MCCARTY v. NIXON, 1 U.S. 77 (1784)

U.S. Supreme Court

MCCARTY v. NIXON, 1 U.S. 77 (1784)  1 U.S. 77 (Dall.)

M'Carty
v.
Nixon et al.

Court of Common Pleas of Philadelphia County

June Term, 1784

This action was commenced returnable to the ensuing term, and now, August 6th, previous to the return of the writ, the plaintiff moves for a [ McCarty v. Nixon 1 U.S. 77 (1784)

special court, under the new act, for granting special courts to plaintiffs. Lewis and Ingersol for the plaintiff Wilson and Wilcocks for the defendant.

Page 1 U.S. 77, 79

THE COURT denied the motion, the defendant not being in court, nor the action depend-

Page 1 U.S. 77, 80

ing for this purpose, till bail filed, or an appearance entered.

Ingersol in arguing on the expression in the last act, 'action depending,' took this distinction Where the original writ is purchased out of Chancery, the suit cannot be said to be depending until the return; because the writ gives the jurisdiction, and before the return, the court does not know the cause. This is the case in the Common Pleas in England But where the original writ issues out of the court, returnable into the same court, as was the case in the star-chamber, and is the case in this court, there it is lis pendens from the purchase of the writ To this purpose he cited 15 Vin. Abr. 127. pl. 3. 5. 6. 8. Cro. Eliz. 675. 5 Rep. 47. 6. 48. a. 1 Vern. 318. 3 Black. Comm. 316. See 10 Vin. Abr. 498. pl. 9.