Motion to dissolve injunction, This was a creditor’s suit. The bill was filed on the 8th of January, 1840, and an injunction and subpoena issued at the same time, but not served until the 10th. On the 9th of January, intermediate the issuing and service of the subpoena, the judgment debtor made a general assignment of his pror perty to the defendants in this suit. The question was what is to be deemed the commencement of a suit, or a lis pendens, in this court, so as to affect the validity of a transfer of the subject matter of the litigation, as a purchase pendente lite.
The chancellor observed that the filing of a bill and taking out a subpoena thereon, and making a bona fide attempt to serve it without delay, might be considered as the commencement of a suit for the purpose of saving the statute of limitations, if the suit is afterwards prosecuted with due diligence. And that 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. But he decided that the mere issuing of a subpoena is not the commencement of a Us pen-dens, as to a stranger to the suit.
That to charge a stranger, having no actual notice, with constructive notice of the pendency of the suit, and subject him to the consequences of a purchase pendente lite, it is necessary that the bill be filed and the subpoena actually served.
But that a personal service of the subpoena upon the defendant is not necessary to create a lis pendens where he has a known residence in this state.
That 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 bill cannot be taken as confessed against him on such a service, without instituting further proceedings to compel his appearance.
That where the defendant is proceeded against under the statute as an absentee, the actual publication of the notice for him to appear would probably be considered as equivalent to a service at his place of residence, in creating a Us pendens.
Injunction dissolved.