COALE v. CHASE. 137

The allegations in the body of an answer or plea should be
positive, otherwise the issue would be joined on a mere statement
of the belief of the parties, not upon their allegations of fact. But
it is the law arising out of the facts, not merely from the belief of
the parties, which is to be determined, (a) Yet where an injunction
has been granted against an executor or administrator, it is sufficient
for him, in order to obtain a dissolution of it, to state, as to any
facts, in regard to which the bill calls for an answer, and which
must, from the nature of things, have rested in the knowledge of
his testator or intestate, that they are as he " is informed and
verily believes," so and so.(i) But the answer of this defendant,
in the body of it, has spoken so distinctly and positively as to the
facts; and thus, so entirely sworn away the equity of the bill, that
I could have no hesitation in dissolving the injunction, at once,
were it not for an objection to the form of the affidavit thereunto
annexed by which it has been verified. In that affidavit the defend-
ant swears, " that the several matters and facts set forth and stated
in the within and aforegoing answer are just and true as they are
therein stated, according to the best of her knowledge, belief, and
recollection." This the plaintiffs allege is too vague, indefinite,
and general.

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 back 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 pro-
secuted and punished for perjury in like manner, as if he had made
a positive assertion.(c) The affidavit to this answer is not as cor-
rectly expressed as it ought to have been; but when taken in con-

(a) Beams' PL Eq. 26.—(d) 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.

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