or injury; as to the place where they are to be tried, they are local or transitory; and as to the object pursued, they are in personam or in rem.

2646. An action ex contractu is one which arises on a contract, and is brought for the recovery of damages, or of a thing which belongs to the plaintiff. These actions are account, assumpsit, covenant, debt, and detinue. In Connecticut and Vermont there is an action used, which is peculiar to those states, called an action of book debt."

2647. Personal actions, in form ex delicto, which are principally for the redress of wrongs and injuries unconnected with contract, are case, trover, detinue, replevin, and trespass.

2648. A local action is one in which the venue must still be laid in the county in which the cause of action actually arose. The present locality of action is founded, in some cases, on common law principles, and, in others, on positive enactments of statute law. Those which continue local by the common law are:

All actions in which the subject or thing to be recovered is in its nature local. Of this class are real actions, actions of waste, when brought on the statute of Gloucester, to recover with damages the place wasted, or the locus in quo, and actions of ejectment. All these are local, because they are brought to recover the seisin or possession of lands or tenements, which are local subjects.

Various actions, which do not seek the direct recovery of lands and tenements, are also local by the common law, because they arise out of some local subject, or are in violation of some local right or interest. Within this class of cases are many actions in which only pecuniary damages are recoverable; such are the common law actions of waste and trespass quare clausum freigit; and so are trespass on the case, for injuries affecting things real; as, nuisances to houses or lands; disturbance of right of way; obstruction or diversion of water courses, and the like. The action of replevin also, though it lies for damages only, and does not arise out of any violation of a local right, is nevertheless local. The reason of its locality is the necessity of giving a local description of the taking complained of.9

2649. Transitory actions are those personal actions which seek nothing more than the recovery of money or personal chattels, whether they sound in contract or in tort; 10 because actions of this kind are, in most instances, founded on the violation of rights which, in contemplation of law, have no locality. And it is true, as a general position, that actions ex delicto, in which a mere personalty is recoverable, are, by the common law, transitory, except when founded upon, or arising out of, some local subject.11

The venue in a transitory action may be laid in any county which the plaintiff may prefer.12

2650. An action in personam is one where the proceedings are against the person in contradistinction to those which are against specific things or in rem. An action in rem is one instituted against the thing in contradistinction to personal actions, which are said to be in personam.

6

In New York, Louisiana, California, Massachusetts, Missouri, Nevada, Minnesota, Kansas, Indiana, Wisconsin, Ohio, Oregon, Iowa, Kentucky, Tennessee, Georgia, and perhaps some other states, the forms of actions mentioned in the text have been abolished. The more simple division of actions on contracts, and actions to redress injuries, has been adopted.

7 Gould, Plead. c. 3, 2 105; 1 Chitty, Plead. 271.

81 Saund. 347, note 1. But in Pennsylvania replevin is a transitory action. Powell v. Smith, 2 Watts, Penn. 126.

9 Gould, Plead, c. 3,

111.

11 Gould, Plead. c. 3, 112.

12 Bacon, Abr. Actions Local, A (a).

10 Comyn, Dig. Actions, N, 12.

One of the most striking diversities between actions in personam and actions in rem is, that the former follow the person liable, and the latter follow the thing which is their object, without reference to the person of the possessor.13

13

Courts of admiralty enforce the performance of a contract by seizing into their custody the very object of hypothecation; for, in these cases, the parties may be not personally bound, and the proceedings confined to the thing in specie.14

There are cases, however, when the remedy is either in personam or in rem, at the choice of the plaintiff. Seamen, for example, may proceed against the ship or cargo for their wages, and this is the most expeditious mode; or they may proceed against the master and owners."

15

2651. Mixed actions are such as have the characteristics, in some degree, of both real and personal actions, and, therefore, are properly reducible to neither of them, being brought for the specific recovery of land, tenements, or hereditaments, and for damages sustained for injury in respect to such property.16 Of this kind are ejectment and waste.

2652. The plaintiff, called in civil law the actor and in Scotch law the pursuer, is the party invoking the assistance of the court to enforce some right or administer the remedy. The defendant in civil law sues, and in the Scotch law the defendant is the party against whom the proceedings are directed. Having examined the constitutions and powers of the court and the general nature of actions, it will be natural, now, to inquire into the qualities or rights which persons have to bring action and who may defend them.

2653. Those persons who institute actions for the recovery of their rights, and those against whom they are instituted, are called parties to actions. In the different forms of actions a variety of names is applied to the party suing and the party proceeded against. In personal and mixed actions at common law the former is called the plaintiff, the latter the defendant. In real actions we have demandant and tenant, in admiralty, libellant and respondent, or where the proceeding is in rem, the claimant, in proceedings for divorce, libellant and respondent, in equity, plaintiff or complainant and defendant, in criminal proceedings, the king, people, state, or commonwealth and prisoner, the prosecutor being the party on whose complaint the proceedings are instituted, in appeals, appellant and respondent, on writs of error, plaintiff in error and defendant in error as distinguished from plaintiff below and defendant below, in certiorari, relator and defendant, in Scotch law, pursuer and defender, in civil law, actor and reus. The term parties includes all persons who are directly interested in the subject matter in issue, who have a right to control the proceedings, make a defence or appeal from the judgment. Persons not having these rights are regarded as strangers to the cause."7

2564. It is evident that no one can recover in an action if he has no right, and no recovery can be had against one who is not bound by his obligation or liable for a wrong. The party who institutes an action must therefore have a right, and he against whom it is instituted must be liable to the plaintiff. It is of the utmost importance, then, in bringing actions to have proper parties; for, however just and meritorious the cause of action may be, if a mistake has been made in the selection of wrong persons either as plaintiffs or defendants, or by

13 La Vengeance, 3 Dall. 297.

14 2 Browne, Civ. and Adm. Law, 98.

15 4 Burr. 1944; 2 Browne, Civ. and Adm. Law, 396.

16 Coke, Litt. 284; Stephen, Plead. 3; Comyn, Dig. Actions, D, 4.

17 20 How. St. Tr. 538, n.

including too many or too few persons as parties, the plaintiff may in general be defeated.18

2655. Actions are naturally divided into those which arise upon contracts and those which do not, but accrue to the plaintiff from some wrong or injury committed by the defendant.

We shall consider, then, first, the subject of parties to actions arising upon contracts, and, second, the subject of parties to actions arising from injuries and wrongs for which the defendant is responsible unconnected with contracts, and in each case first of the plaintiffs in such actions and next of the defendants.

2656. It will be convenient to consider successively how and by whom an action should be brought between the original parties, when there is but one plaintiff; when there are several plaintiffs; when the plaintiff, if a woman, has been married since the making of the contract; when one or more of the obligees who had a joint interest is dead; when the sole obligee, or, if there are more than one, when all the obligees, are dead; when the contract has been assigned voluntarily; when the obligee has become bankrupt or insolvent; when the plaintiff is a foreign government; and when the plaintiff is a corporation.

2657. In general, as civil actions are brought to repair some loss sustained, the party to whose use the fruits of the suit are to be appropriated and whose interests have in fact been impaired should complain.19 This is perhaps the case in actions ex delicto, but the rule is not universal with regard to breaches of contract. In making a choice of a party plaintiff the suitor should be guided by considering, not whose losses are to be repaired, but with whom the agreement has been made, for he alone can enforce the performance and complain when the contract has been broken. The suit must be brought in the name of the party in whom the legal interest in such contract is vested; for courts of law consider only legal rights, and courts of equity are guided by other rules when a question about an equitable right arises by which they supersede legal rules.

2658. Hence no action at law lies by the cestui que trust against the trustee, and the latter may set up the legal estate against the former; 20 for where there are two kinds of estates in different persons, the one equitable and the other legal, the person having the equitable estate must call in aid the legal estate before he can recover in a court of law." When, therefore, a bond is given to Peter in trust for Paul, the former must sue thereon, although the latter has an equity to use his name.22 But when there is no trust, and the obligation is made with one agreeing to pay money to another, as, when a promise not under seal was with A to pay B a sum of money, the latter may sustain an action.23

18 Morse v. Chase, 4 Watts, Penn. 456; McIntosh v. Long, 1 Penn. 274; Conolly v. Cottle, 1 Ill. 286; Baker v. Jewell, 6 Mass. 460; Dob v. Halsey, 16 Johns. N. Y. 34; Ehle v. Purdy, 6 Wend. N. Y. 629.

19 Barbour, Part. 22; Hammond, Part. 32.

20 Milcham v. Eicke, 3 Mees. & W. Exch. 407; Pardoe v. Price, 6 id. 458; Doe v. Wroot, 5 East, 137. In Pennsylvania, however, a cestui que trust may maintain ejectment; and where the action proceeds upon some ground beyond the relation between the parties, as, where a trustee admits a balance of money due, an action at law may be maintained by the cestui que trust against him. Roper v. Holland, 4 Nev. & M. 668; 3 Ad. & E. 99; 1

Harr. & W. 167.

21 Doe d. Shewen, v. Wroot, 5 East, 137.

22 Offley v. Warde, 1 Lev. 235; Saunders v. Filley, 12 Pick. Mass. 554; Watson v. Cambridge, 15 Mass. 286; Weathers v. Ray, 4 Dan. Ky. 474.

231 Chitty, Plead. 4; 3 Bos. & P. 149, n. a; Felton v. Dickinson, 10 Mass. 287; Cabot v. Hasgins, 3 Pick. Mass. 83. In New York, every action must be prosecuted in the name of the party in interest, except in the cases of an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, without joining with him the persons for whose benefit the suit is brought. Code of Procedure, ?? 91, 93.

24

2659. It is a rule that when a deed is inter partes, a stranger cannot sue upon a covenant therein, though for his benefit. Every deed is in one sense inter partes, since none can be valid to which there are not proper sides or parties. But this expression has a technical sense, in which alone it is here used; it means an agreement professing in the outset, and before the stipulations are introduced, to be made between such and such persons. When the deed is not inter partes, he may sue whether it be indented or not.25

2660. When a man covenants with two or more persons, using words which prima facie import a joint covenant, but which nevertheless admit of being construed severally, there, if the interest and cause of action of each of the covenantees appears on the face of the deed to be several, the words will be taken disjunctively, and the covenant will be construed to be a several covenant with each, and each covenantee may bring an action for his several damages; 26 therefore, when a covenant, though joint in its terms, was for the payment of an annuity to each of two persons, it was held that the interests of the covenantees were several, and that they should sue separately on the covenant."

2661. When an action is brought on a simple contract, whether oral or written, the plaintiff should be the person from whom the consideration actually moved. And when there are several parties, and both the consideration and the beneficial interest are several, then the contract is several to each. Where, therefore, three gave a bond binding themselves, jointly and severally, to indemnify another, and two paid the damnification, it was held they could not join in suing the third for contribution. But although the consideration has moved separately from each, still if the legal interest is joint, the legal right is in all, and they must be joined as plaintiffs.30 In such case any one of the obligees, payees, or the assignee of one of them, may sue in the name of all without their consent.31

29

When a note was made payable to A or B, it was held that A might maintain an action in his own name.3

33

32

2662. Tenants in common of land are in general entitled to the rent, each for his share, so that each may make a separate distress or maintain a separate action. But where they have made a joint demise, unless the rent has been reserved to each for his share separately, they must join in an action for its recovery.34

2663. When the contract is entered into by an agent, the principal has, in

"Coke, Litt. 231; Spencer v. Field, 10 Wend. N. Y. 87; Tyler v. McLean, 10 id. 374. 25 1 Chitty, Plead. 4. Before, 2008.

Lane v. Drinkwater, 1 Crompt. M. & R. Exch. 612. "Withers v. Bircham, 3 Barnew. & C. 254; 8 Mod. 166.

28 Crow v. Rogers, 1 Strange, 592. See Archer v. Dunn, 2 Watts & S. Penn. 237; Union India Rubber Co. v. Tomlinson, 11 N. Y. 364.

29 Kelby v. Steel, 5 Esp. 194; Brand v. Boulcott, 3 Bos. & P. 235; Lombard v. Cobb, 14 Me. 222; Boggs v. Custin, 10 Serg. & R. Penn. 211; Graham v. Green, 4 Hayw. Tenn. 188; Williams v. Alley, Cooke, Dist. Ct. 257; Vaughan v. Campbell, Mart. & Y. Tenn. 63; Gould v. Gould, 6 Wend. N. Y. 263; 8 Cow. N. Y. 168; Doremus v. Selden, 19 Johns. N. Y. 213. In a case where the sureties paid the debt jointly, by giving a joint note, they were allowed to join in an action against the principal. Appleton v. Bascom, 3 Metc. Mass. 169; Chandler v. Brainard, 14 Pick. Mass. 285. In Ohio, by a statute, when a joint judgment is recovered against sureties, they must join in an action for reimbursement. Litter v. Horsey, 2 Ohio, 209.

301 Rolle, Abr. 31, pl. 9; Bacon, Abr. Pleas, B, 2, ? 1, Bouvier, ed.

31 Wright v. McLemore, 10 Yerg. Tenn. 235. See Gray v. Wilson, 1 Meigs, Tenn. 394. 22 2 McLean, C. C. 139.

33 Harrison v. Barnby, 5 Term, 246; Comyn, Dig. Abatement, E, 10; Martin v. Crompe, 1 Ld. Raym. 340; Powis v. Smith, 5 Barnew. & Ald. 851. And they may join in actions of covenant which are purely personal. Barbour, Part. 32. And see 4 Bingh. N. C. 34 Comyn, Dig. Abatement, E, 10.

781.

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general, alone the right to sue. But where an agent for the sale of goods contracts in his own name and as a principal, the general rule is that the action on such contract may be maintained, either in the name of the party by whom the contract was made, and who was, therefore, privy to it, or of the party on whose behalf and for whose benefit it was made; the former suing in respect of his privity and the latter of his interest.36

In such a case the right of suit vested in the agent is subject to the right of interference of the undisclosed principal; and if the defendant has acquired a right of set-off against the agent with whom he dealt without knowing the principal, he can claim that right against the principal in the same way as if the agent had been the plaintiff on the record.37

39

40

When the contract by the agent is made by deed, and he is nominally a party to it, though in reality as agent for another, he alone can sue thereon. 2664. The consignee of goods is considered as the owner of them, subject to the right of the vendor or consignor to stop them in transitu, and an action against a carrier for the loss of them must, in general, be brought in the name of the consignee, and not of the consignor, except under special circumstances.* 2665. An infant may sue on a contract entered into with him, but he must sue either by guardian or prochein ami, who are to appear for him; a prochein ami, however, is not a party to the suit, but simply a person appointed by the court to look after the interests of the infant and to manage the case for him.41

2666. A person non compos mentis may maintain an action, which should be brought in his own name, and not in that of his committee.12

2667. When one of the parties who has a legal right to sue has been ascertained, it must then be considered whether others are not equally concerned in the estimation of law; for it is a rule that when the contract was made with several, whether it was under seal or by parol, if their legal interests were joint, they must all, if living, join in the action for the breach of the contract.43

All the partners of a firm must join as plaintiffs for the breach of a contract made with the partnership by third persons, because they are all jointly interested. And even where goods belonging to a firm were sold by one of the partners in

35 Scrimshire v. Alderton, Strange, 1182; Moores v. Hopper, 2 Bos. & P. 511; Buckbee v. Brown, 21 Wend. N. Y. 110. And the principal may sue, though the agency was not disclosed. Tainter v. Prendergast, 3 Hill, N. Y. 72; Van Liew v. Byrnes, 1 Hilt, N. Y. 133, subject to set-off of claims against the agent; Moore v. Clementson, 2 Campb. 22;_ Warner v. McKay, 1 Mees. & W. Exch. 591; Mitchell v. Bristol, 10 Wend. N. Y. 492; Hozan v. Shorb, 24 id. 458.

36 Sargent v. Morris, 3 Barnew. & Ald. 380; Sims v. Bond, 5 id. 393; Sykes v. Giles, 5 Mees. & W. Exch. 650.

37 George v. Clagget, 7 Term, 359; Carr v. Hinchliff, 4 Barnew. & C. 547.

38 See Shack v. Anthony, 1 Maule & S. 573; Berkeley v. Hardy, 5 Barnew. & C. 355; Gibson v. Winter, 5 Barnew. & Ad. 96.

39 Dawes v. Beck, 8 Term, 330; Fragano v. Long, 4 Barnew. & C. 219; Dutton v. Solomonson, 3 Bos. & P. 582; Grant v. Newton, 1 E. D. Smith, N. Y. 95; Ogden v. Coddington, 2 id. 317.

40 Joseph v. Knox, 3 Campb. 320. See McIntyre v. Browne, 1 Johns. N. Y. 221; Ludlow v. Bowne, 1 Johns. N. Y. 1; Evans v. Nichols, 4 Scott, N. R. 43.

Sinclair v. Sinclair, 13 Mees. & W. Exch. 640.

42 Cooks v. Darson, Hob. 215; Thorn v. Coward, 2 Sid. 124; McKillip v. McKillip, 8 Barb. N. Y. 552. And see 7 Dowl. 22. There is a difference between lunatics and idiots, viz.: that an idiot, being incapable of appointing an attorney, must appear in person, and any one appearing as next friend (prochein ami) may be allowed to prosecute his suit for him; a lunatic may appear in person or by attorney, and must appear as any other person; if an infant, by guardian; otherwise, in person or by attorney. Broom, Part. 85.

431 Saund. 153; Yelv. 177; Anderson v. Martindale, 1 East, 497; Thimblethorpe v. Hardesty, 7 Mod. 116; Sweigart v. Berk, 8 Serg. & R. Penn. 308; Moody v. Sewall, 14 Me. 295; Haskell v. Jones, 24 Me. 222; Coster v. New York R. R. 6 Du. N. Y. 43.