
    The Madison County Bank vs. Keller.
    Though, in assumpsit, the copias was put into the sheriff’s hands within six years from the demand falling due, with intent to have it served, and was actually served before the return day; yet the defendant having been kept in ignorance of it by order of the plaintiff until the six years had expired, held, not sufficient to take the case out of the statute of limitations.
    Assumpsit, tried at the Madison circuit, in March, 1840, before Gridley, C. Judge. The caption of the declaration was of October, 1838. It contained the common money counts, under which the plaintiffs sought to recover the amount due on a promissory note made by the defendant, dated June 16th, 1832, and payable at ninety days.
    The defendant pleaded, non-assumpsit; also, actio non accrevit infra sex annos.
    
    To the second plea the plaintiffs replied, that the causes of action accrued July 1st, 1838; and that within six years after, viz. on the 1st Monday of July, 1838, they sued out a copias directed to the sheriff of Madison, where the defendant resided, intending in good faith that the same should be actually served; and that the same was, on the 3d Monday of October, 1838, duly returned, personally served, with the defendant’s appearance endorsed; that the parties appeared, and the plaintiffs exhibited their declaration, &c.
    Rejoinder, that said several causes of action did not accrue within six years next before the issuing of the said copias, &.c.
    At the trial the plaintiffs gave in evidence the above mentioned note, and also, a certified copy of the copias in this suit. The latter was tested the 1st Monday of July, 1838, and returnable on the 3d Monday of October following. It was returned with the defendant’s appearance endorsed, the endorsement being dated October 9th, 1838.
    It appeared in evidence, that the copias was delivered to a deputy sheriff on the 30th of August, 1838, (within six years from the time when the note fell due,) to be served; but with instructions not to serve it till October Isi, 1838, (after the six years,) and in the mean time to keep thenfact a secret, and not let the defendant know that the writ was issued'until the service.
    
    The defendant’s counsel insisted, and so the circuit judge ruled, that the delivery of the copias accompanied with the instructions mentioned, was not a sufficient commencement of the suit to prevent the statute of limitations from attaching. The plaintiffs were accordingly nonsuited, and now moved" for a new trial on a bill of exceptions.
    J. A. Spencer, for plaintiffs.
    
      H. C. Van Schaack B. D. Noxon, for defendant.
   By the Court,

Cowen, J.

The copias was delivered within the six years- with intent that it should be served before the next regular return day ; but with instructions to keep it a secret till after the six years had expired, which was done by the sheriff. The question is, whether this was a good commencement of the suit within the meaning of the 2 R. S. 227, 2d ed. § 38. That section declares that a suit shall not be deemed to have been so commenced as to avoid the statute of limitations, unless, 1. The process was duly served ; or 2. Unless it was issued within time to the proper county, &c. in good faith, and with intent to be actually served, &c. Section thirty-nine declares that, to an allegation that the suit was comménced in time, the defendant may answer on the trial by proving that the process was not issued with the intent, or in the manner required by law, or that any means whatever were used by the plaintiff or his attorney to prevent the service, or keep the defendant in ignorance of the issuing of the copias. Section forty declares, that upon any such matter being established, or upon its appearing in any other way that the process was’issued without any intent that it should be served, such process shall not be deemed the commencement of a suit.

In this case, the copias was issued within time, with intent to be served; and it was served and returned accordingly. This satisfies the first subdivision of the statute in its very words; and is enough for the plaintiffs, unless the qualifications in the 39th and 40th sections apply to such a case. These, in effect, are, that on any allegation of the plaintiff that he commenced a suit in season, it shall be a good defence that he or his attorney used any means whatever to prevent the service, or keep the defendant in ignorance that the copias had issued. The provision in terms covers every mode of commencing a suit, whether under the first or second subdivision.

It may be too severe, should we hold that instructions to delay service for any time short of the return day, shall be considered as using means to prevent service, when, as here, it was intended that it should be served before the return day; but the act goes to, any means for keeping the defendant in ignorance that it issued. This branch of the act would seem at least to require that means should not be used to keep back the service of the writ at all. A literal construction would go further, and require that no means of concealment should be used, even by way of stratagem, to insure an arrest. This would be a very absurd construction. But the clause may, and I think it does mean that no concealment shall be practised with a view to delay; but the sheriff shall be left to his own head, and so lie under the duty of disclosing the fact by actual service as soon as he can, consistently with his other avocations. In short, though the process be placed in his hands within time, yet, if by the procurement of the plaintiff or his attorney, the fact be kept concealed till after the six years have expired, the suit cannot he deemed to have been so commenced as to take the claim out of the statute. That is the case at bar.

My opinion is, therefore, that the motion to set aside the non-suit and for a new trial be denied.

Nelson, C. J.

dissented on the ground that §§ 39 and 40 .(2 R. S. 227,2d ed.) should be construed as not applying to any case where process was delivered to the officer in time, with intent to have it served, and where it has been actually served before the return day.

New trial denied. 
      
       In Massachusetts, if a writ is made provisionally and delivered to an officer with instructions not to serve it until after a certain time, or the happening of a certain event, the action is not deemed to have been commenced until the arrival of the time, or the happening of the event Thus, the plaintiff having put a writ of replevin into the hands of an officer, directing him to demand the property in question, before serving it, and the officer acted accordingly; held, that the suit was to be regarded as not commenced until after the demand. (Badger v. Phinney, 15 Mass. R. 359.) The same doctrine was applied where a writ against the endorser of a note was delivered to an officer, with instructions not to serve it until he had given the endorser notice of non-payment by the maker. (Seaver v. Lincoln, 21 Pick. 267. See also, Swift v. Crocker, id. 241, 2, 3.) These cases will be found in principle, at least, to agree with Walters f Farley v. Sykes and Harman, (23 Wend. 566.)
     