p. 210being informed by an agent of the plaintiff that he suspeete(j Curtiss was off the limits, made out a writ against the sheriff, took it in his pocket and went into the street with the intention, if he should find Curtiss off the limits, to deliver or send the writ to the coroner. He saw Curtiss off the limits, and while he was so off, he, the attorney, delivered the writ to a cartman, and directed him to take it immediately to the coroner. The cartman drove as fast as he conveniently could to the house of the coroner and delivered the writ to him, but from the evidence, it is manifest that before the writ came to the hands of the coroner Curtiss had returned to the limits. The counsel for the defendant insisted that the filling out the writ, and not the delivery of it to a cartman to be carried to a coroner, was the issuing thereof, and the commencement of the suit; and if so, as there was no proof that Curtiss was off the limits at the time of the filling out of the writ, it was issued prematurely, and defendant was entitled to a verdict. The judge charged the jury that it was immaterial whether Curtiss was off or upon the limits when the writ was made out by the attorney; whether an escape had then happened, was a matter of no consequence. That if they believed that he was off the limits when the writ was given by the attorney to the cart-man to be delivered to the coroner, and that the writ was given to the cartman with the bona fide and absolute intention to have him carry it to the coroner immediately, to be served, that was the commencement of the suit, and the plaintiff was entitled to recover, although the writ was made out before the escape happened, and was not delivered to the coroner until the prisoner had returned to the limits. The jury found for the plaintiff. The defendant moved for a new trial.
E. Williams, for the defendant,
insisted that as the writ was made out to be used according to circumstances,the suit could not be considered as commenced until the writ was actually put into the hands of the coroner, or left at his office ; that until such delivery, it was in the hands of one or other of the agents of the plaintiff; and as it was manifest that when the writ came to the hands of the coroner the prisoner had return
p. 211ed to the limits, the plaintiff was not entiled to recover. 3 Johns. C. 145. 18 Johns. R. 20. Idem. 497.
A. L. Jordan.
Within the scope of the authorities cited on the other side, the writ was issued in this case at the moment when the attorney put it in motion towards the coroner with a present intention and unconditional determination to have it delivered to him.
By the Court,
The charge of the judge was correct. The suit was not commenced—the writ was not in judgment of law issued until it was delivered by Jordan, the attorney, to Poultney, the cartman, to be carried by him to the coroner. It was sent to the coroner wil/i the absolute and bona fide intention of having it served. The agent Poultney was vested with no discretion; his instructions were absolute and unconditional, to deliver the writ immediately to the coroner. When the writ was put in the hands of Poultney with such instructions, the suit was commenced, and not before. The jury have found that the prisoner was at that time off of the limits. As long as the writ remained in the hands of Jordan, the attorney, without any absolute and unqualified intention of delivering it to the sheriff, it had no more efficacy than though it had not been filled up. When Jordan left his office with the writ he had no absolute intention of delivering it to the coroner; it depended upon the contingency of his ascertaining that the prisoner had escaped, and was then off the limits. The writ was not on its way to the coroner, in judgment of law, until it was delivered to Poultney. The cases of Burdick v. Green, 18 Johns. R. 14, and Visscher v. Gansevoort, 18 Johns. R. 496, are precisely in point, and perfectly decisive of this case. The same doctrine has been held in many subsequent cases.
Motion for new trial denied.