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simply confined to a general definition of the parties, who, under the former practice, might or might not sue, or be sued; with a notice in detail of the different provisions of the Code in relation thereto, and of the decided cases with reference to those provisions. The ancient nomenclature of plaintiff and defendant, is expressly oontinued by section 70.
This chapter naturally divides itself into two separate and independent branches. First, as to parties plaintiffs, and second, as to parties defendants; which will be accordingly considered seriatim.
With reference to the plaintiffs in an action, the old equitable doctrine still prevails on the following, amongst many other subjects, which will be found fully treated of in the works before referred to.
An action upon a joint contract must be brought in the names of all the parties thereto, or in those of the survivors, if the cause of action survive; but if the contract be of a several or severable nature, any of the parties, or the representatives of any, who are in the same interest, may sue either in conjunction or severally, at their election.
Aliens in general are competent to sue ; but see observations in a previous part of the work as to the jurisdiction of the federal courts. An alien enemy,
whilst he remains such, is not: nor does the statute run against him, sec. 103. A criminal, while under sentence, is in like manner disqualified from suing.
Corporations and joint-stock companies may sue or be sued by the names and under the forms prescribed in the laws authorizing their incorporation. See as to the latter, laws of 1849, C. 258.
In cases where real estate of a deceased party is in question, the heir is the party entitled to sue as to the realty, and the executor or administrator in respect of rents become due, or damages accrued thereto, during the life of the deceased.
In all cases arising out of the personal estate of a deceased party, the executor or administrator is, of course, the
proper party to sue; so also in an action to recover compensation for death by a wrongful act, under laws of 1849, c. 256.
Where an action is brought in respect of a joint wrong, each party injured must sue separately, except where the injury is one to partners, as such, or the action is for slander of title.
In all cases of agency, the principal must sue, and not the agent, unless the agent is personally interested.
The committee of a lunatic, idiot, or habitual drunkard, may sue in all cases where he is authorized by statute-see laws of 1845, c. 112, sec. 2; 2 R.S., third edition, p. 115; but, in all other cases where this authority is not expressly given by statute, the action must be brought in the name of the lunatic or idiot, by his next friend, or, it would seem, in the case of an habitual drunkard, by that party himself. See M'Killip v. M'Killip, 8 Barb. S. C. R. 552.
Before a committee can sue as such, he must obtain the authority of the court.
Lunatics, idiots, and married women must sue by their next friend, and infants by their guardians, in all cases, except those specially provided for by statute.
A husband may sue in respect of an injury to his wife, or a parent, in respect of one to his child or servant,“ per quod consortiam" in the former, or, “per quod servitium, amisit," in the latter instance.
The state is competent to sue by its proper officer, and foreign states or potentates labour under no disqualification as such.
Copartners must sue jointly, except in reference to a partition, but tenants in common may suo either jointly or severally at their election.
In cases of limited partnership, under the provisions of Part II. R. S., chap. IV. title I. ; 1 R. S. 763 to 768, the acting general partners, alone are the proper plaintiffs.
Receivers, sheriffs, and all other parties exercising ministerial powers under the special appointment of the courts, in order to the realization of property, or the collection of its proceeds; may sue, as such, in their own names, or in the names of the parties for whom they exercise those functions.
A plaintiff, without adequate means, may sue in formâ pau. peris under the provisions of the revised statutes before referred to.
We now come to the different matters, in respect of which the Code has either altered or defined the previously existing rules upon the subject.
The first provision to be noticed is that in section 113, under which, with the exception of actions by executors or trustees as such, every action must be brought in the name of the real
party in interest : establishing, as before stated, the equitable doctrine as to parties, in contradistinction to that formerly prevailing at common law.
It will be seen that, by this section, the old common law doctrine, as to a chose in action being incapable of assignment, is done away with, and the assignee is now the proper party, and the only proper party, to sue thereupon, in all cases arising out of contract. By the last amendment, however, the assignment of causes of action arising out of tort is prohibited for the future. In the Code of 1849 no such provision was contained, and in Kellogg v. Church, 3 C. R. 53, it was held that such a cause was assignable, and that an action might be maintained by the assignee ; but of course this proposition is now no longer law. It would seem from the case of Hall v. Robinson, 2 Comst. 293, that, though a right of action in trover for a chattel is not assignable, a subsequent purchaser of the chattel itself may reclaim, and bring an action to recover it, in his own name.
In The Camden Bank v. Rogers, 4 How. 63, 2 C. R. 45, it was held that a bank might sue in its own name, as real holders of a note made payable to their cashier's order, and never regularly endorsed by him. In Lane v. The Columbus Insurance Company, 2 C. R. 65, the same principle was carried still further, and, although the policy there in question, was effected by an agent in his own name, and with a clause that the loss, if any, was to be paid to him (the agent) “only,”—the principal was, nevertheless, held to be entitled to maintain an action upon it. In Bos v. Seaman, 2 C. R. 1, the judge “inclined to the belief" that, notwithstanding these provisions, bonds taken in the name of the people of the state ought still to be so prosecuted, and not in the name of the real party in interest ; but this opinion is so doubtfully pronounced, and appears so contrary to the general spirit of the measure, that it can be scarcely considered as of positive authority.
It will be seen that, by section 112, the rights of the opposite party to interpose any defence, by set off or otherwise, in respect of a chose in action sued upon by the assignee, are made the subject of express reservation. In the event of any defence of this nature being set up, it would seem that the assignor ought then to be made a party by amendment, in order that the controversy between him and the original defendant may be brought to an issue ; though otherwise it would be neither ne
cessary nor proper to include him in the action, inasmuch as, under ordinary circumstances, he neither seeks relief himself, nor is relief sought against him. The law, as it previously stood, in respect to the exemption from this restriction, of negotiable promissory notes or bills transferred bonà fide and before maturity, is expressly declared at the end of the section.
By sec. 113, the previous rules, with reference to actions by executors or administrators, and trustees of express trusts, are expressly enacted, and they may now sue, as before, in all cases, without joining their cestui que trust in the action. An administrator, it would seem, may sue on a promissory note given for part of his intestate's estate, either personally, or in his representative capacity, at his election (Bright v. Currie, 10 L. 0. 104). By the recent amendments the utmost extent of signification is attributed to the term “trustee of an express trust;" and all parties, with whom or in whose name a contract is made for the benefit of another, are expressly declared to be included within it. This amendment is in accordance with the views previously laid down in Grinnell v. Schmidt, 2 Sandf. S.C.R. 706; 3 C. R. 19; 8 L. O. 197, on the subject of mercantile factors, or agents, doing business for others, but in their own names: and also in Ward v. Whitney, 3 Sandf. S. C. R. 399, with reference to the managing owner of a vessel, where another party held a mere executory contract, for the purchase of an interest therein.
The law on the subject of suits brought by the committees of lunatics, &c., in their own names, has been before referred to. Receivers, under sections 244 and 299 of the Code, and Rule 81 of the supreme court, and sheriffs, under sec. 232, also possess authority to sue in their own names; though they may likewise sue in the names of the parties for whom they act, or may delegate the right to sue, to such parties, and may therefore be considered as coming within the spirit of section 113.
It by no means follows, however, that, because parties answering the general description of trustees of an express trust, under the extended signification given to the term by the recent amendments, may sue in their own names, the real parties in interest may not also sue in many of such cases; and, in the event of any conflict between two suits of this nature occurring, proceedings instituted by the latter might, in all probability, obtain the preference. The case of a party for whose benefit a contract has been made, may be mentioned as a type of numberless cases of this description that might arise in practice. The above-cited cases of The Camden Bank v. Rogers, and Lane v. The Columbus Insurance Company, are, in fact, express author- . ity to this effect.
The next point that arises for consideration is with respect to the interests of married women: the provisions of the Code of 1851 on which subject, are as follows:
$ 114. When a married woman is a party, her husband must be joined with her, except that,
1. When the action concerns her separate property, she may sue alone.
2. When the action is between herself and her husband, she may sue or be sued alone.
But, where her husband cannot be joined with her, as herein provided, she shall prosecute or defend by her next friend.
The above clause is evidently imperative as to the joinder of the husband as co-plaintiff with the wife, in whatever character she may sue, except under the circumstances specially provided for.
The last clause in this section is a recent insertion, made doubtless in consequence of a grave conflict of opinion which had arisen between the superior and supreme courts, and differ. ent branches of the latter, as to whether, in cases of controversy between a wife and her husband, the wife, in the absence of any positive statutory provision enabling her to sue in her own name alone, as in the case of absolute divorce, is or is not competent to do so, without the intervention of a next friend.
The former conclusion, i. e. that she may so sue, was come to in the cases of Tippel v. Tippel, 4 How. 346 ; 3 C. R. 40; Newman v. Newman, 3 C. R. 183; Anon. 3 C. R. 18. Shore v. Shore, 2 Sandf. S. C. R. 715; 8 L. O. 166 (the same case as the last), and was acted upon without question in White v. White, 4 How. 102.
The contrary, i. e. that she cannot so sue, is maintained in Coit v. Coit, 4 How. 232; 2 C. R. 94. Affirmed on appeal, 6
, How. 53; 3 C. R. 23; in Forrest v. Forrest, 3C. R. 254, and in Cook v. Rawdon, 6 How. 233. It will have been seen that the latter view has prevailed, and that, in all cases where her husband cannot be joined with her, the wife must now prosecute or defend by her next friend, Heller v. Heller, 6 How. 194;1 C. R.