should be effective, without regard to the residence of one attempting to deal with it pendente lite. Conclusion. SEC. 24. It must be concluded, therefore, from this review of the authorities, that the primary and essential object and ground of the rule lis pendens is to enable courts of justice to maintain, notwithstanding pendente lite alienations by parties to the suit, jurisdiction over the subject matter of litigation so as to be able to enforce their decrees and judgments when they are rendered; that when, however, the quality of the res litigiosa will not be impaired thereby, a secondary ground or object, specially in courts of chancery, may be to administer the rule so as to preserve the equities of the parties, and place some stress upon actual and constructive notice, but that while many courts have taken an erroneous view, notice is never a primary object or ground for lis pendens. That, so far as relates to the territorial scope of lis pendens, authorities are in conflict; but that the better rule would seem to be, that lis pendens, in any of the States, should be binding in other States of the Union. SEC. 28. SEC. 29. The common law rule as to commencement of lis pendens. SEC. 49. Commencement of lis pendens and suit in Missouri. SEC. 50. Commencement of suit in W. Virginia. SEC. 51. Commencement of suit in Kentucky. SEC. 51a. When generally chancery suits commenced. SEC. 52. When service by publication. Importance of the subject. SEC. 25. In order to determine how the rights of parties litigant, or of third persons, are affected by lis pendens, it often becomes necessary to know at what precise point of time the suit may be deemed commenced, so as to take effect upon property as a lis pendens. It is manifest, that there is some danger of confounding the various cases which may arise, in which it may become necessary to enquire as to the commencement of suits and their lis pendens. Lis pendens, or notice lis pendens, might seem to necessarily have the same meaning, when relating to the rights of the parties themselves involved in the case, when having reference to the running of the statutes of limitation and when referring to the rights of third parties, acquired pending the cause, in the subject matter of litigation. This is not, however, the case. The commencement of a suit, and of notice lis pendens may or may not be at the same point of time. In many, if not in all of the States, it is provided by statute when causes at common law and in chancery are deemed to be commenced. In the absence of any such provision, a suit at common law is commenced by the issuing of the writ by the clerk, and, unless governed by statutory provisions, the same would be true in chancery. But with regard to the defense of the statute of limitation, the suit in some States is regarded as commenced from the issuing of the writ, in others, from the delivery of the writ to the officer, and in others again, from the service of the process. With regard to the commencement of constructive notice of lis pendens, it may be said, that neither of these periods is necessarily the same. Former practice as to filing bills. SEC. 26. In former times it was not necessary, in chancery, to file the bill before issuing the writ. Process was frequently issued upon praecipe.(1) The (1) Prior to 1705, the evils arising from the loose practice of issuing subpoenas in chancery upon praecipe, before filing the bill, became same loose practice prevailed for a long time in the older States of the Union. In consequence of this practice, which prevailed at the time Lord Bacon adopted in chancery the rule lis pendens, the effect of notice lis pendens was postponed from the real commencement of the cause, until the service of subpoena upon the defendant. The manifest reason for this postponement was that there was not necessarily, on the files in the court of chancery, any bill which by its allegations would disclose to the world the subject matter of litigation. Although the mere service of subpoena upon the defendant would of itself furnish no notice to a purchaser of the subject matter of litigation, and would not necessarily inform the defendant even on that subject; yet, as the defendant would be presumed to have the means of ascertaining what the suit was about; and, thus acting honestly, avoid dealing with the property without disclosing to the purchaser the fact, that it was involved in litigation, in order to give the public an opportunity to learn facts not thus disclosed by any record; and in the supposed interest of justice and fairness the commence so great, that Parliament passed the statute of 4th Anne, Chap. 16, Sec. 22, which provided that: "No subpoena, or other process of appearance, do issue out of any court of equity, till after the bill is filed with the proper officer in the respective court of equity, except in case of bills for injunctions to stay waste, or stay suits at law commenced, and a certificate thereof brought to the subpoena office or to him who usually makes out subpœna, or other process in the sev eral courts of equity, under the hand of the six clerk or other clerk in office who usually files bills in equity, for which certificate he shall receive no fee." For further information upon the subject of the issuance of subpoenas in chancery before the bill was filed, see Sugden's Law of Vendors, (8th London Ed.) 745; Pigott v. Nower, 3 Swanst. 535, (note); and Anon. 1 Vern. 318. As to the practice in the time of Henry the VI, see 1 Spence's Eq. Jur. 349 and 367. ment of the lis pendens was thus postponed until service of subpoena and the filing of the bill.(1) Statutes upon the subject. SEC. 27. More recently, however, in England (2) and in many of the States of the Union, lis pendens statutes have been passed, requiring the filing or recording of notices lis pendens, prescribing what they shall contain and, in most instances, declaring their legal effect. In those States where this has been done, the provisions of these statutes will prevail, so far as relates to the commencement of lis pendens. In other States, statutes have been passed requiring the filing of bills in chancery with the clerk of the court, before the issuing of the subpoena, and in such terms that a subpoena issued without the previous filing of a bill would necessarily be declared void, thus insuring that there should appear upon the public records a pleading, containing full and specific allegations in respect to the subject matter of litigation. It (1) Murray v. Ballou, 1 Johns. Ch. 576; Harrington v. Harrington, 27 Mo. 562; Metcalf et al. v. Smith's Heirs, 40 Mo. 575; Fenwick v. Gill, 38 Mo. 525; Shaw v. Padley, 64 Mo. 522; Banks et al. v. Thompson, 75 Ala. 531; Skeel v. Spraker, 8 Paige, 182; Heatly v. Finster, 2 Johns. Ch. 158; Green v. Slayter, 4 Johns. Ch. 38; Hale v. Warner's Admr. et al., 36 Ark. 217; Scudder . Van Amberg, 4 Edw. 29; Hayden v. Bucklin, 9 Paige, 512; Grant v. Bennett, 96 Ill. 513; Lytle's Exr. v. Pope's Admrs., 11 B. Mon. 318; Lytle v. Bradford, 7 T. B. Mon. 112; Wickliffe's Exr. 2. Breckenridge's Heirs. 1 Bush. 443; Metcalfe v. Larned,40 Mo. 572; Sam uels v. Shelton et al.,48 Mo.445; Bailey v. McGinness, 57 Mo. 362; Herrington v. Herrington, 27 Mo. 560; Hirshizer v. Tinsley, 9 Mo. App. 339; Youngman v. Elmira, etc., R. R. Co., 65 Penn. St. 275; Mason et al. v. Saloy, 12 La. An. 776; Fash v. Ravesies, 32 Ala. 451; Steele v. Taylor, 1 Minn. 274; Hall v. Jack, 32 Md. 253; Hersey v. Turbett, 27 Penn. St. (3 Casey) 418; Cooley v. Brayton, 16 Ia. 10; Hart et al. v. Marshall, 4 Minn. 294; Crocker v. Crocker, 57 Me. 395; Berry v. Whitaker, 58 Me. 422; McPherson v. Housel, 2 Beas. Ch. 299. (2) Sec. 7, Chap. II, 2d and 3d Victoria. |