in writing. The pleadings as entered never speak in the first person, a fact which seems to corroborate their oral origin, when the clerks made minutes of what the respective parties had said before the judges."" The various pleadings will be treated in Chapter VII and the rules of pleading in chapter VIII of this subject.

The great object of the system of common law pleading is to bring the parties to an issue on some point upon which the case can be decided.

SECTION 3. COMMON LAW PLEADING IN AMERICA.

The English system of common law pleading in a more or less modified form, is still in use in about half of the states of this country. In the other states a system of code pleading has been adopted. A certain knowledge of the principles of common law pleading, however, is essential to an understanding of any system of code pleading.

Martin on Civil Procedure, Sec. 15.

CHAPTER II.

PARTIES.

SECTION 4. WHO CAN SUE OR BE SUED.

The English rule as to the parties to an actior. was that all persons could sue or be sued with the exceptions that felons, outlaws, and alien enemies could not sue, and the sovereigns, foreign states and ambassadors could not be sued.

The American rule is that all persons have legal capacity to sue or be sued. An alien enemy suing will not be heard during the continuance of the war, and a political sovereignty can be sued by a private person only with its own consent.'

SECTION 5. PLAINTIFFS.

Everyone whose legal right has been infringed may become the plaintiff in an action for the redress of such injury. Formerly rights of action, with a few exceptions such as negotiable instruments, could not be assigned so as to enable the assignee to sue thereon, at least in his own name. The law is now much more liberal in this respect.2

Persons, not parties, for whose benefit a contract is made and who sustain a relation of privity to the subject or the consideration may sue upon it.

In matters of agency, it is now well established that an undisclosed principal may generally sue in his own name, on a contract made in the name of the agent while acting within the scope of his agency."

' Andrews' American Law, page

1097, 1st Ed.

• Consult codes and statutes of

particular states.

Andrews Stephens' Pleading, Sec.

22.

SECTION 6. JOINDER OF PLAINTIFFS.

PARTIES

JOINTLY INTERESTED MUST SUE TOGETHER.

"In actions ex contractu, misjoinder or nonjoinder of plaintiffs may be taken advantage of by demurrer, motion in arrest of judgment, or writ of error, or, where the defect is not apparent on the face of the pleadings, by plea in abatement or motion for a nonsuit.

"In actions ex delictu, unconnected with contract, misjoinder may be remedied by demurrer, motion in arrest of judgment, or writ of error, or, if not an apparent defect, by motion for nonsuit; nonjoinder only by plea in abatement or by apportionment of damages on the trial."

SECTION 7. JOINDER OF DEFENDANTS.

Parties subject to a common liability must be sued jointly or severally, according to the nature of the undertaking, the intenion of the parties, or the express words of the contract.

"In actions ex contractu, misjoinder may be open to demurrer, motion in arrest of judgment, or writ of error; or, if not apparent on the fact of the pleadings, by motion for nonsuit at the trial; nonjoinder only by plea in abatement, unless it appear from the pleadings of the plaintiff that the party omitted jointly contracted and is still living."

⚫ Shipman on Common Law Pleading, Secs. 32-33.

• Id., Sec. 34.

CHAPTER III.

COMMON LAW ACTIONS.

SECTION 8. CLASSIFICATION OF ACTIONS.

Actions under the common law are divided into real, mixed, and personal. Personal actions are subdivided into actions, ex contractu, or actions arising out of contracts, and actions ex delictu, or actions arising out of torts. Real and mixed actions will be discussed

in Chapter III, actions ex contractu in Chapter IV and actions ex delictu in Chapter V.