310. The plea of non cepit infra sex annos, in replevin, will not answer the detainer, and cannot be pleaded.1 And where the defendant pleaded not guilty, de captione prædicta infra sex annos jam ultimo elapsos, though it was urged, that this was the same as pleading non cepit, that, if he did not take, he could not be guilty of the detainer; and that, if this way of pleading was not allowed, the statute would, as to this action, be entirely evaded: yet the plea was held ill; for it was said, he ought to have answered to the detainer, as well as to the taking; that there might be a detainer without a taking; and that a thing might be lawfully distrained, although unlawfully kept.2 But these objections would not apply to the plea of actio non accrevit, &c. 1 Com. Dig. Plead. 1 Har. & McHen. (Md.) 145. 2 Bacon, Abr. Lim. of Act. CHAPTER XXVIII. JUDICIAL PROCESS. 311. ALL that is positively enacted in statutes of limitation generally is, that the actions therein mentioned shall be commenced and sued within the time limited. "What act of the party commences the suit" is, therefore, a matter of judicial construction and decision entirely. Formerly, in England, by the general rule in the Court of King's Bench, the Bill of Middlesex, or latitat, was a process sufficient to avoid the statute. The statute, it was considered, did not intend to bar, unless the party had forborne during the time limited; and that if he sued out a latitat within the time for obtaining custody of the defendant, in order that he may declare against him, there is no forbearance on the part of the plaintiff, though, artificially, the bill upon the record is the first step.2 As a latitat was sufficient to suspend the statute in the King's Bench, so a capias was sufficient in the common pleas without suing out an original.3 1 The act of limitation of 32 Hen. VII. computes the prescription from the time run before the teste of the writs therein mentioned. But because that would not be a true criterion of the time of commencing suits, within the provisions of the statute of James, the legislature has in the latter purposely avoided mentioning the teste of writs, the exhibiting of bills, summoning, serving, &c., but leaves to every court to say "what act of the party commences the suit." Per Lord Mansfield, Henderson v. Whitaker, 2 Burr. 950. 2 Foster v. Bonner, Cowper, 454; Sid. 52; Carth. 232; 8 Mod. 109. 3 Haven v. James, Willes, 258; 15 Vin. Abr. 103. By the statute 1 & 2 Vict. § 2, all personal actions must now be commenced by writ of summons. The writ is now the commencement of the action, and, as the record mentions the time when the first writ was issued, it seems to be now unnecessary to reply that a writ has been sued out within time, or to produce the writ in evidence. If, however, the plaint were levied in the first instance in an inferior court in proper time, and subsequently removed to the superior court, and to the declaration in the superior court the defendant plead the statute (as the uniformity process act does not in such case apply), the plaintiff should reply and show the proceedings in the inferior court, and the statute will be barred. To save the statute of limitations by issuing a writ, the plaintiff must, since the statute 2 Will. IV., c. 39, § 10, either arrest or serve the defendant, as the case may be, or proceed to or towards outlawry upon the writ, or get it properly returned and entered of record, and continued by other writs; also properly returned, 1 1 312. The general rule appears to be, in this country, that, at the time of suing out of the writ, the action commences;1 and either, when the writ is delivered to the sheriff, or to his deputy; or when it is sent to either of them with a bona fide intention to be served upon the defendant, it is considered to have issued.2 It has been asserted by high authority, that the reporter of this case erred in his marginal note, in supposing that the court meant to decide, that it was not necessary to prove that the writ actually reached the hands of the sheriff. By the same authority, the decision in the case of Beekman v. Satterlee, in New York, which went to the length, that the delivery of a writ to the sheriff and obtaining his return thereon, was sufficient to save the statute, though the sheriff had received instructions not to serve it, was questioned; and it was said, that, notwithstanding that decision, it could not be thought that the sheriff was authorized, under his oath of office, to make a false return upon the writ, by stating that the defendant could not be found in his bailiwick, when in truth the only reason why the defendant was not arrested was because the sheriff had been instructed by the plaintiff not to execute the process of the court. The suing out of the writ, he said, was undoubtedly the commencement of the suit; but the writ is not considered as legally sued out until it is delivered to the sheriff, with authority to him to serve it on the defendant, if he and entered of record, as that statute (sect. 10) provides that no writ shall be available to save the statute, unless that be done. Resealing a writ to save the statute is not a reissuing. Browne on Actions at Law, 61; and vol. 45, Law Lib. 51. 1 Lowry v. Lawrence, 1 Caines, 79; Cheetham v. Lewis, 3 Johns. 42; Fowler v. Sharp, 15 Ib. 323; Badger v. Phinney, 15 Mass. 859; Harris v. Dennis, 1 Serg. & Rawle, 236; Carpenter v. Butterfield, 3 Johns. Ch. 145. [Hail v. Spencer, 1 Angell (R. I.), 17; Kenney v. Lee, 10 Texas, 155. The action commences by filing the complaint without the issuance of summons thereon. Sharp v. McGuire, 19 Cal. 577; Pemental v. San Francisco, 21 Ib. 351. Information filed and the arrest and recognizance of the offender is a commencement of a prosecution. State v. Groome, 10 Iowa (2 With.), 308. The process regularly delivered to the officer for service is the commencement of suit. Evans v. Galloway, 20 Ind. 479. If the defendant dies after suit brought, and after the expiration of two years, the time within which after giving bonds an administrator cannot be sued, the administrator is summoned in to defend, he cannot plead the statute of limitations, as the coming in of the administrator to defend is not the commencement of the suit. 13 Allen (Mass.), 221.] 2 Burdick v. Green, 18 Johns. (N. Y.) 14. 3 Per Chancellor Walworth, in Jackson v. 4 Beekman v. Satterlee, 5 Cow. (N. Y.) 519. 5 Jackson v. Brooks, supra. [Davis v. Duffie, 8 Bosw. (N. Y.) 617.] Brooks, in error, 14 Wend. (N. Y.) 649. can be found within his bailiwick, or is placed in his office, or transmitted to him for the purpose of being sued. It was not absolutely necessary, however, said Chancellor Walworth, that the writ should have actually reached the hands of the sheriff, so that the defendant could have been arrested thereon before the expiration of the time limited by the statute for the commencement of the action. And such he took to be the decision in Ross v. Luther, and in Burdick v. Green.2 313. But it has been held that if the plaintiff would avoid the bar of the statute by having seasonably sued out process, which failed of service through inevitable accident in the transportation by mail, it is incumbent on him to show, that he previously ascertained the course of the mail, and that a letter enclosing the precept, and properly directed, was put into the post-office sufficiently early to have reached the officer, by the ordinary route, in season for legal service. The court, in this case, said that, if from any consideration, the plaintiff saw fit to send his writ for service even to a remote town in the county, he had a right so to do, and was not to be prejudiced thereby, provided he sent it in such season as that by due and usual course of mail to such town, the precept would reach the officer sufficiently early for legal service. This, the court held, he must show as a necessary link in the chain of evidence; for, if the letter was not seasonably put into the office, then its non-arrival cannot, by the party sending it, be attributed to inevitable accident.3 1 Ross v. Luther, 4 Cow. (N. Y.) 158. 2 Burdick v. Green, supra, § 312. [Delivering a claim to a justice of the peace, with directions to issue a summons, is not a commencement of the suit. Price v. Luter, 14 Texas, 6. The issuing of a new summons, after an insufficient service of a former one, is not the commencement of a new action, but the continuance of the old. Isaacs v. Price, 2 Dill C. Ct. (U. S.) 347.] 3 Jewett v. Greene, 8 Greenl. (Me.) 447. It was held, in Vermont, that the taking out of the writ is the commencement of the process, to avoid the statute, if it be served in time for the next court to which it is returnable. Allen v. Mann, 1 Chip. (Vt.) 94. [So is the issuing of a summons and order of notice upon a petition. Blain v. Blain, 45 Vt. 538.] The Revised Statutes of Massachusetts provide, that if any action duly commenced within the time shall fail of a sufficient service or return, by unavoidable accident, or default or neglect of the officer, the plaintiff may commence a new action within one year. (See Appendix, p. li.) [And where, on the 31st of August, 1844, A. sued out a writ against D., on a note dated September 15, 1838, payable on demand, and described D., in the writ, as of P., in the county of B., where he formerly resided, though he had removed to M., in the county of P., about two years before, without A.'s knowledge; and the writ was delivered to an officer in the county of B., . 314. A capias issuing to the sheriff of a county different from that in which the defendant resides is, it has been held, a good commencement of a suit to save the statute.1 Chancellor Walworth, in giving his opinion to this effect, relied upon Bremion v. Evelyn, and Hall v. Wybourn, in which cases it seems to have been conceded by the court that a plaintiff might file an original, or sue out a latitat, for the mere purpose of saving the statute, although the defendant was out of the realm, so that the process could not be made effectual against him, except by a continuance thereof after his return. Such, says the Chancellor, appears to have been the practice both in this country and in England, previous to the Revolution, and in New York, down to the time of the operation of the Revised Statutes of that State. The plaintiff having complied with all the necessary forms to continue the process, with a view to declare against the defendant, upon the promises laid in the declaration, at a subsequent time, when the defendant should have actually appeared in the suit thus formally commenced, the Chancellor thought it was competent for the defendant to tender an issue of fact upon the question whether the plaintiff intended to have the writ served, when he did no act, and gave no instructions to prevent the sheriff from serving the same, if the defendant had been found in his bailiwick at any time before the return day of the capias sued out. 315. Though the issuing of the writ is regarded as a sufficient commencement of the action, yet the date of it is not conclusive on near the last day of service, who made return thereon that he could not find D. in his precinct; and, on the 31st of December, 1844, A. sued out another writ against D., the same note, and caused it to be served and entered in court, — held, under the foregoing provision, that the first action was duly commenced, and that it failed of a sufficient service by an unavoidable accident, and that the second action was saved from the operation of the statute of limitations. Bullock v. Dean, 12 Met. (Mass.) 15. In North Carolina the new writ must be returnable at the next term of court. Fullbought v. Tritt, 2 Dev. & Bat. 491; Hanna v. Ingram, 8 Jones (Law), 55.] And in Maine, in such case, within six months, in respect to a real or mixed action. (Appendix, p. xxxviii.) In Vermont, within one year, in any action. (Appendix, p. xlii.) In New York, it shall be competent for the defendant to prove on the trial, that the process instituted by the plaintiff was not issued with the intent required by law, &c. (Appendix, p. lxiv.) [In Arkansas, the issuance of the writ is the commencement of the action. State Bank v. Cason, 5 Eng. (Ark.) 479. In Connecticut, the service. Sandford v. Dick, 17 Conn. 213.] 1 Jackson v. Brooks, 14 Wend. (N. Y.) 649, in the Court of Errors, fourteen of the judges (with Walworth, Chancellor) to twelve. 8 Carth. 136. 2 1 Levinz, 111. |