delivered the opinion of the court.
This case commenced by an application for an injunction. The plaintiff states that he bought from the defendant, Joly, a slave which the latter had acquired by adjudication, at the sale of the estate of one Celeste Cullue, and by his contract, agreed to take the place of his vendor, and make payment to the person or persons legally entitled to receive it.
dis°oivem°n0nin-iaceofSiopap»* fed * M-/anot adl leffitho'motionbo ground of a want of sufficient matter alleged m the petition to autlio-thewritissuine of An affidavitfor an injunction must be direct, positivoThe petition proceeds to state various circumstances,' on r r ' which the injunction is demanded, and concludes with a prayer for it. At the bottom is found the following affidavit. «Eribert Hebert, being duly sworn, deposes and says, that the facts and allegations contained in the above petition, which render an injunction necessary, are true and correct.”
A motion was made in the court below, to dissolve the injunction, on a plea of res judicata, and from matters appearing on the face of the papers. The court sustained it, and the petitioner appealed.
R has been objected, that on a motion to dissolve on the face of the papers, all the facts are admitted as true. We think not. Such certainly would be the case, if the rule had been taken to show cause, for want of sufficient matter being alleged in the petition to authorise the writ. But the cáse ° before ns was tried on a motion to dissolve from matters ap-x Pcaring on the face of the papers. Whatever, therefore, appeared on the face of the papers, which showed the injunction should be dissolved, was a proper matter of inquiry. Whether the petitioner might not have objected to going into the investigation, unless the defendant set out specially, his particular exceptions, need not he inquired into, for no objection was made by him on this ground, in the court below.
The affidavit is not such as the law requires. The oath should he direct, positive and unconditional. If in the present case, the facts did not render the injuction necessary, none were sworn to. If the law did render it necessary, on the allegations in the petition, still it is an affidavit, conditional, on the law being so. Independent of the complete exemption from punishment, which would attend false swearing, if the petition did not disclose matters to authorise the writ, there would he, in all indictments for purjury, on such an oath, a preliminary inquiry, whether the allegations authorised an injunction; and in which inquiry the party accused would have the benefit of all doubt, which might exist in the matter. The law in our judgment, did not contemplate extending any such latitude, or embarrassing any *53inquiry which should turn on the truth of facts, into mixed questions of fact and law. ■
The plaintiff most probably was induced to give his affidavit this form, from the provisions contained in the 304th article of the Code of Practice, which requires the party applying for an injunction, to state, under oath, the facts, which according to his belief render the writ necessary. This we think evidently means, that the facts must be sworn to positively, and that the facts so attested to, must be those, which in the belief of the affiant, authorise the injunction, but this is widely different from an averment, that all the facts zohich render the writ necessary, are true.
Error is alleged in that part of the judgment below, which condemns the surety to pay costs. The surety has not appealed, and is not before this court: then again, the act of 1831, declares that the surety shall be considered as a party plaintiff in the suit. Act of 1831, p. 102.
Damages are asked for the appellee, on'the ground of the appeal being frivolous. We do not think the case one in which this penalty should be inflicted.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.