Thompson v. Best

Macomber, J.,

(dissenting.) The motion to vacate the order of arrest, being made solely upon the papers upon which the order was granted, could not have prevailed unless the affidavit was wholly insufficient to support the order. The allegations are made principally upon information and belief. It is argued by the appellant’s counsel that, inasmuch as the letters, statements, papers, and communications referred to in the affidavit are not set forth, the evidence is insufficient; being made .by the attorney or agent of the plaintiff, and not by the plaintiff in person. The rule simply requires that the sources of the information may be given where an allegation is made upon information and belief, but it does not compel the affiant to spread upon the record, in detail, the contents of such communications or documents. Their substance is given, from which the agent verifying the complaint appears to have been wholly justified, and in preparing his affidavit. Indeed, the allegation of the actual indebtedness of the defendant to the plaintiff cannot be said to be wholly upon information and belief, for it is positively stated to be admitted by the defendant himself, in his own handwriting. Under these circum*230stances, the affidavit upon which the order of arrest was granted seems to have been sufficient, and the order denying the motion to vacate should be affirmed, with $10 costs and disbursements.