| slovo | definícia |
parties
(encz) | parties,politické strany n: pl. Zdeněk Brož |
parties
(encz) | parties,skupiny n: pl. Zdeněk Brož |
parties
(encz) | parties,strany n: pl. Zdeněk Brož |
parties
(encz) | parties,večírky n: pl. Zdeněk Brož |
Parties
(gcide) | Party \Par"ty\ (p[aum]r"t[y^]), n.; pl. Parties
(p[aum]r"t[i^]z). [F. parti and partie, fr. F. partir to
part, divide, L. partire, partiri. See Part, v.]
1. A part or portion. [Obs.] "The most party of the time."
--Chaucer.
[1913 Webster]
2. A number of persons united in opinion or action, as
distinguished from, or opposed to, the rest of a community
or association; esp., one of the parts into which a people
is divided on questions of public policy.
[1913 Webster]
Win the noble Brutus to our party. --Shak.
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The peace both parties want is like to last.
--Dryden.
[1913 Webster]
3. A part of a larger body of company; a detachment;
especially (Mil.), a small body of troops dispatched on
special service.
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4. A number of persons invited to a social entertainment; a
select company; as, a dinner party; also, the
entertainment itself; as, to give a party.
[1913 Webster]
5. One concerned or interested in an affair; one who takes
part with others; a participator; as, he was a party to
the plot; a party to the contract.
[1913 Webster]
6. The plaintiff or the defendant in a lawsuit, whether an
individual, a firm, or corporation; a litigant.
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The cause of both parties shall come before the
judges. --Ex. xxii. 9.
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7. Hence, any certain person who is regarded as being opposed
or antagonistic to another.
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If the jury found that the party slain was of
English race, it had been adjudged felony. --Sir J.
Davies.
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8. Cause; side; interest.
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Have you nothing said
Upon this Party 'gainst the Duke of Albany? --Shak.
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9. A person; as, he is a queer party. [Now accounted a
vulgarism.]
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Note: "For several generations, our ancestors largely
employed party for person; but this use of the word,
when it appeared to be reviving, happened to strike,
more particularly, the fancy of the vulgar; and the
consequence has been, that the polite have chosen to
leave it in their undisputed possession." --Fitzed.
Hall.
[1913 Webster]
Party jury (Law), a jury composed of different parties, as
one which is half natives and half foreigners.
Party man, a partisan. --Swift.
Party spirit, a factious and unreasonable temper, not
uncommonly shown by party men. --Whately.
Party verdict, a joint verdict. --Shak.
Party wall.
(a) (Arch.) A wall built upon the dividing line between
two adjoining properties, usually having half its
thickness on each property.
(b) (Law) A wall that separates adjoining houses, as in a
block or row.
[1913 Webster] |
PARTIES
(bouvier) | 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.-Sec. 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. 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 to his 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; Fonb. Eq. b. 1 c. 2;
Sec. 4, note b; 3 Burr. 1794; 1 Mod. 25; Str. 937; Louis. Code, article
1778.
8.-Sec. 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 husband 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
husband, may be enforced by the husband 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 husband by any of her contracts. The liability of a husband 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, Sec. 2.
11.-Sec. 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.
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| | podobné slovo | definícia |
knowledgeable parties
(mass) | knowledgeable parties
- informované strany |
high contracting parties
(encz) | high contracting parties,vysoké smluvní strany |
loans to related parties
(encz) | loans to related parties,půjčky a úvěry spřízněným
osobám [ekon.] přehled o peněžních tocích/cash flow statement Ivan Masár |
parties
(encz) | parties,politické strany n: pl. Zdeněk Brožparties,skupiny n: pl. Zdeněk Brožparties,strany n: pl. Zdeněk Brožparties,večírky n: pl. Zdeněk Brož |
Pourparties
(gcide) | Pourparty \Pour`par"ty\, n.; pl. Pourparties. [See
Purparty.] (Law)
A division; a divided share.
[1913 Webster]
To make pourparty, to divide and apportion lands previously
held in common.
[1913 Webster] |
JOINDER OF PARTIES TO ACTION
(bouvier) | JOINDER OF PARTIES TO ACTIONS. It is a rule in actions ex contractu that all
who have a legal interest in the contract, and no others, must join in
action founded on a breach of such contract; whether the parties are too
many or too few, it is equally fatal. 8 S. & R. 308: 4 Watts, 456; 1 Breese,
286; 6 Pick. 359. 6 Mass. 460; 2 Conn. 697; 6 Wend. 629; 2 N. & M. 70; 1
Bailey, 13; 5 Verm. 116; 3 J. J. Marsh. 165; 16 John. 34; 19 John. 213; 2
Greenl. 117; 2 Penn. 817.
2. In actions ex contractu all obligors jointly and not severally
liable, and no others, must be made defendants. 1 Saund. 153, note 1; 1
Breese, 128; 11 John. 101; J. J. Marsh. 38; 2 John. 213.
3. In actions ex. delicto, when an injury is done to the property of
two or more joint owners, they must join in the action. 1 Saund. 291, g; 11
Pick. 269; 12 Pick. 120; 7 Mass. 135; 13 John. 286.
4. When a tort is of such a nature that it may be committed by several,
they may all be joined in an action ex delicto, or they may be sued
severally. But when the tort cannot be committed jointly, as, for example,
slander, two or more persons cannot be sued jointly, although they may have
uttered the same words. 6 John. 32. See, generally, 3 Bouv. Inst. n. 2648,
et seq.
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PARTIES
(bouvier) | 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.-Sec. 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. 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 to his 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; Fonb. Eq. b. 1 c. 2;
Sec. 4, note b; 3 Burr. 1794; 1 Mod. 25; Str. 937; Louis. Code, article
1778.
8.-Sec. 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 husband 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
husband, may be enforced by the husband 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 husband by any of her contracts. The liability of a husband 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, Sec. 2.
11.-Sec. 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.
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PARTIES TO A SUIT IN EQUIT
(bouvier) | 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.
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PARTIES TO ACTION
(bouvier) | 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.
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