
    David Jacobs vs. James Burrows and Thomas J. Burrows.
    
      “Stay Law” — Capias ad Respondendum — Notice—Bond.
    The second and third sections of the Act of 1861, commonly called the “ Stay Law,” construed.
    Where a plaintifF, suing in assumpsit by the usual writ of capias ad respon-dendum, made affidavit as required lf^ the second section of said Act, a notice by the Clerk requiring the defendant to give bond for the delivery of property, and a bond given in conformity with such notice, held to be illegal and void. The notice and bond should have been for the surrender of the body of the defendant.
    BEFORE GIlOYER, J., AT YORK, SPRING TERM, 1866.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ The plaintiff, who sues in assumpsit for goods sold and delivered, lodged his writ in the Sheriff’s office in January, 1866; and to authorize the service of said writ, an affidavit was attached, in compliance with the second section of ‘An Act to extend relief to debtors and to prevent the sacrifice of property at public sales,’-stating the amount of defendants’ indebtedness, and concluding as follows: ‘and deponent is in ' like manner informed and believes that the said James and Thomas Burrows are about to depart from the State of South Carolina with their property.’ A notice was indorsed by the Clerk of the Court, requiring the defendants, ‘according to the provisions of the Act of the General Assembly passed Anno Domini 1861, to give bond and security, to be approved by me, in the sum of $20,000, within ten days from the service hereof, conditioned for the delivery of property sufficient to satisfy the demand of David Jacob,' the plaintiff in this case.’ The Sheriff made the following return: ‘I this day personally served Thomas J. Burrows with a copy of this writ and also arrested him. He went before S. E. Moore, Clerk, and gave bond. James Burrows was not to be found in the district.’ Thomas J. Burrows gave his bond, with B. E. Briggs, J. M. Lowry, and Wm. E. Bose, as his sureties, payable to the plaintiff with the following condition: ‘If the above bound James Burrows and Thomas Burrows shall well and truly deliver to the Sheriff of York District, when judgment may be obtained, so much property as may be necessary to satisfy the demand of David Jacob, the plaintiff, in a suit commenced by him against tille said James and Thomas Burrows, 2d January, 1866, in York District, for merchandise sold by plaintiff to defendants, on or about 16th day of February, 1865,’ &o.
    “ Thomas J. Burrows and his co-obligors now move £o set aside the order made by the Clerk — also to have the bond given in conformity with said order delivered up and can-celled. It was argued, in support of the motion, that if the plaintiff in mesne process issue a capias ad respondendum, as in this case, the order of the Clerk and the condition of the bond should be for the surrender of the person as in bail process, and not for a, delivery of the property, which is necessary only in cases of attachment.
    “ The use of the words mesne $nd final process, in the second section of the Act, in connection with the words ‘liable to such process,’ and the words ‘according to the exigency of such process,’ creates an ambiguity in ascertaining the meaning of the Legislature. It is clear, however, that whatever mesne or final process may be used, there can be no service of the former, nor execution of the latter, witN out complying with the condition precedent required by the second section. An affidavit must be made by the plaintiff or his agent, or attorney-at-law, before the Clerk of the Court, ‘ that his debtor has absconded or is about to abscond, or that such debtor is removing, or is about to remove, his property beyond tbe limits of tbis State, or is fraudulently disposing of the same.’ A copy of tbis affidavit, according to tbe direction of tbe third section of tbe Act, must be personally served on tbe defendant, or a copy left at bis residence; and tbe Sheriff is required, on tbe filing of tbe affidavit, to arrest tbe defendant, &c. Such provisions seem to contemplate tbe issuing of tbe usual capias, and not an attachment. It is an anomaly to call that a proceeding in rem, which, expressly requires tbe service of tbe writ personally on tbe defendant, by leaving a copy at bis residence; and directs bis arrest and requires him to give bond, &c. No provision is made for service of copy-writs on third persons, as garnishees in possession, and tbe whole proceeding implies that tbe defendant is within reach of tbe process of tbe Court, and that it is in personam. The bond required in bail process, it is argued, should have been used in such a case, and such would be my opinion if tbe Act did not direct tbe one prescribed in tbe second section. Tbe words ‘has absconded,’ and ‘about to abscond,’ &c., would seem to authorize tbe issuing of foreign or domestic attachments, but no attachment can be issued where tbe party can be personally served. If a debtor be beyond tbe limits of tbe State, can tbe creditor, under tbe provisions of tbe second and third sections, commence and' prosecute any action for tbe recovery of bis debt ? Tbe writ cannot be served until tbe affidavit is made, and if that be done, bow can tbe copy of tbe affidavit be served, or tbe Sheriff make tbe arrest and compel tbe giving of tbe bond, when tbe defendant is beyond tbe limits of the State ? Tbe Act does provide that, if tbe defendant shall fail to give bond and security within ten days after tbe service of a copy of tbe affidavit, be shall be deprived of tbe benefit of tbe Act; and probably it may be inferred that tbe plaintiff can then detain him in custody until be shall have given tbe usual bail bond. But tbis is only inferred, as no direction is given for bis release should be refuse to give tbe bond required by tbe Act. In this case, however, the bond was given, and the inquiry is, Have the provisions of the Act been complied .with? The provisions of this Act respecting the service of mesne process, so confound all distinctions between proceedings in rem and in personam, that doubts may well be entertained in ascertaining the meaning of the Legislature. My opinion is that the condition of the bond required in mesne process, either by capias or attachment, must be for the delivery of property, and that the words ‘ liable to such process,’ mean either liable to the lien of an existing execution, or, in case of mesne process, ‘to the exigency of such process at the time at which judgment may be obtained on such debt.’ The bond taken in this case is subject to this condition: ‘shall w-ell and truly deliver, when judgment may be obtained, so much property as may be necessary to satisfy the demand of David Jacob.’ The condition required by the Act is ‘ for the delivery of the property of such debtor liable to such process, or so much thereof as may be sufficient to satisfy the plaintiff’s demand,’ &c. This is, I apprehend, a substantial compliance with the requirements of the Act. The motion is refused.”
    The defendant, Thomas J. Burrows, appealed, and now moved this Court to reverse the order of his Honor, the Circuit Judge, on the following grounds:
    1. The Clerk of the Court of Common Pleas for York District, by virtue of the affidavit attached to the writ of capias ad respondendum in assumpsit of’David Jacob vs. James and Thomas Burrows, had no legal right to order said defendants to give bond for the delivery of property to satisfy plaintiff’s judgment, when recovered, and said order so made by said Clerk should have been set aside as moved for.
    2. Because the Sheriff by virtue of such process and order, had no legal right to hold the defendant, T. J. Burrows, in custody until lie gave bond for tbe surrender of bis property, when plaintiff obtained judgment, but could only properly require said defendants to enter into bond for tbe surrender of their persons. And it is submitted, tbe bond entered into by T. J. Burrows, with J. M. Lowry, B. E. Briggs, and William E. Bose, as bis sureties, in tbe penalty of twenty thousand dollars, for tbe delivery of property to satisfy plaintiff’s judgment, when recovered, is illegal and void,. and an ex-oneretur should be entered thereon as moved for.
    3. Because neither tbe order of tbe Clerk, nor tbe bond, sets forth “ whose ” property is to be delivered; whereas tbe Act of tbe General Assembly on which tbe plaintiff relies requires tbe bond to be for tbe delivery of “ defendant’s ” property.
    
      4. Because, by tbe terms of tbe bond taken in this case, tbe obligors bind, themselves for tbe delivery of property by James Burrows and Thomas J. Burrows, when no copies of tbe plaintiff’s affidavit and order made by the Clerk were personally served on James Burrows, orTeft at bis residence.
    5. Because, in tbe proceedings under- tbe “ stay” law, the order made by tbe Clerk must conform to tbe exigency of tbe process, whether mesne or final, and be for tbe surrender of tbe debtor’s person or property, as tbe process may be in personam or in rem, or against property.
    6. Because the affidavit, made by tbe plaintiff’s attorney-at-law, was not sufficient to authorize the Clerk to make tbe order complained of. In said affidavit there is no statement that tbe debtors bad absconded, or were about to abscond, or bad removed or were about to remove their property beyond the limits of this State, or were fraudulently disposing of tbe same.
    
      Williams, for motion.
    
      Melton, Martin, contra.
   The opinion of the Court was delivered hy

Wardlaw, J.

The second and third sections of the “Act to extend relief to debtors, and to prevent the sacrifice of property at public sales,” which was originally passed in 1861, (13 Stat. 18,) are made obscure by an effort at condensatiijn. Some parts of them are of general application; some relate to mesne process only; some to. final process only; some to process against property, mesne or final; and some to process against the person, mesne or final. We have been greatly aided by the very clear expositions of these sections given in' argument here by Mr. G. W. Williams, of counsel for the appellants; and we think that the meaning can be ascertained so as to give effect to every word, to adapt to every case the provisions intended for it, and to carry out the intention of the Legislature.

The first section of the Act makes it, in general, unlawful for any officer to serve or execute any process, mesne or final. The second and third regulate some special exceptions. They do not originate any new process, nor dispense with any requisites before applicable to process then existing; but they prescribe an additional condition for the efficacy of any process, and somewhat regulate proceedings thereunder. The additional condition is, that the plaintiff, his agent or attorney-at-law, shall make affidavit before a Clerk of Court that his debtor is in at least one of the five following predicaments: 1. Has absconded. 2. Is about to abscond. 3. Is removing his property beyond the limits of the State. 4. Is about to remove his property beyond such limits; or, 5. Is fraudulently disposing of his property. Before the affidavit, the plaintiff may sue out process, mesne or final, as he might have done before the Act; but the Sheriff or other executive officer (constable or coroner) is prohibited from obeying it. When the affidavit is made and attached to the process, the Clerk makes a copy of it on a copy of the process, or on a separate paper, and, subjoins thereto a notice' requiring the defendant, within ten days from the service of it, to give a bond, which is varied according to the nature of the process —its “exigency,” to use the phrase of the Act. This copy-affidavit and original notice the Clerk delivers to the proper executive officer, to be served on the defendant personally, or by copy left at his residence. So soon as the Sheriff receives the process with affidavit annexed to it, he may proceed to execute it, by arresting the defendant or making a levy of property, as one or the other is required by the process — “ according to the exigency of the process.” The defendant being served with the copy-affidavit and notice may, within ten days thereafter, give bond. If he fails to do so, he falls under the proviso of the second section — that is, he is deprived of the benefit of the Act, but he does not lose any right which, before the Act, he would have had with respect to such process against him. If the defendant cannot be served, the plaintiff’s case goes on, and the defendant’s rights, under the Act or prior to it, are unaffected.

Now, we will distinguish between the different kinds of process, and see what provisions are applicable to each. The mesne process, in contemplation of the Legislature, were such as required the Sheriff to take the body or the property of the defendant — not a summons or capias acl respondendum without order for bail, for these latter were inadequate for either of the predicaments which the additional affidavit must specify, and could give to the Sheriff no authority for what he is required to do. Foreign attachment, domestic attachment, and bail-writ were of mesne process in contemplation, as were also, of final process, fi. fa. and ca. sa.

If the plaintiff sues out attachment, foreign or domestic, no preliminary nor observance previously required is dispensed with by the,Act: bond, affidavits, resort to a magistrate in proper cases, all must be attended to as before. After the additional affidavit, which the Act requires, has been attached to the process, the proper officer levies, serves garnishees, and makes return, all as before. The notice which the Clerk subjoins to the copy-affidavit requires the defendant, within ten days from the date of its service, “ to give a bond payable to the plaintiff in'double the amount of the sum sued for, with security, to be approved by the Clerk,” conditioned for the delivery of his (the defendant’s) property, “ liable to such process” as that of the plaintiff in the case on hand, or so much thereof as may be sufficient to satisfy the plaintiff’s demand, to the Sheriff) “at the time when judgment may be obtained on the debt” sued for in that case. If this notice is served, the defendant may, within ten days thereafter, give .the required bond, and thereupon the property levied on, if it has been taken into the possession of the officer, returns to him from whom it was taken. If the defendant fails, after being served, to give the required bond within ten days, his rights to dissolve the attachment and to appear without doing so are unaffected; but he loses the benefit of the Act — that is to say, he becomes subject to process without additional affidavit, mesne and final, in that case, and perhaps in all cases — a questionable matter not now before us. If the defendant is out of the State and has no residence in it, or for other cause the notice cannot be served on him, and a return to that effect is made on the notice, the defendant loses no benefit under the Act nor under previous regulations, but retains the right to give the bond, if he will, when he is served with the notice; and the plaintiff) having complied with the condition imposed upon him, goes on as if the Act had not been passed.

If the plaintiff sues out an ordinary bail-writ, or a bail-writ under the Act of 1839, relating to cases of debts not due, or an order for bail pending an action under the Acts of 1827 and 1839, he must begin, and to some extent proceed, as he would in a like case have done before the Act of -1861, to make effective the process he desires. After the additional affidavit has been annexed to his process, the Sheriff may immediately arrest the defendant. The notice which the Clerk subjoins to the copy-affidavit requires the defendant, within ten days from the date of service, “ to give a bond payable to the plaintiff in double the amount of the sum su^d for, with security to be approved by the Clerk, conditioned * * * for the surrender of the body of the defendant to the Sheriff at the time when judgment may be obtained on the debt sued for” in that case. Tbe defendant, being served with this notice, may give the bond as required, and thereupon be is enlarged. If he fails to give the bond witbin ten days, his right to give an ordinary bail-bond, or apply for discharge under the Insolvent Debtors’ or Prison-bounds Act is unaffected, but be loses the benefit of the Act of 1861 — that is, be becomes subject in that case, and perhaps in all cases, to the service or execution of process, mesne or final, without additional affidavit.

With respect to final process, the provisions of the sections under examination are, for fi.fa., similar to those for attachment, and for ca. sa. similar to those for bail-writ; except that “the amount of the judgment on which such final process is based” is, for the penalty of the bond, doubled, instead of “ the amount of the sum sued for,” and that the time, in the notice given by the Clerk for delivery of property or body to the Sheriff, is instead of “the time át which judgment may be obtained on such debt,” at the time limited for the operation of the Act of 1861, continued as it has since been.

The notice given by the Clerk in the case before us, and the bond taken, are not in conformity with the Act which required them. The motions of the appellants are therefore granted — the order or notice of the Clerk is set aside, and the bond given thereunder is directed to be cancelled.

Motions granted.

Dunkin, C. J., and Inglis, A. J., concurred.

Motions granted.  