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. Sec. 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:
Sec. 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.-Sec. 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 Vern. 123; 2 Vern. 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, the 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.-Sec. 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 recovery on such contract is sought, the action must be in the name of the assignor for the use of the assignee.
8.-Sec. 4. When one or more of several obligees, &c., is dead. When one or more of several obligees, covenantees, partners or others, having 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.-Sec. 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.-Sec. 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.-Sec. 7. In case of marriage. This part of the subject will be considered with reference to those cases. 1st. When the husband and wife, must join. 2d. When the husband 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 husband or wife. 6th. When a woman marries, lis pendens.
12.-1. To recover the chose in action of the wife, the husband 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 husband 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 husband being only suspended, the disability may be removed, in one case, by a pardon, and, in the other, by the husband'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 husband and wife in consideration of such debt, they may join, or the husband 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 husband 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 husband 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 husband, she may sue on all contracts entered into with her before coverture, which remain unsatisfied; and she may recover all 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.-Sec. 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. Sec. 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: Sec. 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. Hamm. 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.-Sec. 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 remain 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 Fonb. Eq. 359, note y; Hamm. N. P. 136.
23.-Sec. 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.-Sec. 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 defendant. 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 husband must also be a party. Cro. Jac. 519.
25.-Sec. 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.-Sec. 7. In case of marriage. This head will be divided by considering, 1. When the husband and wife must be joined. 2. When the husband must be sued, alone. 3. When the wife must be sued alone. 4. When the husband 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 husband 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 husband 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 Bing. R. 60. But if the husband 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 husband, 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 husband is civiliter mortuus. 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 husband 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 husband, in consequence of some new consideration, undertakes to pay a debt of the wife dum sola, he may be sued alone, or the husband 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 husband, 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 lis 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.-Sec. 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.-Sec. 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.-Sec. 3. In general, rights or causes of action arising ex delicto are not assignable.
39.-Sec. 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.-Sec. 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.-Sec. 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.-Sec. 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 husband in the suit; when the injury is such that the husband 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 husband has received some special damages, the husband must sue alone. 1 Lev. 140; 1 Salk. 119; 3 Mod. 120.
43.-Sect. 2. Of the defendants. Sec. 1. Between the original 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 and 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.-Sec. 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.-Sec. 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, Nuisance, 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.-Sec. 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.-Sec. 6. In case of marriage. Marriage does not affect or change the liabilities of the husband 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 husband 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.