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 plain-tiffs. 2. who may be made defendants. 3. The number of the parties.
4. - §1. Of the plaintiff. Under this head will be considered who may sue in equity
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. §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. §61; Story's Eq. Jur. §1368; Fonbl. Eq. b. 1, c. 2, §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. - §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 diability, and all persons subject to such incapacity, as infants, married women, and lunatics, or habitual drankards.
14. - 2. The government or the state, like the king in England, cannot be sued. Story, Eq. Pl. §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. §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.