Fitch v. Smith

10 Paige Ch. 9

Opinion

The Chancellor.

The complainants in both of these cases sent their bills to the clerk’s office at the same time 5 neither being aware of the fact that the other was about to commence a suit against the same defendant for a similar purpose. But owing to a mistake the deputy clerk who acted as the appellant’s agent, filed the bill immediately, and without applying to the vice chancellor for an injunction thereon ; in consequence of which mistake that bill got on to the files of the court two hours before the respondent’s bill. And if the filing of the bill, before taking out and serving a subpoena or making a bona fide attempt to serve it, was the commencement of a suit in this court, the appellant would have obtained a preference in payment out of thg property of the defendant, in consequence of this'mistake of the deputy clerk. The filing of the bill, however, is not the commencement of the suit; although by statute the bill must now be filed before any process for the appearance of the defendant can be issued. (2 R. S. 179, § 70, 76.) It is true, in common parlance, we use the expression “filing of the bill” to denote the commencement of a suit in chancery ; instead of referring to the issuing and service of the subpoena, or the making of abona fide attempt to serve it, after the bill has been filed, which is the actual commencement of the suit in this court. (Webb v. Pell, 1 Paige’s Rep. 564. 1 Dan. Ch. Prac. 554.)

Here, as I understand the affidavit of the appellant’s solicitor, no subpoena was attempted to be served, or was even issued, until the solicitor received the injunction from Rochester, which was more than a week after the injunction and subpoena in the respondent’s suit had been actually served upon the defendant.

The decision of the vice chancellor is therefore clearly right j and the order appealed from must be affirmed with costs.