23. The word return, as applied to an absent debtcrr, applies as well to foreigners, or residents out of the state coming to the state, as te citizens of the state who have gone abroad aud have returned. 3 Johns. N. Y. 267 ; 11 Pick. Mass. 36. And in order to set the statute in motion the return must be open, public, and such and under such circum stances as will give a party, who exercises ordinary diligence. an opportunity to bring his action. 10 Johns. N. Y. 264 ; 1 Pick. Mass. 263 ; 3 Gill & J. Md. 158. Such a return, though temporary, will be sufficient. 8 Cranch, U. S. 179. But if the return is such and under such circumstances as to show that the party does not intend that his creditor shall take advantage of his presence, or such, in fact, that ha cannot without extraordinary vigi lance avail himself of it,-if it is secret, con lealed, or clandestine,-it. is insufficient. The absence of one of several joint-plaintiffs does not prevent the running.of the statute, 4 Term, 516; but the absence of one of seve ral joint-defendants does. 29 Eng. L. & Eq. 271. This at least seems to be the settled law of England; but the cases in the several states of the Union are conflicting upon these points.
24. Commencement of process. The ques tion sometimes arises as to what constitutes the bringing an action or the commencement of process, and this is very uniformly held to be ithe delivery or transmission by mail in due course of the writ or process to the sheriff in good faith, for service. 18 Johns. N. Y. 14; 14 Wend. N. Y. 649; 1 Paige, Ch. N. Y. 564. In Connecticut, the actual service of the writ is held to be the commencement of the action, 17 Conn. 213: in Arkansas, the issuance of the writ, 5 Eng. Ark. 479 ; in Vermont, the taking out of the writ, if it be served in time for the next court to which it is returnable.
1 N. Chipm. Vt. 94. The date of the writ is prima facie evidence of th e time of its issuance. 17 Pick. Mass. 407; 7 Me. 370.
25. If the writ or process seasonably issued fail of a sufficient service or return by any unavoidable accident, or by any default or neglect of the officer to whom it is com mitted, or is abated, or the action is otherwise avoided by the death of any party thereto, or for any matter of form, or judgment for plain tiff be arrested or reversed, the plaintiff may commence a new action within a reasonable time; and that reasonable time is usually fixed by the statute at one year, and by the courts in the absence of statutory provision, at the same period. 10 Wend. N. Y. 276. Irre gularity of the mail is an inevitable accident within the meaning of the statute. 8 Me. 497. And so is a failure of service by reason of the removal of the defendant, without the know ledge of the plaintiff, from the county in which he had resided and to which the writ was seasonably sent. 12 Mete. Mass. 15.
But a mistake of the attorney as to time of the sitting of the court, and consequent fail ure to enter, is not. 29 Me. 458. An abate ment by the marriage of the female nlaintiff is no abaterhent within the statute ; it is rather a voluntary abandonment. 8 Cranch, 84. And so, generally, of any act of the party or his attorney whereby the suit is abated or the action fails. 3 M'Cord, So. C. 452 ; 2it Me. 458 ; 1 Mich. 252 ; 6 Cush. Mass. 417.
26. A nonsuit is in some states held to be within the equity of the statute, 13 Ired., No. C. 123 ; 4 Ohio St. 172 ; 12 La. Ann. 672; but generally otherwise. 1 Serg. & R. Penn. 236 ; 3 M'Cord, So. C. 452 ; 3 Harr. N. J. 269. If there are two defendants, and by reason of a failure of service upon one an alias writ is taken out, this is no continuance, but a new aztion, and the statute is a bar. 6 Watts, Penn. 528. So of amending bill introducing new parties. 6 Pet. 61. A dismissal of the action because of the clerk's omission to sea sonably enter it on the docket is for matter of form, 7 Gray, Mass. 165 ; and so is a dis missal for want of jurisdiction, where the action is brought in the wrong county. / Gray, Mass. 580. In Maine, however, a. wrong venue is not matter of form. 38 Me. 217. The statute is a bar to an action at law after a dismissal from chancery for want of jurisdiction. 16 Wend. N. Y. 572 ; 1 Atk. Ch. 1 ; 2 Munf. Va. 181 ; 18 Ala. N. s. 307.
27. Lex fori governs. Questions under the statute are to be decided by the law of the place where the action is brought, and not by tha law of the place.where the contract is made or the wrong done. If the statute has run against a claim in one state, the rem edy is gone, but the right is not extinguished ; and therefore the right may be enfbrced in another state where the remedy is still open, the time limited by the statute not having ex pired. 15 East, 439; 2 Mas. C. C. 159 ; 9 How. 407 ; 11 Pick. Mass. 36. So 'if the statute of the place of the contract is still unexpired, yet an action brought in another place is governed by the lex fori, and may be barred. 1 Caines, N. Y. 402. But statutes giving title by adverse possession are to be distinguished from statutes of limitation., Adverse possession gives title; lapse of time bars the remedy only. And a right acquired by adverse possession in the place where the adverse possession is had is good elsewhere., 11 Wheat. 361 ; 9 How. 407 ; 5 Ala. N. s. 108; 16 Ark. 384.