37. This section, as amended in 1858, does not authorize the filing of a notice against prior purchasers or incumbrancers who are not parties to the action. 38. Where, after the service of the summons, the plaintiff filed a notice of lis pendens, and on the next day filed his complaint; after the filing of the complaint, the premises were incumbered by mortgage; the objection was raised that the lis pendens and complaint were not filed at the same time,; it was decided that even if the filing of the lis pendens was of no avail until the complaint was filed, the very act of filing the complaint gave the lis pendens validity. 39. The object of the statute, in requiring the lis pendens and complaint to be filed together, is accomplished when the complaint is filed, no matter how long the lis pendens has been filed before. 40. If the incumbrance upon real estate were to go upon record after the lis pendens, but before the complaint were filed, another question would be raised. (See 38 ante and 41 post.) 41. A lis pendens filed before the service of the summons, becomes operative on such service. 42. The amendment to this section in 1858 places a purchaser whose deed is not recorded in the same condition as if he were a party to the foreclosure. 43. Until the summons is served upon a purchaser whose deed is not recorded, he is not affected by the notice of lis pendens. 43. Until the service of summons upon the grantor of a purchaser whose deed is not recorded, the purchaser is not included in the description of subsequent grantee. 44. Where the plaintiff has filed a a notice of pendency of the action, it is as effectual against any disposition of the property alleged to be held in trust for or in fraud of the rights of the plaintiff as an injunction would be. 45. A lis pendens is constructive notice to a purchaser from the defendant, and he and his interest will be bound by the decree entered in the suit. 46. The commencement of a suit in equity by the service of a summons and injunction, creates a lis pendens and a lien, in the nature of an attachment or a statute execution, upon the equitable property of the defendant. 47. In an action for foreclosure, commenced previous to the amendment of this section in 1862, a grantee of land was not charged with constructive notice of the commencement of the suit, although the lis pendens had been filed, unless the summons had been served on his grantor before the conveyance of the laud. 48. Where a plaintiff files a notice of lis pendens in an attachment suit affecting real estate, it is improper to include therein any real property which the sheriff has not levied upon under the attachment. 49. The notice of lis pendens, in an attachment suit affecting real estate, affects only those lands which the sheriff has attached, and is inoperative as to all other lands included therein. 50. (4 Q.) The court has no power to order a lis pendens, which is in proper form, and has been filed in an action in conformity with the provisions of the statute, to be taken from the files of the court. 51. Where an injunction had been granted, which restrained the defendants from disposing of the real estate sought to be charged by the action, and had afterwards been dissolved, on the defendants depositing in court a specific sum of money as security for the payment of any judgment the plaintiff might recover, the lis pendens will not be ordered to be taken from the files of the court, notwithstanding its continuance may defeat a contract for the sale of the real estate, which the defendant may have made after the injunction was dissolved. 52. A plaintiff may give actual notice of his claim to any person who contemplates purchasing, and he may give such a notice as the statute authorizes. 53. A subsequent incumbrancer who looks at the record is entitled to all the information which the parties to a mortgage can reasonably impart. 54. A subsequent incumbrancer who looks at the record is entitled to know the real amount of the debt which the mortgage is given to secure. 55. (5 Q.) The clerks of all the counties in the state are by law required to record, in books to be provided for that purpose, &c., all notices of pendency of suits filed in their offices, and have the same properly indexed, if paid the fee for recording the same by the person presenting them. § 133. Summons, by whom served. (Same as § 112 in 1848.) The summons may be served by the sheriff of the county where the defendant may be found, or by any other person not a party to the action. The service shall be made, and the summons returned, with proof of the service, to the person whose name is subscribed thereto, with all reasonable diligence. The person subscribing the summons, may, at his option, by an indorsement on the summons, fix a time for the service thereof and the service shall then be made accordingly. Questions. 1. Question. What is the effect of service of the summons by the plaintiff in the action! 2. Q. When will service of papers by a stranger, not an attorney, be irregular ? 1. Q. What is the effect of service of the summons by the plaintiff in the action? A. In Bennett agt. Fuller, 4 John. R., 485, General Term, August, 1809, it was decided by the COURT, that it seems that a sheriff who is plaintiff, may serve his own writ. The Court said: The question is. whether there has been a legal service of this writ. It appears, from some of the cases, (Cro. Car., 416; 19 Viner, 443; note; Moore, 547), to be a doubtful question, whether a sheriff can legally serve a writ where he is the plaintiff. In the present case, the writ was served by a deputy. No bail was reqired, and the sheriff returned the writ, and is responsible. As the practice of deputing the plaintiff to serve his own writ has been of long duratton, we think it would be going too far to say, that the plaintiff cannot, in any cause, serve a writ in his own favor. A dec laration in ejectment is always served by the party; and where the writ is served without exacting bail, there can be no oppression, and it is analogous to the service of a declaration in ejectment. As the defendant, however, appears to have been mistaken as to the service, and swears to merits, he ought to be let in to plead, on payment of costs. (Vide Davenport agt. Ferris, 6 Johns. Rep., 131.) In Tuttle agt. Hunt, 2 Cor., 436, Special Term, October, 1823, it was dicided by the COURT, that the plaintiff in a justice's court, may serve his own summons either where he is himself a constable or specially deputed for the purpose. In Putnam agt. Man, 3 Wend., 202, General Term, August, 1829, SUTHERLAND, J., it was decided, that a plaintiff who is a constable, may serve a summons in his own favor, issued by a justice of the peace; and his return cannot be impeached in an action of trespass for an arrest under an execution, issued on a judgment rendered on the retern of such summons. The Judge said: Two questions arise in this case: 1st. Whether a plaintiff, being a constable, can legally serve a summons in his own favor? 2d. Whether the return upon the summons can be impeached in this action? The first question was decided in the case of Tuttle agt. Hunt, (2 Cow., 436.) It was there held that a plaintiff in a justice's court might serve his own summons, either where he is himself a constable, or is especially deputed for the purpose, in analogy to the case of a capias, where no bail is required, which may be served by the sheriff when he is plaintiff, or by any other plaintiff by special deputation. (Bennet agt. Fuller, 4 Johns. R., 486.) I am inclined to think the constable's return upon the summons was not traversable in this action. The return, though false, gave the justice jurisdiction of the person of the defendant; for the act (statutes, vol. 6, 280 c. § 8), provides that the constable serving the summons shall, upon the oath of his office, return thereupon the time and manner of executing the same, and sign his name thereto; and in case the defendant does not appear at the time and place appointed in such summons, and it shall appear by the return indorsed thereon, that the summons was personally served, the justice shall then proceed, &c. The return of the constable is the evidence upon which the statute authorizes and requires the justice to proceed. He must, therefore, obtain jurisdiction of the defendant's person by virtue of the return; and the judgment which may be subsequently rendered will protect the magistrate, the party, and the officer who may be instrumental in enforcing it. The constable's return is conclusive against the defendant in the cause in which it is made. He cannot traverse the truth of it by a plea in abatement or otherwise; but if it be false, the defendant's remedy is in an action against the constable for a false return (Wheeler agt. Lampman, 14 Johns. R., 481; Pennington on Small Causes, 21, 2, 3; Cowen's Tr., 274, 5; Wilson agt. The Executors of Hunt 1 Peters, 441) The want of jurisdiction in a court rendering a judgment, may be shown collaterally whenever any benefit or protection is sought under the judgment. It renders the judgment coram non judice and void; and in case of a limited and special jurisdiction, the magistrate and all others concerned in enforcing the judgment, would be trespassers. (Bigelow agt. Stearns, 19 Johns. R., 39; 15 Johns. R., 121; Elliott agt. Pearsall and others, 1 Peter's U. S. Rep., 340.) But where the court has jurisdiction, and the proceedings are regular on the face of them, trespass will not lie. (1 Chitty's Pl., 184; Warner agt. Shed, 10 Johns. R., 138; 1 Wend. 126.) That the individual who made the false return was the plaintiff in the suit, cannot, that I perceive, alter the case. The party injured has a perfect remedy by an action for the false return; or, if the defendant acted wilfully and corruptly, he might probably be punished criminally, on an indictment for a misdemeanor. (Pennington, 21, 2; Cowen's Tr., 274.) In Myers agt. Overton, 2 Abb., 344, N. Y. Common Pleas, General Term, November, 1855, INGRAHAM, J., it was decided, that where a plaintiff made a personal service of the summons on the defendant, and the defendant not appearing or answering, the plaintiff made an affidavit of the service, and entered judgment,-it was held, that it was too late for the defendant, after payment, to move to set aside the proceedings; that the service of the summons by the plaintiff was a mere irregularity, of which, if the defendant desired to avail himself, he should have moved promptly, and before judgment, to set aside the service. The Judge said: The summons and complaint in this cause were served by the plaintiff upon the defendant. The defendant did not appear therein, and a judgment by default was entered against him on an affidavit of service made by the plaintiff on January 15, 1855. The defendant moved to set aside the judgment on an affi davit in which he admitted the service of the papers, and upon the ground that the plaintiff could not serve the process. The motion was denied and the defendant now appeals to the general term. The defendant contends that the court had no jurisdiction in consequence of the defective service, and therefore, the judgment is void. If this view is correct, the appeal should be sustained. I do not consider the law so to be. This court had jurisdiction both of the subject matter and the person, and the mode of service has nothing to do with the question of jurisdiction, where the proceedings are in a court of general jurisdiction. The irregularity arises not from the want of service, but from the mode of making it. In such a case, a defendant should appear and make the objection and move to set aside the proceedings. If he neglect to do so, he is to be deemed to have waived the objection. We so held in regard to an irregularity in the marine court. (Coit agt. Messerve, July, 1855; See also Barnes agt. Harris, 4 Comst., 374.) I see no reason to change the views I entertained when the motion was made, and as the defendant's motion is solely on the ground of irregularity, he was not entitled to any relief for that cause. In Hunter agt. Lester, 18 How., 347, Special Term, January, 1860, KNOX, J., it was decided, that the service of a summons by the plaintiff in the action, is a mere irregularity which may be corrected by motion before, but not after judgment. If the defendant desires to avail himself of the irregularity, he must move the first opportunity. Where, after judgment by default against the defendant, he moves to set it aside on the ground that no summons or complaint were ever served upon him, he will not be allowed a reference to ascertain that fact, where he does not swear to a full affidavit of merits. Merely swearing generally "that the note has been paid," is not sufficient. The Judge taid: As to the second ground of the motion, the 133d section of the Code provides that "the summons may be served by the sheriff of the county where the defendant may be found, or any other person not a party to the action." I think the service of a summons by the party is a mere irregularity, which may be corrected by motion before judgment, but not afterwards. This was so held in Myers agt. Overton, (2 Abb., 344), by Justice INGRAHAM. "The irregularity arises, not from the want of service, but from the mode of making it, is his language. The defendant, if he desired to avail himself of the irregnlarity, should have made his motion at the first opportunity. 2. Q. When will service of papers by a stranger, not an attorney, be irregular ? A. In Buckman agt. Carnley, 9 How., 180, N. Y. Common Pleas, Special Term, February, 1854, WOODRUFF, J., it was decided, that papers served in the name of a stranger, not an attorney of the court, not authenticated by a party or his attorney, or by the sheriff, or any one professing to act in his behalf, are irregular and cannot be made the basis of an order, which shall affect the plaintiff's proceedings. The Judge said: But the attorney for the plaintiff, in the original action, was notified of an application to exonerate the bail for the defendant, and was served at the same time with an undertaking, signed by Matthew H. Chase. He had no reason to suppose that this application was made by the sheriff, or was for his exoneration. It was a matter of indifference to him whether Matthew H. Chase was exonerated or not-as between the plaintiff and the sheriff-the sheriff was bail, and notice ought to have been given that an application would be made to exonerate him. The papers served were not authenticated in any manner so as to apprise the plaintiff that the sheriff was seeking to obtain relief, and if it was proper to serve them upon the attorney for plaintiff in the original action, instead of his attorney in the present suit, I think they were not sufficient notice of any motion in the sheriff's behalf. I would not encourage a total disregard of any notice of an application to the court, founded on mere irregularity. But here the plaintiff's attorney did not totally disregard it. He notified the sheriff that he had received such a notice-that he did not know from whom it came-that he deemed it irregular, and put the sheriff fully on his guard, and the sheriff ought, I think, to have thereupon distinctly apprised him of the purpose and design of the application, and on whose behalf it was made. Upon this ground I think the motion must be denied; but I am disposed to stay the plaintiff's proceeding and give time to the sheriff to procure an exoneretur, to which he is, I think, clearly entitled. What is the result of the decisions under this section? 1. (1 Q.) A sheriff who is plaintiff, may serve his own writ. 2. The plaintiff in a justice's court, may serve his own summons, either where he is a constable or specially deputed for the purpose. 3. The return to a summons. the service of which is made by a plaintiff who is constable, issued by a justice of the peace, cannot be impeached in an action for trespass, for an arrest under an execution issued upon a judgment rendered on the return of such summons. 4. Where the plaintiff made a personal service of the summons on the defendant, and the defendant not appearing or answering, the plaintiff made an affidavit of service, and entered judgment by default, it was too late after judgment for the defendant to move to set aside the proceedings. 5. The service of the summons by the plaintiff is an irregularity, of which, if the defendant wishes to avail himself, he must move to set aside the service promptly, and before judgment. 6. The service of summons by the plaintiff in the action, is a mere irregularity, which may be corrected by motion before, but not after judgment. 7. Where the defendant moves to set aside a judgment taken against him by default, because the summons and complaint, were served by the plaintiffs he will not be allowed a reference to ascertain whether the summons and complaint were ever served, where he does not swear to a full affidavit of merits. 8. (2 Q.) Papers served in the name of a stranger, not an attorney of the court, not authenticated by a party or his attorney, nor by the sheriff, or any one professing to act in his behalf, are irregular and cannot be made the basis of an order which shall affect the plaintiff's proceedings. 134. Summons, how served and returned. The summons shall be served by delivering a copy thereof as follows: 1. If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, a director or managing agent thereof; but such service can be made in respect to a foreign corporation only, when it has property within this state, or the cause of action arose therein, or where such service shall be made within this state personally upon the president, treasurer, or secretary thereof. 2. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother or guardian, or if there be none within the state then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed. 3. If against a person judicially declared to be of unsound mind or incapable of conducting his own affairs in consequence of habitual drunkenness, and for whom a committee has been appointed, to such committee and to the defendant personally. 4. In all other cases to the defendant personally. 1. Question. Has this section been amended since its passage in 1848 | A. As follows: § 113. [1848.] The summons shall be served by delivering a copy thereof, as follows: 1. If the suit be against a corporation, to the president, or other head of the corporation, secretary, cashier, or managing agent thereof. 2. If against a minor, under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian, or if there be none within the state, then to any person having the care and control of such minor; or with whom he shall reside, or in whose service he shall be employed. 3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, in conse |