Majority
p. 23SUPREME COURT—SPECIAL TERM. September, 1848 Before Edmonds, Justice Lee and others v. Heirberger.
Headnote
Section 349 of the Code.On an application for an order under section 349 of the Code, Held, That an affidavit following the alternative wording of the statute is not sufficient.
This was a motion for an order to examine a person under section 249 of the Code. The motion was founded on an affidavit that the party sought to be examined “ has property of the judgment debtor, or is indebted to him,” these being 'the precise words of the statute.
This motion cannot be granted on the affi davit as it now stands. In order to obtain the order sought for by this motion, it is not sufficient that the affidavit follows the wording of the statute; it must be positive, either that the person has property of the judgment debtor, or that he is
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indebted to the judgment debtor, or that he has property and is indebted to the judgment debtor; but it cannot be put in the alternative.
Motion denied.