Tiijs Courtdenied the motion, the defendant not being in court, nor the action depending for this purpose, until bail filed, or an appearance entered.
Ingersotl, in arguing on the expression in the last act, “ action depend*78ing,” 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 Co. 47 a, b; 48 a; 1 Vern. 318; 3 Bl. Com. 316. See 10 Vin. Abr. 498, pl. 9.