from
Bouvier's Law Dictionary, Revised 6th Ed (1856)
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
plaintiffs. 2. who may be made defendants. 3. The number of the parties.
4.-Sec. 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. Sec. 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 husband; 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 husband, with the assistance of a next friend of her own
selection. Story's Eq. Pl. Sec. 61; Story's Eq. Jur. Sec. 1368; Fonb. Eq.
b. 1, c. 2, Sec. 6, note p. And the husband 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.-Sec. 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 disability, and all
persons subject to such incapacity, as infants, married women, and lunatics,
or habitual drunkards.
14.-2. The government or the state, like the king in England, cannot
be sued. Story, Eq. Pl. Sec. 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. Sec. 70.
18.-6. In general, a married woman, when she is sued, must be joined
with her husband, 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 husband is plaintiff in the suit, and
sues her as defendant, and from the like necessity, when the husband 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 husband 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 husband, 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
husband 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
husband, 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.