This case standing ready for hearing on the motion to dissolve the injunction, the solicitors of the parties were heard, and the proceedings read and considered.
Regularly the affidavit, in all such cases, should assert, “ that the facts within the defendant’s own knowledge are true, and that those facts not within his own knowledge he believes to be true.” But here, there has been, as far baek as has fallen within my observation, a very great neglect of all regularity in the forms of such affidavits; and therefore, I should not feel myself authorized, at once, to depart from even so improper a practice as to require, in such affidavits, more than a substantial sufficiency. As to which I know of no better test than, that they must be so absolute and positive, when taken in connexion with the body of the answer, as to subject the party to a prosecution for perjury, if the matters stated in the answer should be false. It is now well settled, that if a man swears he believes that to be true which he knows to be false, he swears as absolutely, and is as criminal, and may be prosecuted and punished for perjury in like mariner, as if he had made a positive assertion.(c) The affidavit to this answer is not as correctly expressed as it ought to have been; but when taken in con
Whereupon it is ordered, that the injunction heretofore granted in this case, be and the same is hereby dissolved.
(a).
Beams’ Pl. Eq. 26.
(b).
Carnan v. Vansant, adm’r. MS. 1807.
(c).
2 Chitt. Crim. Law, 305; 1 Hawk. P. C. c. 69, s. 7; Miller’s case, 3 Wilson, 427.
(d).
2 Chitt. Crim. Law, 392; Beams’ Pl. Eq. 27; Drew v. Drew, 2 Ves. & B. 159.