US SUPREME COURT DECISIONS

Under §§ 2943 and 2943 of the Code of Alabama, of 1876, which provide for the bringing of a suit for the recovery of personal chattels in specie and for the making of an affidavit by "the plaintiff, his agent or attorney" that the property sued for belongs to the plaintiff, and for the giving by the plaintiff of a bond for costs and damages, as prerequisites to the making of an order for the seizure of the property, an affidavit, is such a suit by the United States, in the circuit court of the United States, made by a special agent of the General Land Office, in which he swears "to the best chanrobles.com-redchanrobles.com-red

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of his knowledge, information and belief" that the property sued for belongs to the United States, is sufficient.

Under § 1001 of the Revised Statutes of the United States, the United States are not required to give the bonds provided for by the Code of Alabama, as a condition precedent to the right to avail themselves of said provisions of that Code.

Where, in such suit, the circuit court, after the seizure of the property, vacated the order for its seizure on the ground of the insufficiency of the affidavit and for the want of a bond, but the United States had a judgment, and brought a writ of error, this Court reversed the order of the circuit court vacating the order of seizure.

This was an action at law brought by the United States in the Circuit Court of the United States for the Southern District of Alabama against Henry Bryant and J. V. Weekley, the complaint in which, filed August 8, 1879, states that the plaintiffs claim of the defendants 2,740 pine logs, with the use thereof during the detention. The bark-marks and stamps and sizes and value of the logs are set forth, and the times when and places where they were cut. With the complaint there was filed an affidavit in these words:

"United States of America, Southern District of Alabama, ss.: On this, the 8th day of August, A.D. 1879, before me, Henry S. Skaats, a commissioner of the circuit court of said district, personally appeared J. J. Gainey, special agent General Land Office, who, being first sworn, deposes and says that, to the best of his knowledge, information, and belief, the property sued for in the case of the United States against Henry Bryant and J. V. Weekley, for the recovery of two thousand seven hundred and forty pine logs, of the value of one dollar and twenty-five cents each, is the property of the plaintiffs, the said United States. J. J. GAINEY. Sworn and subscribed before me this eighth day of August, A.D. 1879. HENRY SKAATS, U.S. Commissioner Sou. Dist. of Ala."

Thereupon the clerk of the court issued the following order for seizure:

"United States of America, Circuit Court of the United States for the Southern District of Alabama: J. J. Gainey,

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special agent to the Commissioner of the General Land Office, having made affidavit to the best of his knowledge, information, and belief that the property sued for in the annexed complaint, namely, two thousand seven hundred and forty pine logs or sticks of timber, belongs to the plaintiff in said suit, the Marshal of the United States for the Southern District of Alabama is required to take the property mentioned in the said complaint into his possession unless the defendants give bond, payable to the said plaintiffs, with sufficient surety, in double the amount of the value of the property, with condition that if the defendant is cast in the suit he will, within thirty days thereafter, deliver the property to the plaintiffs and pay all costs and damages which may accrue from the detention thereof. N. W. TRIMBLE, Clerk U.S. Circuit Court, Sou. Dist. Ala."

A summons having been issued, the marshal, on the 15th of January, 1880, made a return that he had served the summons and complaint on Bryant, and had seized 858 of the logs described.

On the 22d of January, 1880, the defendants moved the court for an order dissolving the order of seizure and directing the restoration of the property on the ground that the record showed "that no affidavit or bond was given by the plaintiff, as required by law in detinue suits, to authorize the seizure by the marshal of the property sued for." This motion was founded on the following provisions of the statute of Alabama, Code 1876:

"§ 2942 (2593). When a suit is brought for the recovery of personal chattels in specie, if the plaintiff, his agent or attorney, make affidavit that the property sued for belongs to the plaintiff and execute a bond in such sum and with such surety as may be approved by the clerk, with condition that if the plaintiff fail in the suit, he will pay the defendant all such costs and damages as he may sustain by the wrongful complaint, it is the duty of the clerk to endorse on the summons that the sheriff is required to take the property mentioned in the complaint into his possession unless the defendant give bond payable to the plaintiff, with sufficient surety, in double the amount of the value of the property, with condition that if the defendant is cast in the suit, he will,

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within thirty days thereafter, deliver the property to the plaintiff, and pay all costs and damages which may accrue from the detention thereof."

"§ 2943 (2594). If the defendant neglect for five days to give such bond, the property sued for must be delivered to the plaintiff, on his giving bond, with sufficient surety, in double the value of the property, payable to the defendant, with condition to deliver the property to the defendant within thirty days after judgment, in case he fail in the suit, and to pay damages for the detention of the property and costs of suit. If the plaintiff fail for five days to give such bond after the expiration of the time allowed the defendant, the property must be returned to the defendant."

Before the motion was decided, the court, on the application of the United States, made an order ex parte on the 16th of February, 1880, directing the marshal to sell the logs at public auction. The sale was advertised for March 10, but on March 8 the court stayed the execution of the order of sale till the pending motion to dissolve the order of seizure should be determined. On June 9, 1880, the court made an order granting the motion to dissolve the order of seizure, and directing the marshal to restore the property seized. The United States excepted to such ruling. On January 10, 1881, the case was tried by a jury, which found for the plaintiffs 500 logs, and assessed their value at $150, and a judgment was entered that the plaintiffs recover of the defendants said 500 logs or their alternate value, $150. On the same day, the United States moved the court to vacate the order dissolving the seizure of the logs on the ground that the defendants had no property which was not exempt from execution by the laws of Alabama other than the logs seized. O n the 13th of January, the motion was denied, and the plaintiffs excepted. They then brought this writ of error to review the judgment and proceedings. chanrobles.com-redchanrobles.com-red

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