
    Lemuel N. Baldwin vs. John B. Conger.
    The case of Wharton v. Conger, (supra, p. 510,) cited and confirmed.
    Where the sheriff returned on a writ of attachment, “ levied this attachment on the following named slaves, &c.,” it was held, that by the word levied, must be understood a legal levy, which included a seizure of the property.
    Where a motion to quash an attachment, was made on the ground that the plaintiff in the attachment had dismissed a suit for the same cause of action, and pending to the same term to which the attachment was returnable, under the statute (H. & H. 6á3, see. 54,) which forbids a plaintiff, on dismissing his suit, to renew it to the same term of the court; and the record showed that the suit dismissed was for the sum of one hundred and fifty dollars, and the attachment was sued out for the sum of one hundred and eighty dollars, and there was no other proof of the identity of the claims ; held, that the motion could not prevail.
    It seems that it is sufficient compliance with the statute, which requires the party plaintiff to subscribe his proper name to the bond and affidavit, if they subscribed with the initials of the Christian name; it need not be written out in full.
    In ERROR from the circuit court of Warren county; Hon. George Coalter, judge.
    On the 5th of July, 1844, Lemuel N. Baldwin made affidavit in these words, viz.:
    
      “ The State of Mississippi,
    Claiborne County.
    “ Personally appeared 'before the undersigned, justice of the peace in and for said county, L. N. Baldwin, who being duly sworn, deposes and says, that John B. Conger, of the county and state aforesaid, is justly indebted to him in the amount of one hundred and eighty dollars, and that he, the said L. N. Baldwin, is informed and believes that the said John B. Conger is about removing his effects out of this state, so that the claim of him, the said L. N. Baldwin, cannot be made; and that the said Baldwin does not sue out his attachment for the purpose of harassing or vexing said Conger. L. N. Baldwin.”
    “ Sworn to and subscribed before me,
    “ Samuel F. Boyd, J. P."
    
    On the same day Baldwin entered into bond; whereupon the justice issued an attachment, which with the return thereon, is in these words, viz.:
    “ The State of Mississippi,
    Claiborne County.
    “ To the sheriff or any constable of said county, greeting. Whereas, L. N, Baldwin hath complained on oath to the undersigned, justice of the peace in and for said county, that John B. Conger, of said county and state aforesaid, is justly indebted to the said Baldwin to the amount of one hundred and eighty dollars, and oath having also been made, that the said John B. Conger is about removing his effects out of this state, so that the claim of him, the said Baldwin, cannot be made; and the said L. N. Baldwin having given bond and security according to the directions of the statute in such case made and provided, we therefore command you that you attach estate of the said John B. Conger, if to be found in your county, or so much thereof repleviable on security, as shall be of value sufficient to satisfy said debt and cost, according to the complaint; and such estate so attached in your hands to secure, or so provide that the levy may be liable to further proceeding thereupon, to be had before the circuit court of said county, to be held at Port Gibson on the fourth Monday of November, 1844, so as to compel said Conger to appear and answer the complaint, &c.
    
      “ Witness S. F. Boyd, Esquire, justice of the peace in and for said county, 5th July, 1844, and sixty-ninth of American independence. S. F. Boyd, J. P. [seal.] ”
    “ Received, July 5th, 1844.
    “ M. 0. HopKins, Sheriff.
    
    “ By James A. Gage, D. S.”
    
      “ Levied this attachment on the following named .negro slaves, to wit, Moses Slater, Mary his wife, and Cornelius his child, as the property of John B. Conger. Done in the presence of L. Vanhook, a credible witness, and declaring in his presence that I attached the. said negro slaves at the suit of the plaintiff in said suit. M. O. Hopeins, Sheriff.
    
    • “ By James A. Gage, D. S.”
    
    “ July 6th, 1844.
    “ I value the negroes as follows : Moses Slater $500, Mary $400, Cornelius $150. $1050.”
    The negroes attached were replevied by John B. Conger giving bond with P. Briscoe, D. Harrison, W. Briscoe, W. C. Coleman and R. Valentine, as sureties, 13th May, 1845.
    A declaration on the attachment was filed the 28th November, 1844, for $300, alleged to be due 1st July, 1844, for services rendered as attorney at law for the defendant.
    At the May term, 1845, the following motion was made, viz.:
    Motion to quash the attachment, and the levy thereof, and to dismiss this case.
    1st. Because the affidavit and attachment are illegal and insufficient.
    2d. Because the levy and returns thereof upon said attachment, are illegal and void.
    3d. Because on*the 1st of July, 1844, a suit at law was pending and undisposed in this court, on this same cause of action, between the same parties hereto, which said suit had been regularly continued from the May term, 1844, of said court, until the next November term thereof.
    
      Which motion to quash was sustained by the court after argument, and the plaintiff tendered a bill of exceptions, which was signed by the court. This bill states that the defendant offered in evidence the declaration and writ in the suit of Baldwin against Conger, pending in the circuit court of Claiborne county, previous to issuing the attachment, and which had been commenced 15th March, 1844, for the sum of one hundred and fifty dollars for services due Baldwin as attorney, and the following indorsement on it: Dismissed in the clerk’s office, this 5th day of July, 1844, at one o’clock, P. M., and all cost paid.
    “ D. McDoijgall, Clerk.”
    
    Baldwin sued out this writ of error.
    
      John B. Coleman, for'plain tiff in error.
    1. The affidavit and return, so far as we can discover, are both strictly formal.
    2. Has there been a renewal of suit under the statute H. & H. p. 624, <§> 542, in this case? To constitute a renewal, both suits must be identical. The suit dismissed was a proceeding in personam ; that subsequently instituted was a proceeding in rem. Could not a plaintiff in detinue dismiss his suit, and bring trover to the same term without a violation of this proviso ?
    3. The construction contended for would place a diligent creditor in a worse position than one who was slumbering on his rights. Baldwin had commenced suit for the recovery of his claim. Pending the suit, the defendant commenced removing his effects. Had he not brought suit, there can be no question that he would have been entitled to his attachment. Could it have been contemplated by the statute, that he should stand still and see the property of the defendant removed beyond the process of the court?
    
      Baldwin, in proper person.
    1. The act in H. & H. p. 624, was passed in 1839; the act under which the attachment issued in 1824, which extends to all cases where affirmation, &c. is made; the former statute can therefore have no application to a proceeding under the latter.
    
      2. The identity of the two suits should have been plead in abatement. James v. Dowell, 7 S. & M. 333; Commercial Bank of Columbus v. Thompson, 7 Ibid. 443; Spear v. King, 6 Ibid. 284; Commercial Bank of Rodney v. McCaa, 8 Ibid. 720; Lovelady v. Harkins, 6 Ibid. 412.
    3. To renew a suit, means to restore a suit to its former condition ; the statute prohibits the renewal of a suit to the same term; it refers to the same kind of a suit; the judgment in the suit dismissed would have been a general lien ; the attachment only a special one ; the suits, therefore, were not identical.
    
      J. B. Thrasher, for defendant in error.
    1. The affidavit and bond are subscribed with the initials, and not the full name; this violates the statute (H. & H. 549, sec. 13,) which directs the bond and affidavit to be signed with the proper name of the party.
    2. The pendency of the suit at law at the same term of the court, prohibited the commencement of the attachment suit. H. & H. 664.
   Mr. Justice Thacher.

delivered the opinion of the court.

This was an action commenced in the circuit court of Claiborne county, by attachment by virtue of the statute of 1844.

The objections to the affidavit, bond and writ of attachment, are similar to those made and decided in the case of R. G. Wharton v. John B. Conger, ante 510, at the present term of this court.

The return of the sheriff upon the writ shows that he “levied” the writ. This can mean only a legal levy, which includes a seizure of the property of which it is the subject.

Another cause to quash the proceedings made in the circuit court, was founded upon the allegation that the attachment had been sued out to a term of the court, when a suit for the same cause of action, and pending to the same term, had been dismissed contrary to the statute, (H. & H. 623, § 54,) which forbids a plaintiff, upon dismissing his suit, to renew it to the same term of the same court.

However erroneous it might have been to have sued out the attachment, under the circumstance of the dismissal of a suit for the same cause of action at the same term, the fact does not appear upon the face of the proceedings, but is rather negatived from their showing, that the amounts in controversy were not identical in the two actions. Upon this ground, a motion to quash the proceedings could not avail. Bank of Rodney v. McCaa et al. 8 S. & M. 721.

Judgment reversed, and cause remanded.  