The requirements of section 63(5 of the Code of Civil Procedure are neither technical nor formal. The right to attach on mesne process is an extraordinary power’ given by statute against common right, and no title can be acquired by its exercise except upon strict compliance with the terms of the statute. 3 Enc. PI. & Frac. p. 3, and numerous cases there cited. By strict compliance is undoubtedly meant substantial ■ compliance. But mere formal compliance will not answer. One of these substantial requirements is that the plaintiff must show by affidavit, to the satisfaction of the judge granting the warrant, the existence of a cause of action against the defendant. He must show this by affidavit,—-that is, by something in the nature of proof,—not by mere averment. 'It is true that in some cases a verified allegation of the cause of action may of itself furnish proof, sufficient, at least, to confer jurisdiction. The allegation must then, however, be verified by the plaintiff, or his agent or attorney. It cannot be verified by a total stranger to the transaction, or by a person who is, in a legal sense, a stranger to the plaintiff. Even where the complaint which contains the allegation is verified by the plaintiff’s agent or attorney, the latter must speak of his own knowledge, or set forth "in the affidavit the grounds of his belief as to all matters not stated upon his knowledge, and the reason why it is not made by the party.” Code Civ. Proc. § 526.
Now, what have we here? Averment, and averment alone, without proof or statement tending to constitute proof. The plaintiff shows nothing whatever fby affidavit. He simply deposes to his naked assertion of the existence of certain facts. True, he is the plaintiff. But, so far as the attempt to show a cause of action by affidavit is concerned, he is a total stranger to the transaction between his assignor and the defendant. His affidavit is quite sufficient as to the assignment to himself. In all other respects it is the mere sworn assertion of a stranger, unsupported by a particle of proof. When this distinction between averment and proof is kept in mind, the Ladenburg Case, 5 App. Div. 219, 39 N. Y. Supp. 119, and the case of Hanson v. Marcus, 8 App. Div. 318, 40 N. Y. Supp. 951, will be found to be entirely in harmony with the conclusions here arrived at. The affidavit in the Ladenburg Case was made by a member of the plaintiff’s firm about a matter of firm business, and was therefore presumptively made upon knowledge. His verified averment of the cause of action there sufficed. That was sufficient proof, by affidavit, of the existence of the cause of action to confer jurisdiction. Why? Because the man was speaking about his own business; that is, about matters which ordinarily import knowledge. So in Hanson v. Marcus. The affiant “was the duly-authorized agent, manager, and attorney in fact of the plaintiff.” There, too, the agent’s verified averment of the *715cause of action imported knowledge. The decision rested upon the presumption that a person who was the plaintiff’s agent, manager, and attorney in fact was “the person who knew as to the condition of his affairs with the defendant.” This rule applies not only to an individual plaintiff and his general agent or attorney in fact, but to the officers or other agents of a corporation; indeed, to any person who is shown by the affidavit to have been connected with the transaction which constitutes the cause of action, on the plaintiff’s behalf. Where, however, the affiant is neither the plaintiff nor his agent, manager, or attorney in fact,—where he is not, apparently, connected with the plaintiff or the transaction in any way,—his affidavit as to such transaction amounts to nothing more than a verified assertion; that is, an assertion which, for some undisclosed reason or upon some undisclosed information, he believes to be true. The fair inference from the bald statement of A., standing alone and without any direct affirmation of personal knowledge, that B. has loaned money to C., is that A. speaks only from information which he credits. The courts have invariably held that such bald statements, although in form made positively, amounted to mere expressions of belief or opinion. Thus, in Tim v. Smith, 93 N. Y. 87, the moving creditor presented affidavits of certain attorneys stating unreservedly that, by virtue of a particular attachment, the sheriff attached property of the defendant. This was held to furnish no evidence of the fact. “Such an affiant,” said Chief Judge Ruger, “does not necessarily have knowledge of, and cannot be presumed to know, the several facts attempted to be established by his affidavit in this case.” So, in Thomas v. Dickinson (Sup.) 11 N. Y. Supp. 436, the affiant stated that, shortly after the sale of certain barrels of whisky by the plaintiffs to the defendants, they were pledged with a warehouse keeper, and an advance obtained thereon. The court held that as the statements related to transactions between other persons, at which the affiant could not be presumed to have been present, they furnished no reliable reason for believing that they had been correctly stated. Mr. Justice Daniels, in that case, said that the fact that a witness states transactions positively as being within his knowledge, when it can be seen that he does not possess that knowledge, were circumstances which required the statements to be rejected. In Murphy v. Jack, 142 N. Y. 215, 36 N. E. 882, the question of knowledge was an underlying one. The affiant attempted to comply with the rule, and to give his information, he not claiming to have knowledge of the main facts. In doing so, however, he stated positively that he had received this information from the plaintiff through the telephone. It was held that this unqualified statement was insufficient to confer jurisdiction, and that the affiant was bound to show how he knew what he thus asserted as upon knowledge.
The true test of the sufficiency of an affidavit is the possibility of assigning perjury upon it if false. People v. Becker, 20 N. Y. 354. This test is essentially applicable to affidavits used to secure attachments.
*716It was well said by Lyon, J., in Miller v. Munson, 17 Am. Rep. 461, that:
“The proceeding hy attachment is very summary and violent. The purpose of the law which requires that a certain affidavit be made before the writ can issue is to protect the alleged debtor from so severe a process, unless the creditor or some person in his behalf, under the responsibilities of an oath, shall assert the existence of certain facts which the law adjudges good grounds for issuing the writ. This requirement of the law would afford the debtor no protection whatever, unless the affiant is liable to be punished criminally if he willfully swears falsely in such affidavit. Hence, although the affidavit be in the very words of the statute, it is not sufficient, unless perjury can be assigned upon it.”
How, it may be asked, could perjury be successfully assigned upon the affidavit in question? Suppose the plaintiff’s assignor had not sold the goods to the defendant, but this affiant had relied, in making his sworn assertion, upon what he reasonably deemed to be credible information; could he be justly charged with having made an unqualified statement importing knowledge of that which he did not know to be true? Clearly not. Even if the fact were true as alleged, it would be perjury to make an unqualified statement of such fact which the affiant did not know to be true. The common-law rule upon the latter head, which is now embodied in the Penal Code (section 102), is quaintly put by Sir William Bussell in his work on Crimes, as follows:
“With respect to the falsity of the oath, it should be observed that it has been considered not to be material whether the fact which is sworn be in itself true or false; for, howsoever the thing sworn -may happen to prove agreeable to the truth, yet, if it were not known to be so by him who swears to it, his offense is altogether as great as if it had been false, inasmuch as he willfully swears that he knows a thing to be true which at the same time-he knows nothing of, and impudently endeavors to induce those before whom he swears to proceed upon the credit of a deposition which any stranger might make as well as he.” 1 Russ. Grimes, p. 294.
The fair inference from the present affidavit absolves the affiant from this “impudent endeavor.” He has attempted to impose upon no one. He neither says nor suggests that he was in Chicago on the 14th of May, 1896, or that he was present when the assignor’s agent and the defendant then and there made their bargain, or that he subsequently saw the goods delivered in Jersey City. What he says imports information as to the averment of a sale and delivery of the goods, not personal knowledge. Even if he were entirely ignorant as to the actual fact of such sale and delivery, he is, at least, innocent of any possible charge of having willfully sworn that he knew the fact as thus asserted to be true.
The question really does not deserve such elaborate consideration. It amounts to this: that we are asked to hold that a court should act judicially in a serious matter, upon less evidence than would be required by any sensible and prudent business man in the ordinary affairs of life. If a stranger should enter a business man’s office, and tell him that his interests were likely to be affected by a transaction which the stranger knew had occurred between A. and B., the business man would surely say: “Who are you, and how do you know this?” Shall a court of justice authorize a *717citizen’s property to be seized before judgment, under the circumstances here presented, without saying as much? The question answers itself.
The order appealed from was right, and it should be affirmed, with costs.
VAN BRUNT, P. J., and PATTERSON and WILLIAMS, JJ., concur.