and as correct, he having had the opportunity to qualify it under the statute if not within his knowledge, or if not exactly correci in amount. In the matter of non-residence also, he gives in the affidavit the further fact in support of the allegation, that the defendant'is a resident of the State of New York., On this point the language of the affidavit is almost literally like the one in Dorr vs. Clark, as given in the opinion1 of the Court, 7 Mich. R., 312; which affidavit was held sufficient, although the point there raised is not precisely like the one made here.

In Wilson vs. Arnold, 5 Mich., 104, the Court say, in speaking of the statement in the affidavit’ of the indebtedness, the amount and that it was on contract: “ All these facts must be sworn to positively ; not necessarily in the words of the statute, but in language equivalent to that of the,statute. The other facts to be stated in the affidavit need not be,stated positively, for the Statute itself discriminate s between the facts to be sworn to positively, and those that need not be so sworn to.” See also the ease of Barker vs. Thorn, decided by the Supreme Court, April, 1870.

The affidavit in .this case must be considered a substantial compliance with the statute, and therefore sufficient. Motion denied, with $5 costs.  