No. 2779. Book 4, tit. 7, chap. 2, sec. 2, § 3, art. 2. No. 2780. be sued, because each is answerable for his companion's acts. Thus a joint action may be brought against several for an assault and battery, or for composing and publishing a libel.(a) But to this rule that for a joint injury a joint action may be brought, there is an exception, namely, that no joint action can be maintained for a joint slander; this exception seems to proceed upon the ground that each man's slander is his own, and it cannot by any means be considered that of another. Although this exception appears to be fully established, yet it is difficult to see the reason of it; when one of several trespassers gives the blow, he is considered as acting for the others, and, if they acted jointly, they may be jointly sued; why not consider the speaker, when acting in concert with others, as the actor for the whole in uttering the words? The blow is no more that of the person who did not give it, than the words are the words of him who only united with the other in an agreement that they should be spoken. In either case, upon principle, the maxim qui facit per alium facit per se, ought to have its force. Such, however, is not the law. 2779.-2. There is a distinction between mere personal actions for torts, and such as concern real property. If a tenant in common be sued for a tort, for any thing respecting the land held in common, he may plead the tenancy in common in abatement. (b) Art. 2.-Of joint liabilities for neglect of public duty. 2780. When several officers join in their neglect of a public duty, or by doing an injurious act, for which they may be sued, they may be sued jointly or (a) 2 Saund. 117, a; Bac. Ab. Actions in General, C; Harris v. Huntington, 2 Tyler, 129. (b) Low v. Mumford, 14 John. 426; Sumner v. Tileston, 4 Pick. 309. See 10 Mass. 378. No. 2781. Book 4, tit. 7, chap. 2, sec. 2, § 4. No. 2784. severally. (a) And if carriers act together as partners and injure a customer by neglecting their duty, as by losing his goods in their charge, they must be sued jointly.(b) Art. 3.-Of the joint liabilities for the neglect of a private obligation. 2781. When the injury results from the neglect of a private obligation, as to repair a dividing fence, the rule, as far as respects strangers, seems to be, that all occupying the land charged with the repair, whether as tenants or bare occupants, are liable jointly, each may be sued separately, or any number less than the whole may be made joint defendants, because a stranger cannot know the state of the property. So if a nuisance be upon the land, and the owner sells it, after which the nuisance is continued, the former owner and the purchaser may be jointly sued.(c) § 4. Cases where the wrong doer is dead. 2782. We have seen that when the injured party dies, it is a general rule that no action can be maintained by his executors for the mere personal injury done to him, the maxim in such cases being actio personalis moritur cum persona. The same rule prevails when the wrong doer dies; in general no action lies against his personal representatives. 2783.-1. If the wrong doer dies before judgment, there is no remedy for any injury done to the person of the plaintiff; nor can an action be maintained against the executors of one who has broken his promise to marry. 2784.-2. For an injury committed by a testator to personal property, no action can in general be sustained against his executor; though if the testator (a) Rich Sir Peter v. Pilkinton, Carth. 171. No. 2785. Book 4, tit. 7, chap. 2, sec. 2, § 5. No. 2788. converted the property into money, assumpsit may be maintained against the executor; and if the property remains in specie in the hands of the latter, trover would lie against him, but not in his character of executor. 2785.-3. When the injury is against real property, no action will in general lie against the executor of the wrong doer; though if trees or other parts of the freehold be taken or converted into money, assumpsit will lie against the personal representatives; or if the trees remain in specie, trover may be maintained against him.(a) 2786.-4. When there are several wrong doers and one dies, the action may be brought against the survivor, or any number of them the plaintiff may select, or against one only. § 5. When the wrong doer marries. 2787. The marriage of a woman changes her rights and liabilities so far, that she cannot alone enforce the former, nor can she alone be sued for the latter; in general her husband must be joined in actions by and against her. 2788. When she commits a tort before marriage, the action must be against the husband and wife jointly.(b) For torts committed by her during the coverture, as for slander, battery, and the like, the husband and wife must be joined; but they cannot be sued jointly for the slander uttered by both of them, because she cannot be made responsible for the slander uttered by her husband. When the tort is joints and she could be sued if she were a common person, then the action may be against them both jointly; as where the husband and wife committed an assault and battery, or in such case the (a) Hambly v. Trott, Cowp. 373; 1 Saund. 216, a. (6) Bac. Ab. Baron & Feme, L; Hank v. Harman, 5 Binn. 43. No. 2789. Book 4, tit. 8, chap. 1, sec. 1. No. 2790. husband may be sued alone. Trover may be supported against husband and wife for a conversion of goods before marriage, (a) and for a conversion by husband and wife, the husband may be sued alone.(b) TITLE VIII.—OF THE PROCEEDINGS IN AN ACTION. 2789. We have seen that when a legal right has been invaded, the plaintiff is entitled to his remedy, for the redress of the injury, by an action; and having ascertained who are the persons who must be made both plaintiffs and defendants, our task now will be to consider the proceedings which usually take place in an action or suit at law. In the discussion of this subject it will be necessary to inquire, 1, what is the proper form of the process; 2, what is an appearance; 3, into the pleadings; 4, the declaration; 5, the defence; 6, the pleas; 7, the replications; 8, the rejoinder and subsequent pleadings; 9, the demurrers; 10, the nature of a case stated; 11, the trial; 12, the arrest of judgment and new trial; 13, the judgment; 14, the proceedings in the nature of appeals; 15, the execution of the judgment. CHAPTER I.-OF THE PROCESS. SECTION 1.-OF THE GENERAL NATURE oF process. 2790. The writ or judicial means by which a defendant is brought in, or called upon to answer to the complaint of the plantiff, is called process. It is so called, because it proceeds, or issues forth, in order to (a) 2 Saund. 47, h, i. (b) 2 Saund. 47, i. No. 2791. Book 4, tit. 8, chap. 1, sec. 1. No. 2792. bring the defendant into court, to answer the charge preferred against him.(a) 2791. According to the English law, the king is theoretically the fountain of all justice, and he is represented in chancery by the lord chancellor. Before the courts can have any jurisdiction, a writ must be issued out of chancery in the king's name, by which the defendant is commanded to satisfy the plaintiff, or else to appear in a court of law therein named, and answer for his default; this is called the original writ, and is required to give the law court jurisdiction of the case; it is a species of commission authorizing such a court to try the cause. All the writs which are issued between the return of the original, until judgment has been obtained, are called mesne writs; and all which issue afterward, are denominated final writs. The original writ is issued under the great seal, and tested, that is, it concludes with an attesting clause in the name of the king himself, "witness ourself." All the other writs in the cause bear teste in the name of the chief justice; and these last writs are called judicial writs, by way of distinction from the original one obtained out of chancery. In modern practice the original writ is frequently dispensed with by means of a fiction, and a proceeding by bill is substituted. (b) 2792. In the United States, the original writ, as in England, is generally dispensed with; the constitutions of the several states giving power to issue writs, so that with us what are called the mesne writs in England, are here original writs, and we have also final writs, into which two kinds all our writs are divided, there being no mesne or middle writs as in England. The several constitutions of the states have provided the mode of issuing writs and process. They are generally issued in the name of "the commonwealth," (a) United States v. Noah, 1 Paine, R. 368. (b) Steph. Pl. 54. |