The judgment of the court Was pronounced 6y
Slidell, J.
The court below, upon a rule taken f>f flie déféudftUfsi 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 lieVerily believed so. Such an affidavit Would have been defective under the Code of Practice,- but we think is good Under the amendatory act of 1839 (p. 164), Which declares “ thaii thearticle 243’of the said Code be so amended that, in lieu of tfie 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 theaffidavit 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 properto 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;