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law, the ordinary course of practice, or the rules of the court may require. It is the duty of the sheriff to serve the process of the court, to preserve order during its sessions, and to execute its judgments. It is the duty of the jury to decide fairly and impartially the questions of fact presented to them, according to the evidence, and according to the rules of law as stated to them by the judge. Read 1 Bl. Comm., pp. 339, 344.

3 Bl. Comm., pp. 24, 273, 317, 324, 365, 372, 375, 391-393.

Bac. Abr., Sheriff M.

Com. Dig., Record, Viscount C 4.

1 Tidd. Prac., pp. 37–53.

1 Starkie Ev., pp. 764-880.

Pomeroy Mun. Law, §§ 100-139, 241.
Walker Am. Law, § 48.

§ 274. Of Causes and Parties.

A court can exercise judicial functions only when some question or controversy, either of law or fact, is presented to it for decision; and since, to every controversy, there must be at least two parties, one of whom affirms, while the other denies, the point in question, it is essential to the action of a court that parties litigant appear before it, invoking its assistance and determination. Hence it is often said that every court of law has three constituent parts: the plaintiff, who affirms his right to the application of a given remedy; the defendant, who denies this right; and the judicial power, which, after due examination, must determine whether or not such remedy shall be applied.

Read 3 Bl. Comm., p. 25.

Pomeroy Mun. Law, §§ 300-303.

§ 275. Of Plaintiffs in Actions Ex Contractu.

The party-plaintiff, in an action at law, must be the person or persons, whose legal right has been violated by the alleged wrong. In actions ex contractu, the proper plaintiff is the person or persons, in whom the legal interest in the contract was vested, at the time the contract was broken. When one person has a legal, and another person has an equitable, interest in a contract, only the former can be the plaintiff in a court of law. Where several persons have a joint legal interest in a contract, they must all be joined as one plaintiff; where their legal interest is several, they cannot join, but each must bring his separate action. Where, of several persons, who have a joint legal interest in a contract, some are dead, the survivors only constitute the plaintiff; and where a person dies, in whom resided a sole or several legal interest in a contract, his executor or administrator is the proper plaintiff. An assignee in bankruptcy is the proper plaintiff in actions upon contracts, in which the bankrupt had a legal interest; and the husband is the proper plaintiff in actions upon contracts, in which his wife is legally interested, she being joined with him as plaintiff in actions upon contracts made by her before her marriage, and in actions for rent or other obligations accruing to her before marriage, in respect of her real estates in real property.

Read 1 Chitty Pl., pp. 1–32.
Gould Pl., Ch. iv, §§ 52-65.

$276. Of Plaintiffs in Actions Ex Delicto.

In actions ex delicto, for wrongs against the rights of personal security and personal liberty, the proper plaintiff is the person, whose security or liberty has been invaded. Where the security or liberty of several persons has been

violated by the same act of the defendant, each must bring his separate action, unless, as may sometimes occur, the damage resulting from the injury be joint. In actions for wrongs against the right of property, the plaintiff must be the person or persons, whose legal interest in the property has been affected by the alleged injury. Where this legal interest in the property vests in several persons jointly, all together constitute one plaintiff; but, where each has a several interest, each must sue alone. Where the legal interest is in one person, and the equitable interest is in another, only the former can be plaintiff in a suit at law. In actions ex delicto which survive the injured party, as is the case with most of those which lie for injuries to property, the executor or administrator of the decedent is the proper plaintiff; but where, of several persons, who were jointly interested at the date of the injury, some are dead, only the survivors can be joined as plaintiffs. In actions for the violation of relative rights, the superior in the relation must be the plaintiff.

Read 1 Chitty Pl., pp. 60-75.
Gould Pl., Ch. iv, §§ 52–57.

§ 277. Of Defendants in Actions Ex Contractu. The party defendant, in an action at law, must always be the person or persons, by whom the alleged wrong has been committed. In actions ex contractu, for the breach of an express contract, the proper defendant is the person or persons, by whom the broken promise was originally made. In actions on implied contracts, the person or persons, who, under all the circumstances of the case, are subject to the legal liability, must be the defendant. Several persons, binding themselves jointly by their contract, must be joined also as defendant in an action for

the breach of such contract; though, where one of two or more joint-contractors is dead, the survivors only are named as defendant. Where each of several parties to the same contract is separately, and not jointly, bound thereby, each must be sued separately for his own breach of contract. Where the contract is several as well as joint, each may be separately sued, or all may be joined as the defendant in one action, as the plaintiff may prefer. Upon the death of a contracting party, if the contractliability, or the right of action for its non-fulfilment, can survive, the proper defendant is his executor or administrator. Upon the contracts of a married woman, made before her marriage, the husband must be joined with her as the defendant.

Read 1 Chitty Pl., pp. 33-59.

Gould Pl., Ch. iv, §§ 66–73.

§ 278. Of Defendants in Actions Ex Delicto.

In actions ex delicto the person who commits the injury, whether by himself or by his agents, is to be made defendant. Where several persons join in the same wrongful act, each may be separately sued, or all may be joined as the defendant in one action, if the plaintiff so elect. Upon the death of the wrong-doer, if the action survive, his executor or administrator must be made defendant. In actions brought against a married woman for torts committed by her, either before or after marriage, both husband and wife must be named as defendant.

Read 1 Chitty Pl., pp. 76-93.

Gould Pl., Ch. iv, §§ 66, 74–78.

§ 279. Of the Nature, Kinds, and Service of Process. The first step, in the institution of an action at law, is to bring the defendant into court, to answer to the claim

of the plaintiff, and to submit to the judgment of the court. This is done by means of process. Process is a general term, embracing all formal mandates of the court which are issued during the progress of a cause. The formal mandate of a court, by which the defendant is directed to appear and answer, is original process. The intermediate mandates, by which proceedings, that are subordinate or collateral to the main action, are commenced or forwarded, are known as mesne process. The mandate, by which the judgment of the court is enforced, is final process. Original and final process, and such mesne process as is directed against the defendant or his property, are known by the general name of writs. Original process is a written mandate, issued by the court, or by some other competent authority, directing the sheriff, or other proper officer, to summon the defendant to appear in court, at a day named therein, (called the return-day,) then and there to answer to the plaintiff's claim. When this process is a simple notice to appear, it is called a summons, and is served upon the defendant by reading it to him, or by leaving with him, or at his usual place of abode, a true and attested copy thereof. If the nature of the action be such that the defendant is liable to arrest upon original process therein, the process, by which the sheriff is commanded to arrest him, is known as a capias, and is served by taking his body into custody, and detaining him until duly released on bail, or committed in satisfaction of the judgment, or discharged by due course of law. In some States, the property of the defendant may be seized at the commencement of the suit, and held as security for his satisfaction of the judgment. The process, by which this is effected, is called an attachment, and is served by taking the property into the possession of the sheriff, as far as the nature of the property will permit, and holding it until the judgment be satisfied, or the property be otherwise

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