from
Bouvier's Law Dictionary, Revised 6th Ed (1856)
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.