The Judge charged the jury, that the suit must be considered as commenced, when Skinner started to deliver the writ to the Coroner; after he had determined absolutely to issue it ; and not from' the time when he first took it from the office, without any certain intention of delivering it.
*161If the law was correctly laid down, there is no ground for disturbing the verdict on the question of fact. From the evidence, it is somewhat, doubtful whether Wait was out of the limits when the agent determined to deliver the writ, and went in pursuit of the officer.
The delivery of a writ to the wife of a Coroner is a sufficient commencement of an action against the Sheriff. (Bronson v. Earl, 17 John. 63.) In that case, however, it appeared that the writ was put into the hands of a person to be delivered to the Coroner to be served, at such time as, the prisoner should be found to have left the jail limits. There was no evidence of an absolute intention to deliver the writ before the time of its actual delivery, so that the question in this cause did not come under consideration. In Burdick v. Green, (18 John. 14,) it was held that the issumg of the writ is the commencement of the suit, in all cases where the time is material; as to save the statute of limitations. By this general proposition, it is not intended that the mere filling up of the process is such commencement. The same case explains the rule; that it is not necessary to show the writ was actually delivered, to the Sheriff; but 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. The same doctrine is recognized in Vischer v. Gansevoort, (18 John. 496.) These cases decide the law applicable to the case under consideration.
Skinner testified that he was a clerk in the office of the plaintiff’s attorney; that the writ had been filled up some time previous, and left with him to be issued when he could ascertain that Wait was.off the limits. There was not, then, an absolute intention, that the writ should be delivered to the Coroner in the first instance. It was committed to Skinner to. exercise his discretion: he became satisfied about 9 o’clock that Wait was off the limits; and then made up his mind to deliver it to the Coroner, which was done a half hour afterwards. Skinner was merely an agent or messenger, with power from the plaintiff to decide on the time when to deliver the writ. It does not appear that he had any other *162authority. It was not competent, therefore, for him to de c¡¿e from what time the suit should be considered as commenced. In Vischer v. Gansevoort, it was decided, that the messenger or bearer of the writ has not the power to decide whether the suit shall be commenced by any event subsequent to the delivery of the writ to him, short of its being actually put into the hands, or left at the office of the Coroner. It follows, then, conclusively, that the determination of Skinner to deliver the writ, absolutely, is of no avail; and the suit was not commenced until the actual delivery to the Coroner.
The Judge, therefore, erred in supposing that the decision of Skinner to deliver the writ, was the test. He ought to have charged the jury that, on the facts, the suit was not commenced in judgment of law until the Coroner received the writ. The consequence is, that the plaintiff is entitled to a new trial, with costs, to abide the event.
Sutherland, J.The suit cannot be considered as having been commenced, until the actual delivery of the writ to the Coroner. When the witness, Skinner, who was the clerk of the plaintiff’s attorney, left the office with the writ, he had no absolute intention of delivering it to the Coroner. He states that he took it with an intention of delivering it to the Coroner, if he could be satisfied Wait was off the limits, but not otherwise. That afterwards, he made up his mind to deliver it to the Coroner, as he learned sufficient to satisfy him he ought to issue the writ; and he went immediately in pursuit of the Coroner, for the purpose of delivering it to him, but it was about half an hour before he found him.
The clerk is to be considered as the agent or messenger of the attorney, and as acting in obedience to his orders when he took the writ and left the office with it. That his instructions had been given to him at some previous time, and not at the precise moment when he left the office, can not vary the case. He left the office, then, with instructions to deliver the writ, if Wait was beyond the limits. This case is, then, precisely within that of Vischer v. Gansevoort, in which the Court say, “ when the attorney issued the writ, *163the intention to commence the suit was not absolute, positive and unequivocal; and we can not admit, that the messenger or bearer of the writ, shall havq it in his power to decide, whether the suit shall be commenced by any event subsequent to the delivery of the writ to him, short of its being actually put into the hands, or left at the office of the Coroner.”
The Judge, therefore, erred in charging the jury that the suit must be considered as commenced, “ when the clerk started to deliver the writ to the Coroner, after he had determined absolutely to issue it.”
The execution having been tested in the name of Ch. J. Kent, instead of Ch. J. Thompson, did not render it void. It was amendable, and the Sheriff could not avail himself of the irregularity.
Savage, Ch. J. concurred.
New trial granted, with costs to abide the event.