10 Paige Ch. 9 | New York Court of Chancery | 1842
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
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.