
    Robert P. Wiggin v. John Orser, Sheriff, &c.
    As a general rule, an action under the Code is not commenced until the actual service of the summons.
    The only exceptions are those created by §§ 99 and 136 of the Code. The first exception is confined to cases in which the statute of limitations is set up as a defence. The second, to actions against non-resident or absconding debtors, and foreign corporations.
    
      Hence, In an action against a sheriff for an escape, the voluntary return of the prisoner before the actual service of the summons, although after its delivery to the coroner, is a good defence.
    Judgment dismissing complaint, affirmed with costs.
    (Before Duek, Campbell and Hofeman, J.J.)
    December term, 1855.
    Appeal bytheplaintifffromajudgmentdismissingthecomplaint.
    The action was against the sheriff of the city and county of New York, for the escape of a judgment debtor, imprisoned under an execution upon a judgment in favor of the plaintiff. The complaint demanded judgment for $1,804.84, the amount of the execution.
    The defence was, the voluntary return of the debtor before the commencement of the action.
    The cause was tried before the Chief Justice and" a jury, in March, 1855.
    , It was proved on the part of the plaintiff, that early in the morning of the 25th of November, 1854, the debtor was seen out of the city and county, and the limits of the prison, and that during this time the summons against the defendant was in the hands of a coroner. It was also proved, however, that the summons was not served on the defendant until eleven o’clock, A. M., of that day, and it was admitted, that before that hour the debtor had returned, and was then within the limits.
    Upon this .evidence the counsel for the defendant moved for the dismissal of the complaint. The Chief Justice granted the motion, and the counsel for the plaintiff excepted to his decision.
    A motion for a new trial was made at Special Term, before Hoffman, J., who denied the motion, and delivered the following opinion:
    Hoffman, J.—The judgment debtor Cans was on the limits, under an execution against him, on the evening of the 24th of November; and between seven and eight o’clock on the morning of the 25th of November, he was found at Hoboken. During that day a summons was put into the hands of the coroner, with directions to serve it upon the sheriff. It was served at ten minutes before eleven in the forenoon of that day. It is conceded as part of the case, that the debtor had returned to the limits before the service of the summons on the sheriff, although after the delivery to the coroner.
    The defence of the sheriff is under the 82d section of the Revised Statutes, (vol. 2, p. 348 3 ed.,) that he may plead, before the commencement of the action, that the prisoner had voluntarily returned to the jail from which he had escaped, or had been retaken.
    It is not denied, that before the Revised Statutes, the delivery of a writ to the coroner would have been the commencement of a suit, to fix the sheriff for an escape. A clear intent to put the writ in motion to be delivered would have been sufficient; Boss v. Soubber, (4 Cow. 161,) and the cases cited settled this.
    It is, however, equally clear, that under the Revised Statutes, (2 R. S. 347, § 1,) a suit was not commenced so as to charge the sheriff, until service of the capias upon him, where the suit was thus instituted. {Carruth v. Church, 6 Barb. Sup. Ct. Rep. 504, and cases.)
    By the provisions of the Revised Statutes, (2 R. S. 299, § 38,) among those regulating the limitations of actions, it was enacted, that no action should be deemed to have been commenced, within the meaning of the chapter, unless it appeared, “ that the first process or proceedings, was duly served upon the defendant, or that a capias was issued within the time required by law to the sheriff of the county in which the defendant usually resided, or last resided, in good faith, and with intent actually to be served, and that such writ was duly returned.”
    It is obvious that this last clause formed an exception to the general rule prescribed by the statute, and was only in relation to the statute of limitation.
    The 99th section of the Code is framed upon the same principle as this provision of the statute, and in language quite similar.
    It .is part of the title of “ The time of commencing actions.”
    The 127th and 134th sections prescribe the manner of commencing such actions, and with certain exceptions require a personal service of the summons. The Code appears thus to coincide with the Revised Statutes.
    The case of Lee v. Averil, in this court, (1 Sand. S. Court Rep. 731,) goes far to recognize that this is the true construction of the Code.
    The motion to set aside the nonsuit must be denied, with ten dollars cost.
    
      J. M. Robertson, for the plaintiff,
    appellant, now insisted that the judgment dismissing the complaint was erroneous, and that it ought to be reversed, and a new trial be ordered, upon the ground that the action was sufficiently commenced within the meaning of the Code, so as to bind the sheriff, by the delivery of the summons to the coroner with directions to serve it. He argued, that the provision in section 99 of the Code is general, and that its effect is, that in all cases where the summons is actually served, the seryice relates back to the issuing of the summons, and makes that the commencement of the action. He cited Coles v. Kerr, 2 Sand. 660; and Gregory v. Weiner, 1 Code Reporter, 210.
    
      A. J. Yanderpoel, for the defendant,
    contended that section 99 of the Code only creates an exception from the general rule, that an action is not commenced until the service of the summons, and that “an attempt to commence an action” by the issuing of a sumtnons is only to be deemed equivalent to its actual commencement, when necessary to avoid the meaning of the Statute of Limitations.
   By the Court.

The 127th section of the Code, by declaring that civil actions shall be commenced by the service of a summons necessarily implies, that until such service the action cannot be held to be commenced. Actual service is, therefore, undoubtedly the general rule, and the only exceptions from this rule are those created by sections 99 and 135 ; that created by section 99 is applicable only where the commencement of the action is necessary to be shown in order to exclude a defence founded on the Statute of Limitations. It is for the sole purpose of repelling such a defence, that the attempt to commence an action by the delivery of a summons, with the intent that it shall be served, is deemed equivalent to a commencement by actual service. As to the exceptions created by section 135, it is not pretended, that they have any application to the case before us. They substitute publication for personal service, and are confined to actions against non-resident or absconding debtors and foreign corporations. Although prior to the adoption of the Revised Statutes, an action was held to be commenced by the mere issuing of process, it is certain that the Revised Statutes changed the law by substituting the rule of actual service, and we are clearly of opinion that it is this rule that the provisions of the Code adopt and confirm.

The complaint was therefore properly dismissed, and the judgment appealed from must be affirmed, with costs.  