
    Hayden, receiver, &c. vs. Bucklin & Brown.
    A soi vico of the subpoena upon the defendant, subsequent to the filing of the complainant’s bill, is necessary to create a lis pendens as against a bona fide purchaser of the subject matter of the litigation, in the court of chancory, who has not actual notice of the suit.
    But the filing of the bill, and taking out a subpoena and making a bona fide attempt to serve it, is the commencement of the suit as against the defend, ant himself, so as to prevent the operation of the statute of limitations, if the suit is afterwards prosecuted with due diligence.
    And it seems that such a commencement of a suit by a judgment creditor is sufficient to giv^ the complainant in such suit a preference over the complainant in a similar suit afterwards commenced by another judgment credi. tor of the defendant.
    Personal service of the subpoena is not necessary to create a lis pendens which is constructive notice to third persons of the commencement of a suit in chancery; and where the subpoena cannot be served personally, a service upon the defendant’s wife, or other member of his family of suitable age and discretion, at the defendant’s place of residence, will be sufficient.
    And where the defendant is proceeded against as an absentee, under the statute, it seems that the actual publication of a notice of the order for him to appear and answer the complainant’s bill, is equivalent to a service of the subpcena at the defendant’s residence, in creating a lis pendens.
    
    April 5.
    This was an application to dissolve an injunction upon the bill and answer, and a stipulation of the solicitors of the parties containing an admission of the facts in the case. Several creditors of L. W. Patten having recovered judgments against him and having their executions returned unsatisfied, filed separate bills against him to reach his equitable interests and choses in action, &c. These bills were filed in the afternoon of the 8th of January, 1840, in the register’s office at Albany, and injunctions and subpeenas were duly issued at the same time, and were served upon Patten at his residence, about 80 miles from Albany, on- the 10th of the same month. On the 9th of January, intermediate the issuing and service of the subpeenas, Patten made a' general assignment of all his personal property, debts, and choses in action to the defendants in this suit, to secure them for the amount of three notes, of about $1100, which they, at the time of such assignment, gave to E. Corning & Co. in payment of a debt due to the latter from Patten, and to secure them for other liabilities for him, and in trust for the payment of other creditors in the order- of priority specified in such assignment. The receiver who had been appointed in the creditors’ suits, and to whom Patten had subsequently made a general assignment under the order of the court, insisted that Bucklin & Brown, having taken their assignment subsequent to the filing of the bills and issuing the subpeenas in those suits, were to be considered as purchasers of the property pendente lite; and that he was therefore entitled to the assigned property as such receiver.
    
      S. Beardsley O. B. Matteson, for the receiver.
    
      
      W. Crafts, for the defendants Bucklin and Brown.
   The Chancellob.

There is no dispute in relation to the bona fide nature of the transaction between Patten and his assignees. Although the assignor may have anticipated the filing of creditors’ bills against him, assoon as the executions, which were issued on the sixth of January, could be returned unsatisfied, it appears to be impossible that when he made the assignment on the 9th of January at Winfield, he should have known that bills had been actually filed and subpoenas issued thereon at Albany, 80 miles distant, on the afternoon of the preceding day. And both of the defendants in this suit deny that they had any notice of the filing of the bills, or of the issuing of the subpoenas in the suits against Patten, at the time of the assignment to them. Nor did they suspect or believe at that time that any such proceedings had been instituted. The only question for consideration therefore is, whether the mere issuing of the subpoena is to be deemed a lis pendens in this court, so as to affect the validity of a transfer of the subject matter of the litigation here, as a purchase pendente lite.

Previous to the statute of Anne, (4 Anne, ch. 16, § 22,) it was not necessary to file the complainant’s bill before the issuing and service of the subpoena to appear and answer ; but it was sufficient if the bill was filed afterwards. And the suit, as against the defendant himself, was then considered as commenced from the teste of the subpoena, as in the case of suits at law commenced by original writs. Such appears to have been the decision of Lord Nottingham, in the case of Pigott v. Jfower, in 1677, which is copied by Mr. Swanston from his lordship’s manuscript notes. (3 Swans. Rep. 536.) And at the present day the filing of a bill and taking out a subpoena thereon, and making a bona fide attempt to serve it without delay, may be considered as the commencement of the suit for the purpose of preventing the operation of the statute of limitations; if the suit is afterwards prosecuted with due and reasonable diligence. (Webb v. Pell, 1 Paige’s Rep. 564.) Probably such a commencement of a suit would also be sufficient to give the complainant in a creditor’s bill a preference over a similar suit subsequently commenced against the same defendant, although the subpoena in the last suit should be first served; as in the case of the suing out of two original writs, against the heir at law, by different specialty creditors of the ancestor. (See Gree v. Oliver, 4 Bac. Abr. tit. Heir and Ancestor, F.; Burgh v. Francis, Cases Temp. Finch, 29.) But even before the statute of Anne, the mere issuing of a subpoena was not considered the commencement of a lis pendens, as to a stranger to the suit. But to charge him with constructive notice of the pendency of the suit, and subject him to the consequences of a purchase pendente lite, it was necessary that the bill should be filed and the subpoena served. (Anon. 1 Vern. Rep. 319.) And Sir Edward Sugden, the late chancllor of Ireland, in the recent edition of his valuable work on the law of vendors and purchasers, (3 Sug. Law of Vend. 458,) after stating the general principle that a lis pendens is of itself notice to a purchaser, says: c< A subpoena served is not, however, a sufficient lis pendens unless a bill be filed; but when the bill is filed the lis pendens begins from the service of the subpoena.” (See also Moor v. Welsh Copper Company, 1 Eq. Ca. Abr. 39, pi. 14.) This common law rule of requiring purchasers at their peril to take notice of the pendency of suits in courts of justice, for the recovery of the property they are about to purchase, although it is nearly impossible that they should actually know that such suits have been commenced, has always been considered a hard rule, and is by no means a favorite with the court of chancery even in England. (See Sorrell v. Carpenter, 2 Peer Wms. 483.) And in all the cases I have been able to find in the courts of this country, a service of the subpoena, as well as the issuing of the same, has been considered necessary to create a lis pendens, as against a purchaser who had no actual notice that he was purchasing property the title to which was in litigation.

Thus, in Murray v. Ballou, (1 John. Ch. Rep. 576,) Chancellor Kent says : “ The established rule is that a lispendens duly prosecuted, and not collusive, is notice to a purchaser so as to affect and bind his interest by the decree ; and the lis pendens begins from the service of the subpoena, after the bill is filed.” This last point, it is true, was not before him for consideration ; as the suit of Green v. Winter had been pending more than a year before the purchase by Ballou of a part of the subject matter of the litigation. But the dictum is still entitled to consideration as the opinion of a very distinguished equity judge. In the case of Lyle v. Bradford, (7 Mon. Rep. 116,) the court of appeals in Kentucky recognized the distinction between the commencement of a suit,by the mere issuing of process against the defendant therein, and the creation of a lis pen-dens which is to affect the rights of purchasers of the subject matter of the litigation in such suit. And in reference to the latter, Judge Ousley says : “ It is true that for some purposes there is said to be no lis pendens until after process is served; and we entertain no doubt as to the correctness of the assertion in reference to the rights of strangers.” So in Baldwin v. Love, (2 J. J. Marsh. Rep. 493,) where the complainant amended his bill, after answer, so as to subject other property to the payment of his demand, the same court decided that a purchaser of such property, before the defendant in the suit was duly notified of such amendment of the original bill, was not to be considered as a purchaser pendente lite. And in the case of Miller v. Kershaw & Connor, (1 Bailey’s Eq. Rep. 479,) the court of appeals of South Carolina decided that there was no lis pendens, as against a purchaser from the defendant in a chancery suit, until the service of the subpoena; and that an acceptance of service of the subpoena as of a day prior to the sale of the property, under a previous agreement to accept the service at that time, would not make the decree binding upon such property in the hands of the purchaser.

It may "be proper to observe, however, that a personal service of the subposna upon the defendant is not necessary to create a lis pendens where he has a known residence in this state. For in case of his absence from home the subpoena may be served at his residence, upon his wife or servant, or some other member of the family of suitable age and discretion •, although the complainant’s bill cannot be taken as confessed against him on such a service, without instituting further proceedings to compel his appearance. (Thomas v. The Earl of Jersey, 2 Myl. & Keen, 398. Smith v. Parke, 2 Paige’s Rep. 298. 1 Grant’s Pr. 125. 1 Jfewl. Pr. 75.) And where the defendant is proceeded against as an absentee under the statute, the actual publication of the notice of the order for him to appear and answer the complainant’s bill would probably be considered as equivalent to a service of the subpoena at the defendant’s place of residence, in creating a lis pendens.

In the case before me, the defendants cannot be considered as purchasers or assignees of the property of Patten pendente lite, so as to subject the assigned property to the claims of his creditors in the suits in which the receiver was appointed. And the injunction must, therefore, be dissolved.  