
    
      WHITAKER v. TURNBULL.
    In Case. Assumpsit on a promissory note.
    A note made or indorsed by the plaintiff, and obtained by the defendant, after an action has been commenced, cannot be set-off in that action, against the plaintiff’s demand.
    A suit is actually commenced, as soon as the writ is sealed and issued out of the office, in good faith, for the purpose of being served, or proceeded on; and that purpose is not afterwards abandoned.
    If an attorney sues out a summons, and shows it to a defendant, requesting him to sign his appearance to it, and the defendant promises to do so, in case he cannot arrange with the plaintiff; and defendant afterwards appears to that summons by himself or his attorney, the suit will be considered as having been actually commenced at the time the summons was first shown to defendant, so that a note or demand against the plaintiff) acquired by the defendant subsequent to that time, cannot be set-off, in that action.
    This cause came before the court, upon a case certified by the Circuit Court of the county of Essex, pursuant to the 6th sect, of the act, to facilitate the administration of justice, Elm. Dig. 543: and is as follows: The plaintiff having proved the note mentioned in his declaration, and read the same in evidence to the jury, rested his cause. Thereupon the defendant produced a promissory note, made by the plaintiff, and having proved the same, offered it in evidence under his plea of payment and notice of set-off. To this, the plaintiff objected on the ground, that the defendant had not given any evidence to show that he was the holder of the note, prior to the commencement of this action ; but the judge overruled the objection, and the note was i’ead to the jury. The plaintiff then called W. M. Scudder, who testified, that on the 2d or 3d day of July, 1838, as attorney for the plaintiff, he called on the defendant, and showed him the note declared upon, and at the same time, presented to him, the summons in this cause, and requested him to sign his appearance to the same: that the defendant said, he could not. pay the whole amount at once; but would pay one hundred dollars on account, and said he would see the plaintiff in relation to the matter. The witness then informed the defendant, that the plaintiff had instructed him not to permit the term, which was then drawing to a close, to pass without commencing the suit: upon which the defendant assured him, that if the plaintiff insisted upon the suit going on, he would give him an appearance on the summons. Thus matters stood until the 5th July, when defendant called on the witness and requested him to let the business rest as it was until he saw witness again ; to this the witness consented : and on the 7th July, defendant called, and informed the witness, that Mr. Whitehead would give an appearance for him : and on that day Mr. Whitehead indorsed an appearance on the writ. On the part of the defendant, Mr. Whitehead was then sworn, and testified, that at the same time when the defendant retained him in the cause, he gave him the note with instructions to use it as a set-off in the suit: that this was two or three days before he signed an appearance, to the summons, but he was not certain which.
    Upon this evidence, the cause was submitted to the jury upon the judge’s charge; in substance as follows: First, That unless the defendant was the owner of the note in question, prior to the commencement of this action, he was not entitled to the benefit of it, by way of set-off, to the plaintiff’s demand. Second, That a suit, is technically commenced on the day the writ is tested ; but not actually so, until the writ is sealed, and issued out of the office for the purpose of being served, or proceeded on. That therefore, if they believed, that the plaintiff’s attorney sued out the writ on the 2d or 3d of July, with intent to deliver the same to the sheriff that day, to be served, in case the defendant refused to acknowledge the service of it, then they must consider this action, as commenced at that time.
    The jury having rendered a verdict for the plaintiff, for the whole amount of the note declared upon, disallowing the note attempted to be set-off; the Circuit Court, upon the application of the defendant’s counsel, granted a rule to show 'cause, why the verdict should not be set aside, and a new trial awarded : and on like motion, it was ordered that a case be certified to this court, for its opinion, whether the said rule to show cause ought to be made absolute, or whether it ought to be discharged and final judgment be entered for the plaintiff.
    
      0. 8. Ilalsted for the defendant, and
    
      A. Armstrong for the plaintiff.
    
      
       Argued and orally decided at September' Term, 1840.
    
   Opinion of the Court, delivered by

Horstblower, C. J.

Two questions only, were raised on the argument of this cause: First, when, under the facts in this case, was this suit commenced ? And secondly, Is a defendant, who attempts to set-off against the plaintiff’s demand, an indorsed note, bound to show, in the first instance, that he was the owner of the note, at or before the commencement of the suit? The arguments, on both sides, (and with great propriety, in my opinion) proceeded upon the admission, that if the defendant acquired his title, to the note in question, after this suit had been commenced, he could not avail himself of it, by way of set-off, Eland v. Karr, et al. 1 East R. 375-7. That question came directly before the Supreme Court of New York, in the case of Carpenter v. Butterfield, 3 Johns. Cases 145, in which, the English decisions up to that period, were viewed by Thompson, Radeliff, and Kent, Justices: and their judgment, though not authority in this court, was based upon such reason and good sense, as, I think must be satisfactory to every lawyer. Nor was it denied on the argument, but that the evidence in the case fully warranted the jury, in finding that the note came into the hands of the defendant, after the commencement of the suit, unless, as contended by the defendant’s counsel, the suit was not actually commenced, until an appearance was given to the summons. Hence, it becomes unnecessary,' to express any opinion, on the second question raised on the argument, viz: Whether it is incumbent on a defendant who seeks to set off a note indorsed to him, to prove in the first instance, that he was such indorsee of the note, at the' time the suit was commenced: otherwise than by producing the note, regularly indorsed, and the indorsement superscribed, with an order to pay the contents to him. Upon that point therefore, I give no opinion; but shall proceed to consider the only question material for the determination of this case, viz: When, in judgment of law, upon the facts proved on the trial, was this suit commenced ?

I think the rule was correctly laid down at the Circuit: that when a writ is issued out of the office of the clerk, or of the attorney, acting, as is usually the practice, in this state, (at least permissively) as the agent or deputy of the clerk, in good faith, for the purpose of being served or proceeded on, and that purpose is not afterwards abandoned, it is, for all material purposes, (he actual commencement, of the suit. In Carpenter v. Butterfield, 3 Johns. Cases, 145, already cited, the officer went to the house of the defendant, for the purpose of arresting him, and found the door shut: the defendant, who knew he had the writ, told the sheriff, he would not suffer himself to be arrested, until he could procure a certain note, to be indorsed to him, which he intended to purchase, as a set-off against the plaintiff’s demand. The defendant afterwards got the note, and then submitted to an arrest and gave bail. On the trial, this set-off was rejected : and on a rule to show cause, the court sustained the decision, and held, that the suing out of the writ in that ease, was the commencement of the action. In Lowry v. Lawrence, 1 Caines’ R. 69, this decision was recognized and sanctioned. In Bronson et al. v. Earle, 17 Johns. R. 63, it was held that a delivery of the writ, against the sheriff, for an escape, to the wife of the coroner, at his house, he being absent, while the prisoner was off the limits, was such a commencement of the suit, as to make the sheriff liable, although the writ was not served on him, until after the prisoner had returned to the gaol liberties. In Burdick v. Green, 18 Johns. R. 14, it was held, that the issuing of the writ, is the commencement of the action, in all cases where time is material, so as to save the statute of limitations ; and that it is not necessary to show that it was actually delivered to the sheriff, but sufficient if made out and sent to the officer, by mail or otherwise, with a bona fide intention of having it served.

It is true, in the case now before us, the writ was not delivered or sent to the officer; but that was done with it, which was more civil to the defendant, and more effectually apprised him that a suit had been commenced. The writ and the evidence of the plaintiff’s demand, were both shown to him, and he was distinctly informed of the plaintiff’s intention to proceed in the action. In fact the writ was on its way to the sheriff, by the hands of the attorney, and would have been delivered to him, if the defendant had not stipulated to do that which was equivalent to a service of it by the sheriff.

The defendant’s counsel, however contends, that a suit is not commenced until an appearance is signed, or until the writ has been actually served by the proper officer: and the case of Jencks v. Phelps, cited by him from 4 Conn. R. 149, is certainly to that effect. But upon looking into that case, it will be seen that the rule is founded on the peculiar practice of that state, and that the court do not attempt to sustain the doctrine upon the common law practice of the courts in England. . I do not know what may be the practical operation of such a rule in Connecticut ; but with us, it seems to me, the effect of it would be to put it in the power of a defendant to determine when a suit shall be considered as commenced against him. Besides, the doctrine contended for, by the defendant’s counsel, would effectually prevent attorneys from exercising any courtesies to defendants ; and compel them, for the protection of their clients, against unexpected set-offs, to put every writ in the hands of the sheriff, at once. If the note in question, was procured by the defendant, for the purpose of being set-off, after he had promised to give an appearance upon the writ, it was a fraud on the plaintiff’s attorney, and a poor return for the comity, he had exercised towards the defendant.

Upon the whole, I am of opinion, the rule to show cause, ought to be discharged, with costs; and that the opinion of this court, to that effect, should be certified to the Circuit Court, for the county of Essex, pursuant to the statute.

Rule-discharged, and certificate to Circuit Court, to that effect.

Cited in Updike v. Ten Broeck, 3 Vr. 108 — 122.  