
    Charles L. Guilleaume vs. C. C. Miller.
    
      Practice — Appeal—Stay Law.
    
    The efficacy of an order on circuit setting aside a writ is not suspended, so as to restore the pendency of the action, by a mere notice of appeal, where the appeal is afterwards abandoned.
    Failure to docket an appeal is equivalent to an abandonment, or dismissal of the appeal.
    An affidavit that defendant intends to abscond is not a compliance with the requirement of the second section of the Act of 1861, commonly called the Stay Law, that there should be an affidavit that defendant is about to abscond.
    BEFORE GLOYER, J., AT CHARLESTON, APRIL TERM, 1866.
    The report of his Honor, the presiding Judge, is as follows:
    “ The plaintiff sued out of the Court of Common Pleas for Charleston District a writ in assumpsit against the defendant, which was entered in the Sheriff’s office, April 4, 1866. Attached to the writ was the plaintiff’s affidavit, stating the defendant’s indebtedness, and concluding as follows : ‘ That the said Miller intends to depart from the State, and to abscond, carrying with him his property, without satisfying deponent’s claim and with intent to defraud him.’ In compliance with the second section of the ‘Act to extend relief to debtors and to prevent the sacrifice of property at public sales,’ the Sheriff served a copy of said writ on the defendant April 4, 1866, who entered into bond as required by the
    “The defendant now moves to set aside the service of said writ and to cancel the bond, on the ground that the allegations of the plaintiff, in the affidavit filed by the Clerk, are unfounded in fact.
    “He also pleads in'abatement of the writ, ‘because before the said writ was issued, to wit, March 5, 1856, the plaintiff had issued a writ in foreign attachment, against the defendant,, out of the Court of Common Pleas for Anderson District, in a plea of trespass on the case for the non-performance of the same identical promises and undertakings in the said writ in this present suit mentioned,’ etc., and that the said former suit was depending in the said Court at the time of the issuing of the writ in the present suit,’ etc. To this plea the plaintiff replied that ‘ at the time of the issuing of the writ in this case, the writ in foreign attachment had been set aside by order of this Court, and‘that the said writ of foreign attachment was not depending at the time of the issuing of the writ in this case.’ The defendant rejoined, admitting that said suit had been set aside; but alleging that the plaintiff had appealed from the judgment of the Court ordering said writ to be set aside, and that said suit is now still depending in Anderson District. By his surrejoinder the plaintiff insists that the order setting aside the writ in foreign attachment was not suspended by the notice of appeal, etc., upon which the defendant demurred and the plaintiff joined in demurrer.
    “ In support of his motion to set aside the service of the writ, and to cancel his bond, the defendant submitted sundry affidavits, disproving his alleged intention to abscond and to remove his property ; but I do not propose to decide the question of veracity raised by the several affidavits ; for, conceding the truth of the plaintiff’s affidavit, on which the defendant was arrested and gave bond, I apprehend that the primary inquiry is, has the plaintiff complied with the second section of the Act of 1861, which provides that,' before service of mesne process, the creditor shall make affidavit ‘ that such debtor has absconded, or is about to abscond, or that he is removing or is about to remove his property beyond the limits of this State, or is fraudulently disposing of the same.’ The plaintiff swears ‘that said Miller intends to depart from the State, and to abscond, carrying with him his property, without satisfying deponent’s claim, and with'intent to defraud him.’ The benefit of the Act is withheld from fraudulent debtors, and what constitutes fraudulent conduct is specified in the second section, which the plaintiff must show by affidavit; and although it is generally safer to adopt the language used, especially when the party claims the benefit of an exception, yet if the words in this affidavit had expressed clearly, by equivalent words, what the Legislature meant, the substitution —as conceal, for abscond — might not affect the sufficiency of the affidavit. The creditor is required to show that his debtor has absconded or is about to abscond, or that he is removing or is about to remove, etc. The plaintiff’s affidavit .alleges that he intends to depart from the State and to abscond, etc. The word about, used in connection with the performance of an act, expresses strongly the present purpose of fulfilment, and in that sense the Legislature employs it; but intend merely imports an inclination to do an act, the performance of which, depending on circumstances, implies no fixed design. The words are certainly not synonymous in the connection in which they are used, and the substitution of intend is not a compliance with the act. Judging from the tenor of the affidavits submitted, it may be inferred that the plaintiff, from the indications furnished by the defendant’s conduct, could not safely conform to the language of the Act, and therefore he uses such terms as he, with truth, could employ. I am of opinion that the plaintiff’s affidavits did not authorize either the service of the writ or the arrest of the defendant, and his motion to set aside the service of the writ and to cancel his bond is therefore granted.
    “As to the plea in abatement of the plaintiff’s writ: there is no doubt that where two actions áre pending in the same Court, between the same parties and for the same cause, the regular course is to plead in abatement. Here the question raised by the demurrer to the plaintiff’s surrejoinder is, Were two actions pending ? or, Can a plaintiff, pending an appeal, commence a second action? It was argued, that the order setting aside the writ in attachment is final and is the legal termination of the attachment, and that the appeal does not operate as a supersedeas. The 64th rule of Court permits the appellee ‘to enter up his judgment and lodge his execution to bind property; but if the motion in the Appeal Court be sustained, then the judgment and execution shall be wholly set aside.’ Where notices and briefs have been served and the cause has been docketed, it has been decided that ‘the opposite party is not at liberty to proceed in the Circuit Court until that motion is disposed of;’ Tongue vs. Gist, 1 N. & McC. 110; and in Trimmier vs. Trail, 2 Bail. 480. it is said that the effect of an appeal, in restoring a case to its former status, is provisional. The judgment entered up under this rule of Court cannot be regarded as absolutely complete; but, as was said, arguendo, in Denoon vs. O'Hara, 1 Brev. JR. 500, it is conditional, and becomes conclusive when the appeal is abandoned or dismissed; having then the effect of a judgment entered up nunc pro tunc. Such a judgment gives a qualified lien on the property, and, thereby, affords the same protection against the abuse of the right of appeal as is afforded in England by the statutes requiring bail on writs of error. In such case, I apprehend that the appeal and the writ of error supersede any final action on the judgment. The cases' referred to from Johnson’s C. JReports were decided on principles long recognized by, and peculiar to, Courts of Equity, which exercise a discretion in determining how far an appeal-shall supersede all other proceedings, and they exercise the power by imposing terms on the appellant. ‘ The Court exercises its discretion so far only as to prevent pending injury or actual abuse by the intermediate delay. It permits no proceeding,'after an appeal, except in special cases founded on the reason and necessity of the thing.’ Biggs vs. Murray, 3 John. Ch. 160. In JEngland, both in Courts of Equity and the House of Lords, appeals do not stay proceedings without an order for that purpose, and this practice is said to have been for a long course of years. 15 Yes. 183. It was on the authority of Bigg and Murray, and the well-settled practice of the Court of Equity, that it was held, in Pell vs. Ball, 1 Kich. Eq. 361, that an appeal does not suspend the execution of a decree. In Courts of Law, a writ of error may or may not operate as supersedeas, depending on the bonafides with which it is prosecuted ; where it is manifestly for delay, it shall not supersede; and the discretion, exercised by Law Courts in England in cases of writs of error, may, in this country, in the analogous cases of appeal, be exercised by our Judges in affording a remedy by motion, instead of leaving a party to plead the pendency of the former action. But this is a plea in abatement of the writ, and not a motion addressed to the discretion of the Court; and there are cases in our reports where the same question, raised by the demurrer in this case, was considered. In Davis vs. Hunt, 2 Bail. 412, the only point determined, pertinent to this inquiry, was that, to sustain a plea of the pendency of a former suit for the same cause, the parties must be the same. It may, therefore, be inferred that the plea would have been sustained, if the parties had been the same, although the former suit was in equity. The report in the next case (Trimmier vs. Trail, 2 Bail. 480) states ‘that the defendant pleaded in abatement another suit for the same cause, pending at the commencement of the present action. It appeared, however, that a nonsuit had been ordered in the former action, prior to the issuing of the writ in this case; and it was only an appeal from the order of nonsuit which was pending at the commencement of this action, and that this appeal had since been abandoned.’ The Circuit Judge overruled the plea, and his judgment was sustained. _ This case was distinguishable because the appeal had been abandoned, and, consequently, the order of the Circuit Court was a final adjudication. Cordray vs. Barnes, 3 "Rich. 281, was decided at the succeeding term of the Court. In that case, a nonsuit had been ordered in an action of slander; and, pending an appeal by the plaintiff to set aside the nonsuit, he died. The defendant proceeded, by sci. facias, against the administrators of the deceased plaintiff for costs; and it was held that the defendant was entitled to his judgment on the nonsuit and execution for his costs. This was a personal action, and did not survive; actio personalis moriier cum persona ; and the dismissing of his appeal, or the abandoning of it, could not have more effectually disposed of the plaintiff’s case, than did his death pending the appeal. Like the case of Trimmier vs. Trail, which ruled this, there was really no appeal pending when the judgment of the Circuit Court was enforced. O’Neall, J., in the former, and Earle, J., in the latter case, do hold that the principle was the same, whether the appeal was pending or not. With all due respect for such high authority, I doubt if a well-considered case be found, at law, (except, perhaps, where the appeal is palpably for delay,) where a plea, in abatement of a second writ, brought in the same Court, between the same parties, for the same cause, pending an appeal, has been overruled. The next case, in the order of time, is Pinckney vs. Henegan & Jones, 2 Strob. 250. A mandamus was awarded, commanding the defendants, public officers, to give to relator free access to, and the use of, certain records under their official control. On refusal of the defendants to obey the mandamus, a rule was served to show cause why an attachment should not issue against them; and on the return of the rule, the cause shown was, that the defendants had appealed from the order awarding a mandamus. The Court, therefore, ordered a peremptory mandamus; and, on appeal, it was held, that an order, directing a mandamus, should be executed pending the appeal, and that the appeal was not a supersedeas. It may be remarked, that the two cases relied upon by O’Neall, J., delivering the opinion of the Appeal Court, were decided in equity and in the House of Lords, where the practice has long obtained. But the question was not raised in this case, whether a second action may be brought pending an appeal from the judgment of the Court on the first. It was whether an order of the Court should be executed pending an appeal from that order, as in Qordray vs. Barnes, and in most of the cases referred to in the Court of Equity; and it. may be that in that class of cases, the judgment of the Court will yield no fruit, if an appeal shall operate as a supersedeas. In the language of Baron Parke, (Ohamberlayne vs. Gtreen, 9 Mees. & W. 290,) the defendant, in this case, asks to be relieved ' from the consequences of two remedies for the same debt being pursued at the same time.’ If parties may, ad libitum, bring suits pending an appeal, there would be no end to their multiplicity. Ordinarily, leave is obtained to discontinue before a second action is commenced; certainly, a party should be compelled to elect, or the subsequent action should abate. The abating of a writ, by the plea, of the pendency of another action, may sometimes work great injury, and this case will furnish an instance. Should the plaintiff’s appeal be abandoned or dismissed, and, in the mean time, the defendant, with his property, should remove beyond the jurisdiction of the Court, there would be no remedy. But, per contra, if the appeal should be sustained, the defendant would be harassed by two actions for the same debt. To obviate this, the Court must, in the exercise of a judicial discretion, so form their practice and control their process as to promote, and not defeat, the ends of justice. This might be accomplished by making the decision, on the plea in abatement, await the event of the appeal. But, as the defendant’s motion to set aside the plaintiff’s writ, for a defect in the writ, is granted, such a course is unnecessary. It is not, however, without doubt that judgment on the demurrer is awarded to the defendant.”
    The plaintiff appealed, and now moved this Court to reverse the decision setting aside the service of the writ in this case, upon the grounds:
    1. Because his Honor has erred in deciding that the words used in plaintiff’s affidavit are not sufficient, under the second section of the Act of 1861, to maintain his writ, and to take and hold the body of the defendant; whereas it is submitted that the language of the affidavit is within the letter and spirit of the Act, and sets forth all that was contemplated and intended by the law.
    2. That so much of the Act of 1861, “ to extend relief to debtors, and prevent the sacrifice of property at public sales,” commonly known as the Stay 'Law, as prevents the suing out of mesne or final process in causes vx contractu, having been declared unconstitutional, the same is void ab initio, and there was nothing to stop the service of the writ; while an ordinary affidavit of the debt would have sufficed to maintain plaintiff’s action and take the body of the defendant.
    And the plaintiff also appealed from the order of his Honor, the Judge, awarding judgment to the defendant upon the demurrer, upon the following grounds:
    1. Because he has erred in ruling that a suit of foreign attachment pending in another district, and to which the defendant has not put in special bail, nor appeared by warrant of attorney, is properly pleadable in a suit in personam for the same cause. The object of foreign attachment being to compel the absent debtor’s appearance, the object is not complied with until special bail has been entered ; and until special bail given, the plaintiff has the right to pursue his remedy against the person of'his debtor.
    2. Because there was no writ of foreign attachment pending in Anderson District for the same cause and at the same time that the present suit in this case was begun.
    3. Because the writ of foreign attachment, sued out in Anderson District at the suit of the same plaintiff, was dissolved and set aside by order of Judge Moses, and its efficacy, by virtue of said order, ended.
    4. That a simple notice to defendant’s counsel, of appeal from Judge Moses’ order, did not work a supersedeas of it; and said order stood the same as if no notice of appeal had been given.
    5. That an appeal cannot be judicially taken notice of until the brief in the case has been made out and served, and the case regularly docketed, pursuant to the tenth rule of Court; whereas in this case no brief was served, and the appeal never docketed.
    6. That the decision of his Honor, Judge G-lover, is in other respects erroneous, and contrary to law and sound justice.
    
      O' Oonnor, Porter, for appellant.
    
      McGready, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

In the case commenced in Anderson District by writ of attachment, an order was made at Anderson, in open Court, at March Term last, by Judge Moses,by which “the writ was set aside ” on a ground set forth in the order. This order was a judicial act instantly operative. Notice of appeal from it was given, and if the appeal had been prosecuted and been successful, the order would have been reversed, and the case would have been restored to the state it was in immediately before the order was granted. If the appeal had been prosecuted and bad failed, the motion made by it would have been dismissed, and the order would have continue^ effective. The neglect to docket the appeal at the sitting of the Court of Appeals next after the notice, was in effect an abandonment of it equivalent to its dismissal. Tongue vs. Gist, 1 N. & McC. 110. The order was in its nature executed and final, requiring no further process or action on the part of the defendant. It is now availing, and to hold that it has not been so ever since it was made, would be holding that a party may at bis pleasure suspend an order of Court until the next sitting of the Court of Appeals, and that then somehow, without confirmation of the order or formal removal of the suspension, efficacy may be restored to the order by neglect of the party who had arrested it. We desire not to enter now into a consideration of the general effect of notice of appeal, nor to attempt a distinction between the cases, if any, in which the notice operates as a supersedeas and other cases in which it does not. See Pell vs. Ball, 1 Rich. Eq. 361. It is enough in this case to notice its' exact similarity to the case of Trimmer and Trail, 2 Bail. 483, and conformably thereto to perceive that no other suit was pending when the suit in Charleston was commenced.

We are brought to the examination of the plaintiff’s affidavit. The Act of 1861, commonly known as the Stay Law, 13 Stat. 18, was continued by successive enactments year after year, and was of force when the contract sued in this case was entered into, and when this suit was commenced. The general provision of tbe Act made unlawful the service or execution of any process mesne or final; a special exception is admitted by the second section, which requires, amongst other things, an affidavit that the debtor “has absconded or is about ‘to abscond, or is removing or is about to remove bis property ,beyond the limits of this State, or is fraudulently disposing of the same.” He who would entitle himself to the peculiar privilege granted by the exception must conform strictly to its requirements. The plaintiff swears that “ said Miller intends to depart from the State, and to abscond, carrying' with him his property, without satisfying deponent’s claim, with intent to defraud him.” Now here is a very distinct imputation to the defendant of a fraudulent purpose: there is, moreover, a near approach to the averment of two of the several conditions, any one of which would serve, that he "is about to abscond,” or that “he is about to remove his property beyond the limits of the State.” But there is insufficiency to the extent of the difference between about and intend. About, as used in the Act, implies either being engaged in, or being on the verge or point of, an act; but intend conveys only the idea of purpose, the execution of which may be designed at a time .indefinitely future. This defendant may have intended to leave the State with his property at the end of the year, and may have declared this purpose and with it his determination to defraud the plaintiff; but all this set forth would not come up to the requirements of the Act.

The affidavit in this case is somewhat like that in the case of Barry vs. Iseman, in which at this term the Court of Errors held the Stay Law to be constitutional with respect to contracts entered into since its enactment. There the distinction between about and intend was influential, and here the insufficiency of an affidavit less objectionable than the one there considered must rest upon that distinction.

The orders made by the Circuit Judge meet the approbation of this Court, as do most of the observations he has made concerning them;

The motions are dismissed.

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

Motions dismissed.  