United States v. Bryant , 4 S. Ct. 601 ( 1884 )

111 U.S. 499 (1884)

UNITED STATES
v.
BRYANT & Another.

Supreme Court of United States.

Submitted April 15th, 1884. Decided May 5th, 1884. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ALABAMA.

Mr. Solicitor-General for plaintiff in error, submitted on his brief.

No appearance for defendants in error.

MR. JUSTICE BLATCHFORD delivered the opinion of the court. He stated the facts in the foregoing language, and continued:

This is not the case of an attachment against the property of a defendant, under § 915 of the Revised Statutes, but is a case where, under § 914, the forms and modes of proceeding are to conform, "as near as may be," to the forms and modes of proceeding existing at the time, in a like cause, in the courts of record of Alabama.

The suit is one for the recovery of personal chattels in specie, under section 2942 of the Code of Alabama. The affidavit for seizure is made by the special agent of the General Land Office, who swears that, "to the best of his knowledge, information, and belief," the property sued for is the property of the United States. The statute authorizes the affidavit to be made by "the plaintiff, his agent or attorney." The making of an affidavit by an agent or attorney necessarily implies that he may not be able to make it on positive knowledge; and where, in such a suit as this, the agent is the special agent of the General Land Office, an affidavit "to the best of his knowledge, information, and belief" is sufficient, till controverted. The United States can act only by agents, and the language of this statute does not require that such an agent as the special agent of the General Land Office should swear in any stronger form that the property belongs to the United States, or should set forth the grounds of his knowledge, information, or belief. The conformity in this case was one "as near as may be" to the mode of proceeding in Alabama.

We are not aware of any case in Alabama holding the contrary. The Alabama statute in regard to attachments at law, Code, § 3252, et seq., provides for issuing attachments against property in specified cases, and § 3255 for an affidavit to be made by "the plaintiff, his agent or attorney" of the amount of the debt or demand, and that it is justly due, and as to other matters. In Mitchell v. Pitts, 61 Ala. 219, in 1878, an affidavit for an attachment was made, under this statute, by an attorney for the plaintiffs, who swore "that he is informed and believes, and therefore states," that the debt was due, that the debtor and creditors resided out of the State of Alabama, and that, "according to the best of affiant's knowledge and belief," certain facts existed which the statute required to be shown by the oath of "the plaintiff, his agent or attorney." It was objected by the defendant, that the recital in the affidavit, that the deponent was informed and believed that the defendant was indebted, &c., impaired the efficiency of his averment, thereupon made, of such indebtedness. But the court held otherwise, saying, that it was almost impossible that an attorney residing in the State could, where the parties resided out of it, absolutely know that the debt was still due and unpaid; that other causes for which attachments might issue, and which, under the statute, must be as positively sworn to by affidavit as the indebtedness of defendants, were of a nature which prevented it from being positively known whether they were true or not; and that, if the person who by law might make the oath, must positively know them to be true before he could swear to them, it could hardly ever happen that such causes would be available in any instance. These views properly apply to the case of a special agent of the General Land Office who is making oath to the property of the United States in pine logs.

A like ruling was made by the Supreme Court of Louisiana, in Bridges v. Williams, 1 Martin, N.S., 98. The statute allowed an agent, in an attachment case, to swear to the debt. He swore to it "to the best of his knowledge." The court held, that, to give effect to the statute, the agent must be allowed to swear in the only manner in which he could safely swear, except in some few particular cases, namely, to the best of his knowledge and belief.

As to the bond, it is provided by § 1001 of the Revised Statutes, that whenever any process issues from a Circuit Court, by the United States, no bond, obligation, or other security shall be required from the United States, either to prosecute the suit, or to answer in damages or costs. The adoption of the State practice "as near as may be" does not have the effect to abrogate the provision of § 1001, so as to require the United States to give a bond for costs and damages, as a condition of obtaining the order of seizure, or to require them to give the bond provided in § 2943 of the Alabama Code. It has been held that the United States are relieved by § 1001 from giving the undertaking required from a plaintiff by § 782 of the Revised Statutes of the District of Columbia, on issuing an attachment. United States v. Ottman, 23 Int. Rev. Rec. 294.

The order made by the Circuit Court, June 9th, 1880, dissolving the order for the seizure of the property and directing the marshal to restore the property seized, and its order of January 13th, 1881, denying the motion to vacate the order of June 9th, 1880, are reversed, and

The case is remanded with direction to vacate the order of June 9th, 1880, and to take such further proceedings in the suit as may be according to law and not inconsistent with this opinion.