courts have concurrent jurisdiction with the circuit courts of all crimes and offences against the United States, the punishment of which is not capital. And by a late act 17* the punishment of whipping is abolished. 2633. By the first section of the act of February 13, 1807, the judges of the district courts of the United States shall have as full power to grant writs of injunction to operate within their respective districts as is now exercised by any of the judges of the supreme court of the United States under the same rules, regulations, and restrictions as are prescribed by the several acts of congress establishing the judiciary of the United States, any law to the contrary notwithstanding; Provided, that the same shall not, unless so ordered by the circuit court, continue longer than to the circuit court next ensuing; nor shall an injunction be issued by a district judge in any case where the party has had a reasonable time to apply to the circuit court for the writ. 2634. An injunction may be issued by the district judge under the act of March 3, 1820, §§ 4, 5, where proceedings have taken place by warrant and distress against a debtor to the United States or his sureties, subject by § 6 to appeal to the circuit court from the decision of such district judge in refusing or dissolving the injunction, if such appeal be allowed by a justice of the supreme court. On which, with an exception as to the necessity of an answer on the part of the United States, the proceedings are to be as in other cases. 2635. The judiciary act vests authority in the judges of the district court to grant writs of habeas corpus for the purpose of inquiry into the cause of commitment. 2636. Other acts give them power to issue writs, take depositions, make rules, and the like. The acts of congress already treated of, relating to the privilege of not being sued out of the district of which the defendant is an inhabitant or in which he is found, restricting suits by assignees, and various other provisions, apply to the district court as well as to the circuit court. 2637. By the ninth section of the judiciary act the trial of issues in fact in the district courts in all causes, except causes of admiralty and maritime jurisdiction, shall be by jury. 2638. By the act of August 23, 1842, s. 3, it is enacted that the district courts of the United States shall have concurrent jurisdiction with the circuit courts of all crimes and offences against the United States, the punishment of which is not capital. 2639. By the Bankrupt Law 175 the district courts are constituted courts of bankruptcy, and are always open for this purpose. The circuit courts exercise a general supervision over the district courts. In each congressional district a register in bankruptcy is appointed who makes adjudication in bankruptcy, holds the meetings, audits and passes the accounts, and, in general, transacts all the business which is uncontested. From his decision an appeal may be taken to the district court, and thence to the circuit court. The discharge of the bankrupt is granted by the judge of the district court. 2640. The courts of the organized territories of the United States are established by the acts of congress establishing such territories. The courts thus established are generally the same in all the territories. In each of them there are: A supreme court, composed of a chief justice and a number of associate justices, who have an appellate jurisdiction and a general supervision of all the other courts in the territory. The court appoint their own clerk and admit VOL. II.-I 174 Act of February 28, 1839, s. 5. 175 Act of March 2. 1867, Ch. 176; 14 Stat. 517. attorneys and counsellors to practice. The marshal of the territory executes the mandates of the court. The territory is divided into districts, and in each district there is a court called the district court. A clerk is appointed by the court, and attorneys and counsellors are admitted. The marshal executes their process. The court in each district is held by one of the judges of the supreme court. The district courts have the same jurisdiction in all cases arising under the constitution and laws of the United States as is vested in the circuit and district courts of the United States. Writs of error and appeals from the final decisions of the said courts in all such cases may be made to the supreme court of the territory. These courts exercise jurisdiction in all cases under the laws of the territorial legislature. Besides these there are probate courts for proving last wills and granting letters of administration on the estates of persons deceased. Jurisdiction is also given in certain cases to justices of the peace. 2641. Besides the courts of the United States established by the national constitution, each state has an independent judiciary, over which the United States have no power, with the exception of the power of removing certain cases from the state courts into the circuit courts of the United States, and the supervisionary jurisdiction of the supreme court of the United States in cases involving constitutional questions. The state courts are all established by their respective constitutions with definite powers. A review of the judicial system of each state could only give an abstract of the several constitutions. This can best be studied by reading the constitutions themselves, which are accessible to every one. 66 CHAPTER IV. PARTIES TO ACTIONS. 2642. Actions, definition and kinds. 2644. Real actions. 2645. Personal actions. 2646. Actions ex contractu and ex delicto. 2652-2788. Parties to actions. 2656-2734. Parties to actions ex contractu. 2656-2703. Plaintiffs in actions ex contractu. 2657-2666. When the action is between the contracting parties. 2667. The number of plaintiffs who must join. 2669-2678. By whom the suit must be brought in case of marriage. 2670, 2671. When the husband and wife must join. 2670. For causes in suo jure. 2671. For causes in alieno jure. 2672. When the husband may sue alone. 2673. When the wife may sue alone. 2674. When the husband and wife may join or not at their election. 2675. When the husband survives the wife. 2676. When the wife survives the husband. 2677. Effect of marriage and its dissolution lite pendente. 2679-2695. Executors and administrators. 2679-2687. Executors. 2680. The kinds of executors. 2682. The number of executors. 2683. The effect of the death of executors. 2684. Executor de son tort. 2688-2695. Administrators. 2689. Absolute and conditional administrators. 2690. The number of administrators. 2692. Foreign administrators. 2693. The death of administrators. 2695. Wrongful administrators. 2696. Who must be plaintiffs when one of several obligees is dead. 2697. When the cause of action has been assigned. 2701. In case of bankruptcy or insolvency. 2702. When a foreign government may sue. 2704-2734. Defendants in actions ex contractu. 2706. Liability on simple contracts. 2709. Liability on contracts under seal. 2710. Liability on judgments. 2711-2716. The number of defendants who must be joined. 2712. Joint liabilities on simple contracts. 2714. Joint liabilities on contracts under seal. 2715. Joint liabilities on debts of record. 2716. When persons cannot be joined. 2717-2723. When a female obligor marries. 2718. When the husband and wife must be joined. 2719. When the husband may be sued alone. 2720. When the wife may be sued alone. 2721. When the husband and wife may be joined at the election of the plaintiff. 2724-2728. Executors and administrators. 2725. Who may be sued as executors or administrators. 2726. In what form they may be sued. 2727. For what causes they may be sued. 2729. When one of several obligors is dead. 2730. When there has been a change of credit and where covenants run with the land. 2732. When the obligor is bankrupt. 2733. When the obligor is insolvent. 2735-2788. Parties to actions ex delicto. 2738-2741. Injuries by positive misfeasance. 2738. Injuries to the person and personal rights. 2739. Injuries to property. 2741. Injuries to the relative rights. 2742. Injuries by breach of public duty. 2743. Injuries from the omission of a private obligation. 2744. When the plaintiff may sue ex contractu or ex delicto. 2745. Actions given by statute. 2746. When the interest has been assigned. 2747-2753. The number of plaintiffs. 2748-2751. Injuries to several persons by positive misfeasance. 2749. Injuries to the person and personal rights. 2750. Injuries to the joint property of several persons. 2751. Injuries to the relative rights of several persons. 2752. Injuries arising from neglect of public duty. 2753. Consequences of a non-joinder or mis-joinder. 2754-2757. When the injured party is dead. 2755. Injuries to the person. 2756. Injuries to personal property. 2758. When one of several persons injured is dead. 2759-2766. When a married woman may be joined. 2760. Injuries committed before coverture. 2767-2788. Defendants in action ex delicto. 2767-2775. Liabilities between the original parties. 2768-2772. Positive wrongs. 2769. Injuries to the person and personal rights. 2772. Injuries to property. 2773. Liabilities for a breach of public duty. 2774. Liabilities from neglect of a private obligation. 2775. Liabilities from a breach of contract. 2776. When the interest has been assigned. 2777-2781. The number of persons liable for an injury. 2780. Joint liabilities for neglect of public duty. 2781. Joint liabilities for neglect of a private obligation. 2782. When the wrong doer is dead. 2787. When the wrong doer marries. 2642. Actions are sometimes divided into criminal and civil. A criminal action is a prosecution in a competent court of justice, in the name of the government, against one or more individuals, who are accused of having committed a crime. This does not belong to our subject. 2643. A civil action is one prosecuted for the recovery of a right or the redress of an injury. It is a legal demand of one's right in a court of justice, in the form prescribed by law, or it is a suit given by law for the recovery of what is due. The term action includes the whole course of legal proceedings to obtain the redress for a civil injury. Until judgment the proceeding is properly called an action, but not after, and, therefore, a release of all actions is regularly no bar to an execution.2 The term suit is sometimes used instead of action. Under the judiciary act of 1789 the word suit applies to any proceeding in a court of justice in which the plaintiff pursues, in such court, the remedy which the law affords him; in this sense an application for a prohibition is, therefore, a suit.3 A distinction is sometimes made by applying the term action to proceedings at law, and suit to those in equity; thus we say, an action at law and a suit in equity. Actions differ as they have for their object the recovery of land, without damages, when they are called real actions; when they are instituted to recover some specific article of personal property, wrongfully withheld from the plaintiff by the defendant, or a compensation in money for an injury sustained, which compensation is technically called damages, they are then called personal actions. When the object of the action is the recovery of real estate and damages for the illegal detention, they are denominated mixed actions. 2644. Real actions are those brought for the specific recovery of lands, tenements, or hereditaments. They are called droitural when the plaintiff, in these actions called the demandant, seeks to recover the property; or possessory when he endeavors to recover the possession. Real actions are writs of right; writs of entry; and writs ancestral. By these actions, formerly, all disputes concerning real estates were decided, but now they are pretty generally laid aside in practice, on account of the great nicety required in their management, and the inconvenient length of their process, a much more expeditious method of trying titles having been introduced by other actions, personal and mixed. 2645. Personal actions are those brought for the specific recovery of goods and chattels, or for damages, or other redress for breach of contract, or other injuries of every description, the specific recovery of lands, tenements, or hereditaments only excepted. Considered as to their cause, personal actions are ex contractu, or arising out of contracts, and ex delicto, or to redress some wrong 1 Coke, Litt. 285; 3 Sharswood, Blackst. Comm. 116. 2 Coke, Litt. 289, a. 32 Pet. 449. In its most extended sense the word suit includes not only a civil action, but also a criminal prosecution; as, an indictment, an information, and a conviction before a magistrate. Hammond, Nisi P. 270. See Stephen, Plead. 427. Stephen, Plead. 3. 5 Finch, Law, 257. |