Carpenter v. Butterfield. It appeared that the under sheriff went to the house of the defendant, for the purpose of arresting him on the writ, issued in this cause, and found the door shut, and was informed by the defendant, who knew the sheriff had the writ, and had come to arrest him, that he would not suffer [*146] himself to be arrested, until he could procure a *negotiable note, then in the hands of Dickson, to be endorsed to him, which he intended to purchase as a set-off' against the plaintiff's demand, and that as soon as he could have the endorsement made, he would submit to an arrest, and give bail. The sheriff went away, and the defendant afterwards procured the note to be endorsed to him, and gave bail in this cause. On this evidence, the judge refused to admit the set-off, and a verdict was found for the plaintiff. A motion was made to set aside the verdict, and for a new trial, on the ground of the misdirection of the judge. Woodworth, for the defendant. Champlin, contra. THOMPSON, J. The question submitted to the determination of the court, in this cause, is whether a promissory note, purchased by the defendant, and endorsed by him, after the issuing of the writ, and before the return thereof, may be set off, under a plea of payment, against the plaintiff's demand. I consider the issuing of the writ in a cause, as to every material purpose whatever, the commencement of the action.(a) (a) The Revised Statutes of New York, (3d ed. vol. 2, p. 440, § 1,) provides that the issuing and service of a capias ad resp. shall be the commencement of a suit, except where it is issued to save the statutes of limitation. (id. p. 397, § 38.) See Johnson v. Comstock, (6 Hill, 10.) It is not however understood, that any change in the previous law upon this subject, was designed in the revision of the statutes, and that the issuing of a capias is the commencement of a suit. Mr. Graham remarks, (1 Grah. Prac. 3d ed. 502,)" according to all the cases before the adoption of the revised statutes, the suing out of the capias was deemed the commencement of the suit. (Carpenter v. Butterfield, 3 Johns. Cas. 145. Lowry v. Lawrence, 1 Caines, 69. Bird v. Caritat, 2 Johns. Rep. 342. Cheetham v. Lewis, 3 Johns. Rep. 42. Burdick v. Green, 18 Johns. 14. Ross v. Luther, 4 Cowen, 158. Ho Carpenter v. Butterfield. The statute authorizing a set-off declares, that if two or more persons, dealing together, be indebted to each other, gan v. Cuyler, 8 Cowen, 203; see also, Patterson v. Parker, 2 Hill, 598.) But in a late case, Bronson, J. said, that it was no longer the general rule, that the suit was commenced when the writ was delivered to the sheriff, but that service, as well as the issuing of the capias, was now necessary to the commencement of a suit, except where the question was upon the statute of limitations. (Johnson v. Comstock, 6 Hill, 11, 12.) This observation has been, however, more recently regarded by this court, in a case, for a note of which I am indebted to Mr. Hill, as a mere dictum, and has been overruled, on the ground, that the revised statutes, (2 R. S. 347, sec. 1,) had not made any change in the former rule in this respect, as it is above stated. (Dexter v. Adams, MS. Jan. term, 1845.) By the suing out of the capias, is not meant, merely, filling up the writ, although it is unnecessary, except, in actions for penalties or forfeitures, (2 R. S. sec. 6,) to show that it was actually delivered to the sheriff: it is sufficient, if it appear, that the writ was made out, and sent to the sheriff or his deputy, by mail or otherwise, with a bona fide, absolute, and unequivocal intention of having it served. (Ross v. Luther, 4 Cowen, 161. Visscher v. Gansevoort, 18 Johns. 496. Burdick v. Green, 18 Johns. 14.)" See Grah. Prac. 2d ed. p. 103, 113. Burrill's Prac. 2d ed. vol. 1, p. 97. The general rule in the United States is, that the issuing or suing out of the writ, is the commencement of the action; (Lowry v. Lawrence, 1 Caines, 69. Bryce v. Morgan, 3 Caines, 133. Bird v. Caritat, 2 Johns. 342. Cheetham v. Lewis, 3 Johns. 42. Fowler v. Sharp, 15 Johns. 326. Ross v. Luther, 4 Cow. 158. Hogan v. Cuyler, 8 Cow. 203. Parker v. Colcord, 2 N. Hamp. 36. Society, &c v. Whitcomb, ib. 227. Ford v. Phillips, 1 Pick. 202. Reed v. Brewer, Peck, 276. Thompson v. Bell, 6 Monr. 560. Day v. Lamb, 7 Verm. 426. Cox v. Cooper, 3 Ala. 256. See Chiles v. Jones, 7 Dana, 545. Whitaker v. Turnbull, 3 Harr. 172. Feazle v. Simpson, 1 Scammon, 30. Swift v. Crocker, 21 Pickering, 241. Bunker v. Shed, 8 Metcalf, 150. Swisher v. Swisher, Wright, 755. Caldwell v. Heitshu, 9 Watts & Sergeant, 51 ;) but in Connecticut, service of the writ is also required. (Clark v. Helms, 1 Root, 487. Jencks v. Phelps, 4 Connecticut, 149. Spalding v. Butts, 6 Connecticut, 30. Gates v. Bushnell, 9 Connecticut, 530.) By the Code of Procedure of the State of New York, 106, 112, 113, 114, civil actions in the courts of record in this state, shall be commenced by the service of a summons. The summons may be served by the sheriff of the county, where the defendant may be found, or by any other person, not a party to the action. The service shall be made, and the summons returned, with proof of the service, to the person whose name is subscribed thereto, with all reasonable diligence. The person VOL. III. 24 Carpenter v. Butterfield. and one sue the other, the defendant may set off his demand, c. On a fair and reasonable interpretation of the part of the statute, it would seem, that the debt or demand, which subscribing the summons may, at his option, by an endorsement on the summons, fix the time, for the service thereof, and the service shall then be made accordingly. The summons shall be served by delivering a copy thereof, as follows: 1. If the suit be against a corporation, to the president, or other head of the corporation, secretary, cashier, or managing agent thereof: 2. If against a minor, under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian, or if there be none within the state, then to any person having the care and control of such minor; or with whom he shall reside, or in whose service he shall be employed: 3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, in consequence of habitual drunkenness, and for whom a committee has been appointed, to the committee; and to the defendant personally: 4. In all other cases, to the defendant personally. When the person on whom the service is to be made, cannot after, due dili gence be found within the state, and that fact shall appear by affidavit to the satisfaction of the court, or a judge thereof; and it shall in like manner appear that a cause of action exists against the defendant, in respect to whom the service is to be made, and that such defendant, is a resident of this state, or has property therein; such court or judge may grant an order, that the service be made by the publication of the summons in two newspapers, which the judge may designate, as most likely to give notice to the person to be served, and for such length of time, not less than thirty days, as the judge shall deem reasonable. In case of publication, the judge shall also direct a copy of the summons to be forthwith deposited in the post office, directed to the person to be served, at his place of residence, unless it appear to the judge that such residence is neither kuown to the party making the application, nor can with reasonable diligence be ascertained by him. Personal service of the summons out of the state, shall be equivalent to publication, and deposit in the post office. The provision of the Code in reference to commencing actions to save the statute of limitations is as follows: An action shall not be deemed commenced, within the meaning of this title, unless it appear: 1. That the summons or other process therein was duly served upon the defendants, or one of them; or 2. That the summons was delivered, with the intent that it should be actually served, to the sheriff of the county in which the defendants, or one of them, usually or last resided; or if a corporation be defendant, to the sheriff of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. (Code Proc. § 79.) Carpenter v. Butterfield. the defendant can set off, must be an existing demand, in the defendant, at the time when the plaintiff's suit is commenced. In the present case, the note was purchased by the defendant, after he knew the writ was in the hands of the sheriff, and an attempt had been made to serve it, and he purchased the note for the "express purpose of [*147] setting it off against the plaintiff's demand. It was an act, therefore, not done in good faith, and ought not to be tolerated farther than the strict rules of law will require. The plaintiff, when he commenced his suit, had a good cause of action, and a legal and undeniable right to recover, and to suffer the defendant to defeat that right, by any subsequent collateral demand, would subject the plaintiff to the payment of costs, for doing an act which he had a legal right to do. If the plaintiff should, by his own act, after the commencement of the suit, furnish the defendant with a good defence, he may plead it puis darrein continuance. Though it would defeat the recovery, and subject the plaintiff to the payment of costs, yet that would be a damage arising from his own act, pending the suit, and knowing, at the same time, that it might affect that particular action. As if he should give a release or discharge, or accept a direct payment of his demand. A plaintiff cannot give in evidence, a demand arising after the commencement of his suit. Pleas of set off are in the nature of cross actions. Wherever there is a plea of payment, the time alleged, in all the precedents of the books, and 1 believe, in universal practice, is, "that before the exhibition of the bill, or commencement of the suit, the defendant paid," &c. If the defendant, on the trial, should offer in evidence, a demand that accrued after the time laid in his plea, it would, in my opinion, be inadmissible; because, the judgment could not be pleaded in bar to an action afterwards commenced, for the same demand, as it would appear to have originated after the day laid in the record. No possible injury can result to the defendant from adopting, Carpenter v. Butterfield. as the general rule on this subject, the one that I have laid down. He does not lose his demand; and in the case now before the court, it is stated that the defendant paid a full and valuable consideration for this note; he, therefore, could have had no other object in view, than to subject the [148] plaintiff to the payment of costs. *It appears to me, that to adopt the rule contended for by the defendant's counsel, would greatly embarrass the circulation of this species of paper, as it would be unsafe for any man to commence an action against another, while he had any paper afloat that would become due, at any time before it should. be necessary for the defendant to plead. If the defendant could, in any way, have availed himself of this note, as a set-off, he ought to have laid a day in the plea, subsequent to the time when the note was endorsed to him; and such a plea, on demurrer, would have been bad. The case of Evans v. Prosser (3 Term Rep. 186,) is in point, and decides the whole question. In that case, one of the pleas was, "that the plaintiff, at the time of the plea pleaded, was indebted," &c. and, on demurrer, the court determined that the plea was bad; that it ought to allege that the plaintiff, at the commencement of the suit, was indebted, &c. In that case, Mr. Justice Buller takes notice of the case of Reynolds v. Burling, (Doug. 112, note,) in which it was said, that actio non goes to the time of plea pleaded, and not to the commencement of the suit, and denies that such a doctrine is maintainable. The judgment of the court in Evans v. Prosser, clearly overrules the decision in Reynolds v. Burling, and also in Sullivan v. Montague, (Doug. 106,) so far as that case bears on the present question, and must, in my judgment, be considered as overturning all prior cases which appear to countenance a contrary doctrine. It may be said that the statute of set-off ought to receive a liberal construction, because it tends to prevent multiplicity of suits: the argument has weight. Still it is to be observed, that it is |