PARTIES, contracts. Those persons who engage themselves to do, or not to do the matters and things contained in an agreement.
2. All persons generally can be parties to contracts, unless they labor under some disability.
3. Consent being essential to all valid contracts, it follows that persons who want, first, understanding; or secondly, freedom to exercise their will, cannot be parties to contracts. Thirdly, persons who in consequence of their situation are incapable to enter into some particular contract. These will be separately considered.
4. - §1. Those persons who want understanding, are idiots and lunatics; drunkards and infants,
5. - 1. The contracts of idiots and lunatics, are riot binding; as they are unable from mental infirmity, to form any accurate judgment of their actions; and consequently, cannot give a serious and sufficient consideration to any engagement. And although it was formerly a rule that the party could not stultify himself; 39 H. VI. 42; Newl. on Contr. 19 1 Fonb. Eq. 46, 7; yet this rule has been so relaxed, that the defendant may now set up this defence. 3 Camp. 128; 2 Atk. 412; 1 Fonb. Eq. n. d.; and see Highm. on Lun. 111, 112; Long on Sales, 14; 3 Day's Rep. 90 Chit. on Contr. 29, 257, 8; 2 Str. 1104.
6. - 2. A person in a state of complete intoxication has no agreeing mind; Bull. N. P. 172; 3 Campb. 33; Sugd. Vend. 154 Stark. Rep. 126; and his contracts are therefore void, particularly if he has been made intoxicated by the other party. 1 Hen. & Munf. 69; 1 South. Rep. 361; 2 Hayw. 394; see Louis. Code, art. 1781; 1 Clarke's R. 408.
7. - 3. In general the contract of an infant, however fair and conducive tohis interest it may be, is not binding on him, unless the supply of necessaries to him be the object of the agreement; Newl. Contr. 2; 1 Eq. Cas. Ab. 286; l Atk. 489; 3 Atk. 613; or unless he confirm the agreement after he shall be of full age. Bac. Abr. Infancy; I 3. But he may take advantage of contracts made with him, although the consideration were merely the infant's promise, as in an action on mutual promises to marry. Bull. N. P. 155; 2 Str. 907; 1 Marsh. (Ken.) Rep. 76; 2 M. & S. 205. See Stark. Ev. pt. iv. page 724; 1 Nott & McCord, 197; 6 Cranch, 226; Com. Dig. Infant; Bac. Abr. Infancy and Age; 9 Vin. Ab. 393, 4; Fonbl. Eq. b. 1 c. 2; §4, note b; 3 Burr. 1794; 1 Mod. 25; Stra. 937; Louis. Code, article 1778.
8. - §2. Persons who have understanding, who, in law, have not freedom to exercise their will, are married women; and persons under duress.
9. - 1. A married woman has, in general, no power or capacity to contract during the coverture. Com. Dig. Baron & Feme, W; Pleader, 2 A 1. She has in legal contemplation no separate existence, her hushand and herself being in law but one person. Litt. section 28; see Chitty on Cont. 39, 40. But a contract made with a married woman, and for her benefit, where she is the meritorious cause of action, as in the instance of an express promise to the wife, in consideration of her personal labor, as that she would cure a wound; Cro. Jac. 77; 2 Sid. 128; 2 Wils. 424; or of a bond or promissory note, payable on the face thereof to her, or to herself and hushand, may be enforced by the hushand and wife, though made during the coverture. 2 M. & S. 396, n. b.; 2 Bl. Rep. 1236; 1 H. Black. 108. A married woman has no original power or Authority by virtue of the marital tie, to bind her bushand by any of her contracts. The liability of a bushand on his wife's engagements rests on the idea that they were formed by his authority; and if his assent do not appear by express evidence or by proof of circumstances from which it may reasonably, be inferred, he is not liable. 1 Mod. 125; 3 B. & C. 631; see Chitty on Cont. 39 to 50.
10. - 2. Contracts may be avoided on account of duress. See that word, and also Poth. Obl. P. 1, c. 1, s. 1, art. 3, §2.
11. - §3. Trustees, executors, administrators, guardians, and all other, persons who make a contract for and on behalf of others, cannot become, parties to such contract on their own. account; nor are they allowed in any case to purchase the trust estate for themselves. 1 Vern. 465; 2 Atk. 59; 10 Ves. 3; 9 Ves. 234; 12 Ves. 372, 3 Mer. Rep. 200; 6 Ves. 627; 8 Bro. P. C. 42 10 Ves. 381; 5 Ves. 707; 13 Ves. 156; 1 Pet. C. C. R. 373; 3 Binn. 54; 2 Whart. 53; 7 Watts, 387; 13 S. & R, 210; 5 Watts, 304; 2 Bro. C. C. 400; White's L. C. in Eq. *104-117; 9 Paige, 238, 241, 650, 663; 1 Sandf. R. 251, 256; 3 Sandf. R. 61; 2 John. Ch. R. 252; 4 How. S. C. 503; 2 Whart. 53, 63; l5 Pick. 24, 31. As to the transactions between attorneys and others in relation to client's property, see 2 Ves. jr. 201; 1 Madd. Ch. 114; 15 Ves. 42; 1 Ves. 379; 2 Ves. 259. The contracts of alien enemies may in, general be avoided, except when made under the license of the government, either express or implied. 1 Kent, Com. 104. See 15 John. 6; Dougl. 641. As to the persons who make contracts in equity, see Newl. Cont. c. 1, pp. l to 33.
PARTIES TO ACTIONS. Those persons who institute actions for the recovery of their rights, and those persons against whom they are instituted, are the parties to the actions; the former are called plaintiffs, and the latter, defendants. The term parties is understood to include all persons who are directly interested in the subject-matter in issue, who have right to make defence, control the proceeding, or appeal from the judgment. Persons not having these rights are regarded as strangers to the cause. 20 How. St. Tr. 538, n.; Greenl. Ev. §523
2. It is of the utmost importance in bringing actions to have proper parties, for however just and meritorious the claim may be, if a mistake has been made in making wrong persons, either plaintiffs or defendants, or including too many or too few persons as parties, the plaintiff may in general be defeated.
3. Actions are naturally divided into those which arise upon contracts, and those which do not, but accrue to the plaintiff in consequence of some wrong or injury committed by the defendant. This article will therefore be divided into two parts, under which will be briefly considered, first, the parties to actions arising upon contracts; and, secondly, the parties to actions arising upon injuries or wrongs, unconnected with contracts, committed b the defendant.
4. - Part I. Of parties to actions arising on contracts. These are the plaintiffs and the defendants.
5. - Sect. 1. Of the plaintiffs. These will be considered as follows:
§1. Between the original contracting parties. An action. on a contract, whether express or implied, or whether it be by parol, or under seal, or of record, must be brought in the name of the party in whom the legal interest is vested. 1 East, R. 497; and see Yelv. 25, n. l; 13 Mass. Rep. 105; 1 Pet. C. C. R. 109; 1 Lev. 235; 3 Bos. & Pull. 147; 1 Ii. Bl. 84; 5 Serg. & Rawle, 27; Hamm. on Par. 32; 2 Bailey's R. 55; 16 S. & R. 237,; 10 Mass. 287; 15 Mass. 286 10 Mass. 230; 2 Root, R. 119.
6.- §2. Of the number of plaintiffs who must join. When a contract is made with several, if their legal interests were joint, they must all, if living, join in the action for the breach of the contract. 1 Saund. 153, note 1; 8 Serg. & Rawle, 308; 10 Serg. & Rawle, 257; 10 East, 418; 8 T. R. 140; Arch. Civ. Pl. 58; Yelv. 177, note 1. But dormant partners need not join their copartners. 8 S. & R. 85; 7 Verm. 123; 2 Verm. 65; 6 Pick. 352; 4 Wend. 628; 8 Wend. 666; 3 Cowen, 84; 2 Harr. & Gill, 159. When a contract is made and a bond is given to a firm by a particular name, as A B and Son, the suit must be brought by the actual partners, the two sons of A B, t-he latter having been dead several years at the time of making the contract. 2 Campb. 548. When a person who has no interest in the contract is joined with those who have, it is fatal. 19 John. 213 2 Penn. 817; 2 Greenl. 117.
7. - §3. When the interest of the contract has been assigned. Some contracts are assignable at law; when these are assigned, the assignee may maintain an action in his own name. Of this kind are promissory notes, bills of exchange, bail-bonds, replevin-bonds; Hamm. on Part. 108; and covenants running with the land pass with the tenure, though not made with assigns. 5 Co. 24; Cro. Eliz., 552; 3 Mod. 338; 1 Sid. 157; Hamm, Part. 116; Bac. Abr.; Covenant, E 5. When a contract not is signable at law has been assigned, and a recoverly on such contract is sought, the action must be in the name of the assignor for the use of the assignee.
8. - §4. When one or more of several obligees, &c., is dead. When one or more of several obligees, covenantees, partners or others, haviug a joint interest in the contract; not running with the land, dies, the action must be brought in the name of the survivor, and that fact averred in the declaration. 1 Dall. 65, 248; 1 East, R. 497; 2 John. Cas. 374; 4 Dalt. 354; Arch. Civ. Pl. 54, 5; Addis. on Contr. 285; 1 Chan. Rep. 31; Yelv. 177.
9. - §5. In the case o executors and administrators. When a personal contract, or a covenant not running with the land, has been made with one person only, and he is dead, the action for the breach of it must be brought in the name of the executor or administrator in whom the legal interest in the contract is vested; 2 H. Bl. 310; 3 T. R. 393; and all the executors or administrators must join. 2 Saund. 213; Went.95; 1 Lev.161; 2 Nott & McCord, 70; Hamm. on Part. 272.
10. - §6. In the case of bankruptcy or insolvency. In the case of the bankruptcy or insolvency of a person who is beneficially interested in the performance; of a contract made before the act of bankruptcy or before, the assignment under the insolvent laws, the action should be brought in the name of his assignees. 1 Chit. Pl. 14; 2 Dall. 276; 3 Yeates, 520; 7 S. & R. 182; 5 S. & R. 394; 9 S, & R. 434. See 3 Salk. 61; 3 T. R. 779; Id. 433; Hamm. on Part. 167; Com. Dig. Abatement, E 17.
11. - §7. In case of marriage. This part of the subject will be considered with reference to tbose cases. 1st. When the hushand and wife, must join. 2d. When the hushand must sue alone. 3d. When the wife must sue alone. 4th. When they may join or not at their election. 5th. Who is to sue in the case of the death of the hushand or wife. 6th. When a woman marries, lis pendens.
12. - 1. To recover the chose in action of the wife, the hushand must, in general, join, when the cause of action would survive. 3 T. R. 348; 1 M. & S. 180; Com. Dig. Baron & Feme, V; Bac. Ab. Baron & Feme, K; 1 Yeates' R. 551; 1 P. A. Browne's R. 263; 1 Chit. Pl. 17.
13. - 2. In general the wife cannot join in any action upon a contract. made during coverture, as for work and labor, money lent, or goods sold by her during that time, 2 Bl. Rep. 1239; and see 1 Salk. 114; 2 Wils. 424.; 9 East, 412; 1 Str. 612; 1 M. & S. 180; 4 T. R. 516; 3 Lev. 103; Carth. 462; Ld. Raym. 368; Cro, Eliz. 61; Com. Dig. Baron & Feme, W.
14. - 3. When the hushand is civiliter mortuus, see 4 T. Rep. 361; 2 Bos. & Pull. 165; 4 Esp. R. 27; 1 Selw. N. P. 286; Cro. Eliz. 1519; 9 East, R. 472; Bac. Ab. Baron & Feme, M.; or, as has been decided in England, when he is an alien and has left the country, or has never been in it, the wife may, on her own separate contracts, sue alone. 2 Esp. R. 544; 1 Bos. & Pull. 357; 2 Bos. & Pull. 226; 1 N. R. 80; 11 East, R. 301; 3 Camp. R. 123; 5 T. R. 679. But the rights of such hushand being only suspended, the disability may be removed, in one case, by a pardon, and, in the other, by the hushand's return, and then: he must be joined. Broom on Part. s. 114.
15. - 4. When a party being indebted to a wife dum sola, after the marriage gives a bond to the hushand and wife in consideration of such debt, they may join, or the hushand may sue alone on such contract. 1 M. & B. 180; 4 IT. R. 616 1 Chit. Pl. 20.
16. - 5. Upon the death of the wife, if the hushand survive, he may sue for, anything he became entitled to during the coverture; as for rent accrued to the wife during the coverture. 1 Rolle's Ab. 352, pl. 5; Com. Dig. Baron & Feme, Z; Co. Litt. 351, a, n. 1. But the hushand cannot sue in his own right for the choses in action of the wife, belonging to her before coverture. Hamm. on Part. 210 to 215.
17. When the wife survives the hushand, she may sue on all contracts entered into with her before coverture, which remain unsatisfied; and she may recoverall arrears of rent of her real estate, which became due during the coverture, or their joint demise. 2 Taunt. 181; 1 Roll's Ab. 350 d.
18. - 6. When a suit is instituted by a single woman, or by her and others, and she afterwards marries, lis pendens, the suit abates. 1 Chit. Pl. 437; 14 Mass. R. 295; Brayt. R. 21.
19. - §8. When the plaintiff, is a foreign government, it must have been recognized by the government of this country to entitle it to bring an action. 3 Wheat. R. 324; Story, Eq. Pl. §55. See 4 Cranch, 272; 9 Ves. 347; 10 Ves. 354; 11 Ves. 283; Harr. Dig. 2276.
20. - Sect. 2. Of the defendants. These will be considered in the following order: §1. Between the original parties. The action upon an express contract, must in general be brought against the party who made it. 8 East, R. 12. On implied contracts against the person subject to the legal liability. Ramm. Part. 48; 2 Hen. Bl. 563. Vide 6 Mass. R. 253; 8 Mass. Rep. 198; 11 Mass. R. 335; 6 Binn. R. 234; 1 Chit. Pl. 24.
21. - §2. Of the number of defendants. For the breach of a joint contract made by several parties, they should all be made defendants; 1 Saund: 153, note 1; Id. 291 b, n. 4; even though one be a bankrupt or insolvent. 2 M. & S. 23. Even an infant must be joined, unless the contract as to him be entirely void. 3 Taunt. 307; 5 John R. 160. Vide 5 John. R. 280; 11 John. R. 101; 5 Mass. R. 270; 1 Pick. 500. When a joint contractor is dead, the suit should be brought against the survivor, 1 Saund. 291, note 2. The misjoinder of defendants in an action ex contractu, by joining one who is not a contractor, is fatal. 3 Conn. 194; Pet. C. C. 16; 2 J. J. Marsh. 88; 1 Breese, 128; 2 Rand. 446; 10 Pick. 281.
22. - 3. In case of a change of credit, and of covenants running with the land, &c. In general in the case of a mere personal contract, the action for the breach of it, cannot be brought against the person to whom the contracting party has assigned his interest, and the original party can alone be sued; for example, if two partners dissolve their partnership, and one of them covenant with the other that he will pay all the debts, a creditor may nevertheless sue both. Upon a covenant running with land, which must concern real property, or the estate therein; 3 Wils. 29; 2 H. Bl. 133; 10 East, R. 130; the assignee of the lessee is liable to an' action for a breach of the covenant after the assignment of the estate to him, and while the estate remaim in him, although he have - not take possession. Bac. Ab. Covenant, E 34; 3 Is. 25; 2 Saund. 304, n. 12; Woodf. L. & T. 113; 7 T. R. 312; Bull. N. P. 159; 3 Salk. 4; 1 Dall. R. 210,; 1 Fonbl. Eq. 359, note y; Hamm. N. P. 136.
23. - §4. When one of several obligers, &c. is dead. When the parties were bound by a joint contract, and one of them dies, his executor or administrator is at law discharged from liability, and the survivor alone can be sued. Bac. Ab. Obligation, D 4; Vin. Ab. Obligation, P 20; Carth. 105; 2 Burr. 1196. And when the deceased was a mere surety, his executors are not liable even in equity. Vide 1 Binn. R. 123.
24. - §5. In the case of executors an administrators. When the contracting party is dead, his executor or administrator, or, in case of a joint contract, the executor or administrator of the survivor, is the party to be made defen-dant. Ham. on Part. 156. On a joint contract, the executors of the deceased contractor, the other surviving, are discharged at law, and no action can be supported against them; 6 Serg. & R. 262; 2 Whart. R. 344; 2 Browne, Rep. 31; and, if the deceased joint contractor was a mere surety, his representatives are not liable either at, law or in equity. 2 Serg. & R. 262; 2 Whart. 344; P. A. Browne's R. 31. All the executors must be sued jointly; when administration is taken on the debtor's estate, all his administrators must be joined, and if one be a married woman, her hushand must also be a party. Cro. Jac. 519.
25. - §6. In the case of bankruptcy or insolvency. A discharged bankrupt cannot be sued. A discharge under the insolvent laws does not protect the property of the insolvent, and he may in general be sued on his contracts, though he is not liable to be arrested for a debt which was due and not contingent at the date. of his discharge. Dougl. 93; 8 East, R. 311; 1 Saund. 241, n. 5; Ingrah. on Insol. 377.
26. - §7. In case of marriage. This head will be divided by considering, 1. When the bushand and wife must be joined. 2. When the hushand must be sued, alone. 3. When the wife must be sued alone. 4. When the hushand and wife may be joined or not at the election of the plaintiff. 5. Who is to be sued in case of the death of the hushand or wife. 6. Of actions commenced against the wife dum sola, which are pending at her marriage.
27. - 1. When a feme sole who has entered into a contract marries, the hushand and wife must in general be jointly sued. 7 T. R. 348; All. 72; 1 Keb. 281; 2 T. R. 480; 3 Mod. 186; 1 Taunt. 217; 7 Taunt. 432; 1 Moore, 126; aid, s6e 8 Johns. R. 2d ed. 115.; 15 Johns. R. 403, 483; 17 Johns. Rep, 16't;- 7 Mass. R. 291 - Com. Dig. Pleader, 2 A 2-; 1 Bingh. R. 60. But if the hushand be away, or live separate from his wife, she may, on a contract of which she is the meritorious cause, bring an action in the Paine of her hushand, on indemnitying the latter for costs. 4 B. & A. 419; 2 C. & M. 388 Addis. on Contr. 342. And, on such contract, she may sue as a feme sole when her hushand is civiliter inortu'us. Addis. on Contr. 342 1 Salk. 116; 1 Lord Raym. 147; 2 M. & W. 65; Moore, 851.
28. - 2. When the wife cannot be considered either in person, or property as creating the cause of action, as in the case of a mere personal contract made during the coverture, the hushand must be sued alone. Com. Dig. Pleader, 2 A 2; 8 T. R. 545; 2 B. & P. 105; Palm. 312; 1 Taunt. 217; 4 Price, 48; 16 Johns. R. 281.
29. - 3. The wife can in general be sued alone, in the same cases where she can sue alone, the cases being reversed.
30. - 4. When the hushand, in consequence of some new consideration, undertakes to pay a debt of the wife dum sola, he may be sued alone, or the hushand and wife. may be made joint defendants. All. 73; 7 T. R. 349; vide other cases in Com. Dig. Baron & Feme, Y; 1 Rolle's Ab. 348, pl. 45, 50; Bac. Ab. Baron & Feme, L.
31. - 5. Upon the death of the wife, her executor, when she has appointed one under a power, or her administrator, is alone responsible for a debt or duty she contracted dum sola. The hushand, as such, is not liable. Com. Dig. Baron & Feme, 2 C; 3 Mod. 186; Rep. Temp. Talb. 173; 3 P. Wms. 410. When the wife survives, she may be sued for her contracts made before coverture. 7 T. R. 350; 1 Camp. R. 189.
32. - 6. When a single woman, being sued, marries Iis pendens, the plaintiff may proceed to judgment, as if she were a feme sole. 2 Rolle's R. 53; 2 Str, 811.
33. Part 2. Of parties to actions in form ex delicto. These are plaintiffs and defendants.
34. - Sect. 1. Of plaintiffs. These will be separately, considered as follows:
35. - §1. With reference to the interest. Of the plaintiff. The action for a tort must, in general, be brought in the name of the party whose legal right has been affected, 8 T. R. 330; vide 7 T. R. 47; 1 East, R. 244; 2 Saund. 47 d; Hamm. on Part. 35, 6; 6 Johns. R. 195;.10 Mass. R. 125 10 Serg. & Rawle, 357.
36. - §2. With reference to the number of plaintiffs. It is a general rule that when an injury is done to the property of two or more joint owners, they must join in the action; and even when the property is several, yet when the wrong has caused a joint damage, the parties must join in the action. 1 Saund. 291, g. When suits are brought by tenants in common, against strangers for the recovery of the land, inasmuch as they have several titles, they cannot agreeably to the rules of the common law, join, but must bring separate actions; and this seems to be the rule in Missouri. 1 Misso. R. 746. This rule has been changed in some of the states. In Connecticut, when the plaintiff claims on the title of all the tenants, he recovers for their benefit, and his possession will be theirs. 1 Swift's Dig. 103. In Massachusetts, Mass. Rev. St. 611, and Rhode Island, R. I. Laws, 208, all the tenants or any two may join or any one may sue alone. In Tennessee they usually join. 2 Yerg. R. 228.
37. When personal reputation is the object affected, two or more cannot join as plaintiffs in the action, although the mode of expression in which the slander was couched comprehended them all; as when a man addressing himself to three, said, you have murdered Peter. Dyer, 191, pl. 112; Cro. Car. 510; Goulds. pl. 6, p. 78. The reason of this is obvious, no one has any interest in the character of the others, the damages are, therefore, several to each.
38. - §3. In general, rights or causes of action arising ex delicto are not assignable.
39. - §4. When one of several parties who had an interest is dead. In such case the action must be instituted by the survivor. 1 Show. 188; S. C. Carth. 170.
40. - §5. When the party injured is dead. The executors or administrators cannot in general recover damages for a tort, when the, action must be ex delicto, and the plea to it is not guilty. Vide the article Actio personalis moritur cum persona, where the subject is more fully examined.
41. - §6. In case of insolvency. The statutes generally authorize the trustee or assignee of an insolvent to institute a suit in his own name for the recovery of the rights and property of the insolvent. 6 Binn. 189; 8 Serg. & Rawle, 124. But for torts to the person of the insolvent, as for slander, the trustee or assignee cannot sue. W. Jones' Rep. 215.
42.- §7. When the tort has been committed, against a woman dum sola who afterwards married. A distinction is made between those injuries committed before and those which take place during coverture. For injuries to the person, personal or real property of the wife, committed before coverture, when the cause of action would survive to the wife, she must join in the action. 3 T. R. 627; Rolle's Ab. 347; Com. Dig. Baron & Feme, V. For an injury to the person of the wife during coverture, by battery, or to her character, by slander, or for any other such injury, the wife must be joined with her hushand in the suit; when the injury is such that the hushand receives a separate damage or loss, as if in consequence of the battery, he has been deprived of her society or been put to expense, he may bring a separate action, in his own name; and for slander of the wife, when words are not actionable of themselves, and the hushand has received some special damages, the hushand must sue alone. 1 Lev. 140; 1 Salk. 119; 3 Mod. 120.
43. - Sect. 2. Of the defendants. §1. Between the orginal parties. All natural persons are liable to be sued for their tortious acts, unconnected with or in disaffirmance of a contract; an infant is, therefore, equally liable with an adult for slander, assaults aud batteries, and the like; but the plaintiff cannot bring an action ex delicto which arose out of a contract, and by that means charge an infant for a breach of a contract. The form is of no consequence; the only question is whether the action arose out of contract or otherwise. A plaintiff who hired a horse to an infant, and the infant by hard, improper and injudicious driving, killed the horse,, cannot maintain an action ex delicto to recover damages for a breach of this contract. 8 Rawle's R. 351; 6 Watts' R. 9; 8 T. R. 385; Hamm. N. P. 267. But see contra, 6 Cranch,226; 15 Mass. 359; 4 McCord, 387. Vide Infant.
44. - §2. As to the number of defendants. There are torts which, when committed by several, may authorize a joint action against all the parties; but when in legal contemplation several cannot concur in the act complained of, separate actions must be brought against each; the cases of several persons joining in the publication of a libel, a malicious prosecution, or an assault and battery, are cases of the first kind verbal slander is of the second. 6 John. R: 32. In general, When the parties have committed a tort which might be committed by several, they may be jointly sued, or the plaintiff may sue one or more of them and not sue the others, at his election. Bac Ab. Action Qui Tam, D; Roll. Ab. 707; 3 East, R. 62.
45. - §3. When the interest has been assigned. A liability for a tort cannot well be assignee; but an estate may be assigned on which was erected a nuisance, and the assignee will be liable for continuing it, after having possession of the estate. Com. Dig. Case, Nuisauce, B; Bac. Ab. Actions, B; 2 Salk. 460; 1 B. & P. 409.
46.- 4. When the wrongdoer is dead. In this case the remedy for wrongs ex delicto, and unconnected with contract, cannot in general be maintained. Vide Actio personalis moritur cum persona.
47. - §5. In case of insolvency. Insolvency does not discharge the right of action of the plaintiff in any case; it merely liberates the defendant from arrest when he has received the benefit of, and been discharged under, the insolvent laws; an insolvent may therefore be sued for his torts committed before his discharge.
48. - §6. In case of marriage. Marriage does not affect or change the liabilities of the hushand and he is alone to be sued for his torts committed either before or during the coverture. But it is otherwise with the wife; after her marriage she has no personal property to pay the damages which may be recovered, and she cannot even appoint an attorney to defend her. For her torts committed by her before the marriage, the action must be against the hushand and wife jointly. Bac. Ab. Baron and Feme, L; 5 Binn. 43. They must also be sued jointly for the torts of the wife during the coverture, as for slander, assault and battery, &c. Bac. Ab. Baron and Feme, L. See, generally, as, to parties to actions,, 3 United States Dig. Pleading, I, and Promissory Note, XVI.; Bouv. Inst. Index, h. t.
PARTIES TO A SUIT IN EQUITY. The person who seeks a remedy in chancery by suit, commonly called a plaintiff, and the person against whom the remedy is sought, usually denominated the defendant, are the parties to a suit in equity.
2. It is of the utmost importance, that there should be proper parties; and therefore no rules connected with the science of equity pleading, are so necessary to be attentively considered and observed, as those which relate to the persons who are to be made parties. to a suit, for when a mistake in this respect is discovered at the hearing of the cause, it may sometimes be attended with defeat, and will, at least, be followed by delay and expense. 3 John. Ch. R. 555; 1 Hopk. Ch. R. 566; 10 Wheat. R. 152.
3. A brief sketch will be here given by considering, 1. Who may be plain-tiffs. 2. who may be made defendants. 3. The number of the parties.
4. - §1. Of the plaintiff. Under this head will be considered who may sue in equity: and,
5. - 1. The government, or as the style is in England, the crown) may sue in a court of equity, not only in suits strictly on behalf of the government, for its own peculiar rights and interest, but also on behalf of the rights and interest of those, who partake of its prerogatives, or claim its peculiar protection. Mitf. Eq. Plead. by Jeremy, 4, 21-24; Coop. Eq. 21, 101. Such suits are usually brought by the attorney general.
6.- 2. As a general rule all persons, whether natural or artificial, as corporations, may sue in equity; the exceptions are persons who are not sui juris, as a person not of full age, a feme covert, an idiot, or lunatic.
7. The incapacities to sue are either absolute, or partial.
8. The absolute, disable the party to sue during their continuance; the partial, disable the party to sue by himself alone, without the aid of another. In the United States, the principal ab solute incapacity, is alienage. The alien, to be disabled to sue in equity, must be an alien enemy, for an alien friend may sue in chancery. Mitf. Equity, PI, 129; Coop. Equity Pl. 27. But still the subject matter of the suit may. disable an alien to sue. Coop. Eq. Pl. 25; Co. Lit. 129 b. An alien sovereign or an alien corporation may maintain a suit in equity in this country. 2 Bligh's Rep. 1, N. S.; 1 Dow. Rep.. 179, N. S.; 1 Sim. R. 94; 2 Gall. R. 105; 8 Wheat. Rep. 464; 4 John. Ch. Rep. 370. In case if a foreign sovereign, he must have been recognized by the government of this country before he can sue. Story's Eq. pl. §55; 3 Wheat. Rep. 324; Cop. Eq. Pl. 119
9. Partial incapacity to sue exists in the case of infants, of married women, of idiots and lunatics, or other persons who are incapable, or are by law specially disabled to sue in their own names; as for example, in Pennsylvania, and some other states, habitual drunkards, who are under guardianship. 10.-1. An infant cannot, by himself, exhibit a bill, not only on account of his want of discretion, but because of his inability to bind himself for costs. Mitf. Eq. Pl. 25. And when an infant sues, he must sue by his next friend. Coop, Eq. 27; 1 Sm. Chan. Pl. 54. But as the next friend may sometimes bring a bill. from improper motives, the court will, upon a proper application, direct the master to make inquiry on this subject, and if there be reason to believe it be not brought for the benefit of the infant, the proceedings will be stayed. 3 P. Wms. 140; Mitf. Eq. Pl. 27; Coop. Eq. Pl. 28.
11. - 2. A feme covert must, generally, join with her hushand; but when he has abjured the realm, been transported for felony, or when he is civilly dead, she may sue as a feme sole. And when she has a separate claim, she may even sue her hushand, with the assistance of a next friend of her own selection. Story's Eq. Pl. §61; Story's Eq. Jur. §1368; Fonbl. Eq. b. 1, c. 2, §6, note p. And the hushand may himself sue the wife.
12. - 3. Idiots and lunatics are generally under the guardianship of persons who are authorized to bring a suit in the idiot's name, by their guardian or committee.
13. - §2. Of the defendant. 1. In general, those persons who may sue in equity, may be sued. Persons sui juris may defend themselves, but those under an absolute or partial inability, can make defence only in a particular manner. A bill may be exhibited against all bodies politic or corporate, against all persons not laboring under any diability, and all persons subject to such incapacity, as infants, married women, and lunatics, or habitual drankards.
14. - 2. The government or the state, like the king in England, cannot be sued. Story, Eq. Pl. §69.
15. - 3. Bodies politic or corporate, like persons sui juris, defend a suit by themselves.
16. - 4. Infants institute a suit, as has been seen, by next friend, but they must defend a suit by guardian appointed by the court, who is usually the nearest relation, not concerned in interest, in the matter in question. Mitf. Eq. Pl. 103; Coop. Eq. Pl. 20, 109; 9 Ves. 357; 10 Ves. 159; 11 Ves. 563; 1 Madd. R. 290; Vide Guardian, n. 6.
17. - 5. Idiots and lunatics defend by their committees, who, in ordinary circumstances, are appointed guardians ad litem, for that purpose, as a matter of course. Mitf. Eq. Pl. 103; Coop. Eq. Pl. 30, 32; Story's Eq. Pl. SS70; Shelf on Lun. 425.; and vide 2 John. Ch. R. 242, where, Chancellor Kent held, that the idiot need not be made a party as defendant to a bill for the payment of his debts, but his committee only. When the idiot or lunatic has no committee, or the latter has an interest adverse to that of the lunatic or idiot, a guardian ad litem will be appointed Mitf. Eq. Pl. 103;; Story's Eq. Pl. §70.
18. - 6. In general, a married woman, when she is sued, must be joined with her hushand, and their answer must also be joint. But there axe exceptions to this rule in both its requirements.
19. - 1. A married woman may be made a defendant, and answer as a feme sole, in some instances, as when her hushand is plaintiff in the suit, and sues her as defendant, and from the like necessity, when the hushand is an exile or has abjured the realm, or has been transported under a criminal sentence, or is an alien enemy. She may be sued and answer as a feme sole. Mitf. Eq. Pl. 104, 105; Coop. Eq. Pl. 30.
20. - 2. When her hushand is joined, or ought to be joined, she cannot make a separate defence, without a special order of court. The following are instances where such orders will made. When a married woman claims as defendant in opposition to her hushand, or lives separate from him, or disapproves of the defence he wishes her to make, she may obtain an order of court for liberty to answer, and defend the suit separately. And when the hushand is abroad, the plaintiff may obtain, an order that she shall answer separately; and, if a woman obstinately refuses to join a defence with her hushand, the latter may obtain an order to compel her to make a separate answer. Mitf. Eq: Pl.: 104; Coop. Eq. Pl. 30; Story's Eq 71.
21. - 3. As to the number of parties. It is a general rule that every person who is at all interested in the subject-matter of the suit, must be made a party. It is, the constant aim of a court of equity, to do complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, to make the performance of the order of the court perfectly safe to those who are compelled to obey it, and, to prevent future litigation. For this purpose, all persons materially interested in the subject ought to be parties to the suit, plaintiffs or defendants, however numerous they may be, so that a complete decree may be made binding on those parties. Mitford's Eq. Pl. 144; 1 John. Ch. R. 349; 9 John. R. 442; 2 Paige's C. R. 278; 2 Bibb, 184; 3 Cowen's R. 637; 4 Cowen's R. 682 9 Cowen's R. 321; 2 Eq. Cas. Ab. 179; 3 Swans. R. 139. When a great number of individuals are interested as in the instance of creditors seeking an account of the estate of their deceased debtor for payment of their demands, a few suing on behalf of the rest may substantiate the suit, and the other creditors may come in under the decree. 2 Ves. 312, 313. In such case the bill should expressly show that it is fifed as well on the behalf of other members as those who are really made the complainants; and the parties must not assume a corporate, name, for if they assume the style of a corporation, the bill cannot be sustained. 6 Ves. jr. 773; Coop. Eq. Pl. 40; 1 John. Ch. R. 349; 13 Ves. jr. 397 16 Ves. jr. 321; 2 Ves. sen. 312 S. & S. 18; Id. 184. In some cases, however, when all the persons interested are, not made parties, yet, if there be such privily between the plaintiffs and defendants, that a complete decree may be made, the want of parties is not a cause of demurrer. Mitf. El q. Pl. 145. Vide Calvert on Parties to Suits in Equity; Edwards on Parties to Bills in Chancery; Bouv Inst. Index, h. t.


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