The word return, as applied to an absent debtor, applies as well to foreigners, or resi dents out of the state coming to the state, as to citizens of the state who have.gone abroad and have returned; Ruggles v. Keeler, 3 Johns. (N. Y.) 267, 3 Am. Dec. 482; Bulger v. Roche, 11 Pick. (Mass.) 36, 22 Am. Dec. 359 ; Crocker v. Arey, 3 R. I. 178. And in order to set the statute in motion the return must be open, public, and such and under such circumstances as will give a party, who exercises ordinary diligence, an opportunity to bring his action ; Byrne v. Crowninshield, 1 Pick. (Mass.) 263; Berrien v. Wright, 26 Barb. (N. Y.) 208; 24 Ont. App. Rep. 718; Steen v. Swadley, 126 Ala. 616, 28 South. 620; the creditor must at least take some steps from time to time to ascertain whether he can reach the debtor; Dukes v. Collins, 7 Houst. (Del.) 3, 30 Atl. 639.
Such a return, though temporary, will be sufficient; Faw v. Roberdeau, 3 Cra. (U. S.) 174, 2 L. Ed. 402 ; contra, Wilson v. Daggett, 88 Tex. 375, 31 S. W. 618, 53 Am. St. Rep. 766 ; nor will a stay of several weeks without the creditor's knowledge; Mazozon v. Foot, 1 Aik. (Vt.) 282, 15 Am. Dec. 679; nor a secret visit; Stewart v. Stewart, 152 Cal. 162, 92 Pac. 87, 14 Ann. Cas. 940. It has been held that there must be a return with an intention to reside; Lee v. McKoy, 118 N. C. 518, 24 S. E. 210.
But if the return is such and under such circumstances as to show that the party does not intend that his creditor shall take advan tage of his presence, or such, in fact, that he cannot without extraordinary vigilance avail himself of it,—if it is secret, concealed, or clandestine,—it is insufficient. The ab sence of one of several, joint-plaintiffs does not prevent the running of the statute; 4 Term 516; but the absence of one of several joint-defendants does ; 29 E. L. & Eq. 271. This at least seems to be the settled law of England ; but the cases in the several states are conflicting upon these points. See Bruce v. Flagg, 25 N. J. L. 219 ; Denny v. Smith, 18 N. Y. 567; Harlan's Heirs v. Seaton's Heirs, .18 B. Mon. (Ky.) 312 ; Seay v. Bacon, 4 Sneed (Tenn.) 99, 67 Am. Dee. 601. If a claimant beyond seas when the claim accrued returned to this country, the statute began to run and was not suspended by his depar ture to foreign parts ; Savage v. U. S., 23 Ct. Cl. 255.
Where the statute saves the right if the party is "out of the state," it runs only upon the return, and this applies to non-residents equally; Ruggles v. Keeler, 3 Johns. (N. Y.) 264, 3 Am. Dec. 482 ; followed in McCann v. Randall, 147 Mass. 81, 17 N. E. 75, 9 Am. St. Rep. 666; Van Schuyver v. Hartman, 1 Alas ka 431; contra, Murray v. Farrell, 2 Alaska 360; that it applies only to residents, see Huff v. Crawford, 88 Tex. 368, 30 S. W. 546,
31 S. W. 614, 53 Am. St. Rep. 763; Orr v. Wilmarth, 95 Mo. 212, 8 S. W. 258. See note in 25 L. R. A. (N. S.) 24.
Commencement of process. The question sometimes arises as to what constitutes the bringing an action or the commencement of process, and this is very uniformly held to be the delivery or transmission by mail in due course of the writ or process to the sher iff, in good faith, for service; Jackson v. Brooks, 14 Wend. (N. Y.) 649. The date of the writ is prima facie evidence of the time of its issuance ; Gardner v. Webber, 17 Pick. (Mass.) 407; Johnson v. Farwell, 7 Greenl. (Me.) 370, 22 Am. Dec: 203 ; but is by no means conclusive ; 2 Burr. 950 ; Badger v. Phinney, 15 Mass. 364, 8 Am. Dec. 105. The suit is not "brought" or "commenced" in a federal court, to stop the running of the statute, until there is a bona fide attempt to serve the process; U. S. v. Lumber Co., 80 Fed. 309.
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 commit ted, 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 Plaintiff he arrested or reversed, the plaintiff may, either by virtue of the statutory provi sion or by reason of an implied exception to the general rule, commence a new action within a reasonable time ; and that reason able time is usually fixed by the statute at one year, and by the courts in the absence of statutory provision at the same period ; 1 Ld. Raym. 434 ; Downing v. Lindsay, 2 Pa. 382; Huntington v. Brinckerhoff, 10 Wend. (N. Y.) 278. Irregularity of the mail is an inevitable accident within the meaning of the statute ; Jewett v. Greene, 8 Greenl. (Me.) 447. And so is a failure of service by reason of the removal of the defendant, without the knowledge of the plaintiff, from the county in which he had resided and to which the writ was seasonably sent ; Bullock v. Dean, 12 Mete. •(Mass.) 15. But a mistake of the attorney as to time of the sitting of the court, and consequent failure to enter, is not ; Packard v. Swallow, 29 Me. 458. The statute cannot be pleaded to an amended count when it contains only a restatement of the case as contained in the original counts ; Chicago & A. R. Co. v. Henneberry, 42 Ill. App. 126. The filing of a petition will bar the running of the statute, though stricken out because it does not contain the formal allegations required, where it was subse quently amended ; Howard v. Windom, 86 Tex. 560, 26 S. W. 483. In Pennsylvania a citation to an executor to file an account is equivalent to the commencement of process.