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menced,” or “ brought,” is used: thus in 31 Eliz. c. 5, sec. 3, 5, 6, the words are, “ had, sued, commenced, or brought;" and in the 27 Geo. 3, c. 44, for the limitation of suits in the Ecclesiastical Court, it is enacted that no suit shall be “commenced,” for the offences therein enumerated after the expiration of eight calendar months. This is a plenary cause, and must be governed by the rules of the Ecclesiastical Courts, or, in other words, by the Canon law. To constitute a suit depending in these courts, there must be litis contestatio, it is not sufficient that there be litis pendentia ; and to constitute the litis contestatio the parties must have joined issue, that is the doctrine of Lord Stowell in Bonsor v. Ricketts (c).
The same rule is laid down by Maranta : “ Judicium, lis, instantia et causa, qualiter accipiantur. Et quid unumquodque illorum”(d).
It is not, therefore, enough that the cause should have begun, but it must have begun to depend, that is the true intent of the statute, and is conformable to the practice in the Ecclesiastical Courts (e).
The Act 27 Geo. 3, c. 44, limits the period for bringing suits in the Ecclesiastical Court, for defamation to six months, from the time when such defamatory words shall have been uttered; and for fornication, incontinence, or striking or brawling in a church, to eight months from the time when such offence shall have been committed. The word there used is a commenced.” There has been no decision upon that statute; but it is plain that the Legislature have here intended a marked distinction, by using the word “ depending" instead of " commenced.” (c) 1 Hagg. Cons. Rep. 214.
(d) Par. V. p. 180, pl. 64. () Outram, 1 vol. p. 21. Conset. Ecc. Prac. p. 85.
By the Civil and Canon law, criminal suits must be commenced within two, and civil suits within three SHERWOOD years ($).
This is not an obsolete doctrine, as is proved by the case of Bonsor v. Ricketts.
The Clementine Constitution, B. ii. tit. 6, ch. 2, recognises the distinction between a Citation calling upon a party to appear, and one setting forth the right of action, and treats the former as a criminal proceeding.
The Citation here does not show the cause of action; it is only for an appearance. Now a party may be cited to appear in a cause which, when litigated, shall have a totally different object from that originally contemplated : as in a suit for the restitution of conjugal rights, if the wife plead cruelty and adultery, the suit becomes one for divorce: in such a case how can the cause be said to be depending before there has been contestatio litis?
No analogy can be drawn from the decisions at common law. The case of Smith v. Johnson (9) decided, for the first time, that the suing out a latitat was the commencement of a suit within the meaning of the statute of Limitations (h); but that decision turned entirely on the wording of the statute, which enacts, that all actions shall be commenced and sued, &c. within six years; had the Act used the word " depending,” the decision would have been different.
The statute of 4 Ann. c. 16, s. 22, providing against the issuing of a subpæna before bill filed, effectually decides what is the commencement of a suit in equity;
(9) Burrows, R. 950.
(8) Clarke's Praxis, tit. 118, 119, &c.
(h) 21 Jac. 1. c. 16.
before that statute, lis pendens originated from the teste of the subpæna, not from the filing the bill, Pigott v. Nowen (i): but there has always been a wide distinction between lis pendens and lis motu (k).
II. The interest to sustain the suit must be a pecuniary interest, Faremouth v. Watson (1); Hale's Case (m). No person, on account either of affinity or consanguinity, can sustain such a suit; the interest in the status of the children of the marriage is not sufficient; a pecuniary interest, which alone is sufficient, is not relied on by the Respondent, Turner v. Myers (n). Suits of this nature are comparatively modern, Duchess of Kingston's Case (); Harvey v. Collins (P); Compton v. Bearcroft (9).
The criminal proceeding has been almost entirely abandoned; the object being, not the punishment of the parties, but the dissolution of the marriage.
There is no analogous proceeding to this at law. The action by a father for the seduction of his daughter, or a master for that of his servant, is essentially different; for in those cases the service of the party must not only be declared, but it must be proved : in neither case does the right of action proceed on the relation of the parties to each other, but on the services which they are bound to render, and the loss of those services is the gist of the action.
Mr. C. Austin :The term “depending," adopted by the Legislature, is strictly technical, and is used in such a sense as to
(i) 3 Swan. 534.
(n) i Hagg. Const. Rep. 414.
imply the litis contestatio of the Civil law. If the words were, “shall have been commenced, and be SHERWOOD depending,” there would have been no doubt, for I admit that there was a suit commenced.
As respects the Canon law, the word lis is secundum subjectum, and is equivalent to our word suit. The lis begins from the return of the Citation, but the litis pendentia, or lis pendens, is not until the Court begins cognoscere causam; the litis contestatio is where the cause has actually commenced, and the parties are at issue.
In providing for the limitation of suits, the words generally used by the Legislature are commenced and sued; in the statutes for the limitation of real and personal actions, these, or words of similar import, are invariably found; thus the 32 Hen. 8, c. 2, s. 7, provides, that where parties shall have any of the suits or actions mentioned in the Act depending, or shall sue, commence, make, or bring any of the writs or actions, such parties shall have the same advantages as they might have had before the making of the statute. The Act 21 James 1, c. 16, provides, sec. 1, that writs of formedon shall be sued or brought within 20 years;
and the same words are used in the subsequent clause, sec. 3, for the limitation of personal actions. The statute 4 Anne, c. 16, s. 12, enacts, that all suits, &c. for seamen's wages which shall become due “ shall be commenced and sued within six years next after the cause of such suits or actions shall accrue, and not after.” And in the Act for quieting possession, 9 Geo. 3, c. 16, the Crown is expressly disabled from impleading for any manors, where the title hath not accrued “within the space of sixty years next before the filing, issuing, or commencing of every such action, bill,” &c. The same words are
used in the 31 Eliz. c. 5, s. 5, for the limitation of SHERWOOD penal actions. So also in the statute of Pardon, 35 Eliz.
c. 14, Franklin's Case(r); Gilbert Littleton's Case(s), excepting all penalties for offences therein named, whereof or for which any suit, action, bill, plaint, or information at any time before, &c. within eight years next before, &c. had been or should be exhibited, commenced, or sued, &c.
There are many other statutes which might be cited, all tending to show that the Legislature has uniformly distinguished between suits depending, and suits commenced.
The effect of these words is, that statutes of limitation always begin to run from the commencement of the suit, and hence arises the distinction between the lis pendens of the Common law, and the litis pendentia of the Canon law.
In pleading lis pendens, or autre action pendant at law, if it be in abatement, it is necessary that the plea should aver that a bill has been exhibited, or declaration filed; but if it be in bar to a penal action, it must aver that a writ has been sued out, for it must show the very commencement of the suit, Sparry's Case (t); The Queen v. Harris (u).
By the law of Scotland an action is only depending when the summons is executed; and an inhibition upon a depending action is not issued but upon production of the summons duly executed (x).
In Chancery the lis pendens, even before the sta
(r) 5 Co. Rep. 46.
(u) Cro. Eliz. 221. Bac. Abr. tit. Abatement, N. Chitty's Pleading, vol. 1, p. 393; vol. 3, p. 903. 996, ed. 1825.
(a) 2 Bell. Com. 150. Law Dic. tit. Lis pendens.