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.
No comments:
Write comments