
    Clements v. Cassily et al.
    Unifer íhc 5th seo. of flie stat. of 20 Mar’dlf, 1839, amending art. 243 of the Codo of Practice, if is' sufficient to authorise an attachment, that the creditor stibuldYweaf that he'verily believes that tiro debtor resides out of the State ; it is not necessary that he should-swear positively that lie does so.
    Appeal from the Coinin'ercial Court of New Orleans, Watts, J.
    
      Perin, for ¿he appellant. Conklin, for the défeflda'Ut's;
   The judgment' of the court Was pronounced 6y

Slidell, J.

The court below, upon a rule taken f>f flie d'éféud'ftUfsi dismiss-ed the attachment issued in tMs1 cause, because the plaintiff, in his affidavit, instead of swearing positively that the defendants resided out of the State¡-swore' that lie'Verily believed so. Such an affidavit Would have been defective under the Code of Practice,- but we' think is go'od Under the amendatory act of 1839' (p. 164), Which declares “ thaii the'article 243’of the said Code be so amended that, in lieu of tfi'e oath prescribed by said article, it shall be sufficient for the creditor to swear to the existence of the debt demanded by him, and that he Verily believes that the' debtor hals left the State' permanently, or that he resides1 out of the' State, or conceals himself, so that citation cannot be served on him.”' Under the' Code the'affidavit was required to be positive in these three cases;'- and as they are each enumerated in the amendment, die' sufficiency of an affidavit of belief cannot be reasonably restricted to one of the enumerated cases, Upon the ground of a distinction which the lawgiver has not thought proper'to Uiake, between those facts which may be affirmed with certainty, and those which, under ordinary circumstanbes, can only be the subject of belief.

The judgment of the court below is therefore reversed, and this cause is remanded for further proceedings according to laW; the defendants paying the costs of this appeal;  