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2695. An administration is wrongful and voidable when granted to an improper person ; but until revoked in such case, it is valid. So, also, when a will is afterward proved. It is a nullity when it is granted to the estate of a man who is alive. So, too, where the court granting it has no jurisdiction.”
, The acts of a wrongful administrator are wholly void, and he can, therefore, bring no action. There cannot be an administrator of his own wrong.
2696. When several persons have a joint legal interest in a contract, not running with the land, and they are all living, they must join in an action for the breach of it. When one of them is dead, then the survivors must sue, and the executor of the deceased cannot be joined with them; in such case the declaration, and indeed the writ, ought to show the fact of the death.
In the case of a joint contract, the executor of the deceased cannot sue, although the beneficial interest was in his testator.86 But when the interest of the obligees is several, the executor of the deceased may maintain an action for the share which was due or owing to his testator. It has been holden that where a contract was made to three who had a joint interest, and two of them were paid their shares, the third might afterward sue alone for his proportion ; 86 in such case the executor would, upon principle, have the right to sue for such share. The reason why such suit can be maintained is, that the parties have agreed to sever the contract, and make what was a joint a several agreement.
2697. When the contract is assignable at law, the assignee should sue in his own name. In general, a simple or merely personal contract, being a mere chose in action, is not assignable at law; but for the promotion of commerce, many such contracts may be so assigned, such as bills of exchange, promissory notes for the payment of money, and, by statute, bonds for the payment of money, mortgages, bail bonds, and replevin bonds, so as to convey to the assignee the right to sue in his own name. And covenants running with the land
pass with the tenure, though not made with assigns. 2698. Though not assignable at law, most choses in action are assignable in equity, and the assignee may sue on them in the name of the assignor for his own use without the consent of the assignor; but in these cases the defendant, in general, has a right to set off any equitable claim he had against the assignor at the time he first had notice of the assignment.
2699. For a breach of a covenant running with an estate in land, an assignee of such estate must be the plaintiff for any breach committed after the assignment, and this without proving any attornment, but the assignee is not entitled to maintain an action for any breach before the assignment.
2700. When the reversion has been assigned in several parts, or when it descends to several heirs, each is entitled to his proportion of the rent, and may maintain a separate action upon it.
270L. When a party to a contract becomes bankrupt, or is discharged under the insolvent laws, all his estate is assigned by operation of law, and vested in assignees. Unlike voluntary assignees of choses in actions not assignable at law, they in all cases are entitled to the legal right to sue on a contract made by the bankrupt or insolvents in their own names.
2702. To entitle a foreign government to sue in its own name it must have been recognized by the government of the United States.87
82 Patton's Appeal, 31 Penn. St. 495; Bulkley v. Redmond, 2 Bradf. Surr. N. Y. 281.
83 Jochumsen v. Suffolk Savings Bank, 3 All. Mass. 87; Moore v. Smith, 11 Rich. So. C. 569. 8- Langworthy v. Baker, 23 Ill. 484.
Peters v. Davis, 7 Mass. 257. 86 Garret v. Taylor, 1 Esp. 117; Baker v. Jewell, 6 Mass. 460; Austin v. Walsh, 2 Mass. 401; Beach v. Hotchkiss, 2 Conn. 697. 87 Gelston v. Hoyt, 3 Wheat. 324; Story, Eq. Pl. 8 55.
2703. A corporation may sue in its corporate name on all contracts made in its behalf by its officers or agents ; 88 and if a mistake has been made in its name in making the contract, it may sue in its true name, and it can sue only in the name and style given to it by law.so
In general, a corporation chartered by the laws of one state can sue in the courts of another.'
A corporation aggregate, being in its corporate capacity a citizen, can sue in the courts of the United States a citizen of another state than the one in which it is located.92
Two corporations may join in an action to recover a joint claim; as, where money was deposited in a bank to their joint names. But although they may be
93 tenants in common, if they can maintain each a separate action, they cannot join.''
2704. The subject of defendants in actions ex contractu will be treated in the same order as that of plaintiffs, and we will consider who are to be defendants, when the action is between the original parties, when there are several liable, when a female obligor is married, in the case of executors and administrators, when one of several obligors is dead, when there has been a change of credit, and when covenants run with the land, and when the obligor is bankrupt, insolvent, or a corporation.
2705. At law, we have seen, a party cannot sue who has a mere equitable right; to entitle him to an action he must have a legal right. In order to sustain an action against a defendant, he must, therefore, be subject to a legal liability. A cestui que trust cannot, as such, sustain an action at law against his trustee; his remedy is in equity unless otherwise provided for by the statutes of the states where the suit is brought, except, indeed, where the trustee has settled an account and the law raises from that act a promise to pay."
2706. The party upon an express contract is he by whom it was concluded, and this, though the contract inured to another's advantage, and the suit must in general be brought against him, whether it was made by him personally or by his agent.
The agent, when it clearly appears that he acted within the scope of his authority, and entered into the obligation or engagement in the name of his principal, is not liable on such contract. But where he concealed his principal and acted in his own name, or where he entered into a personal obligation and engaged to fulfil the contract himself, as, where he accepted a bill of exchange
** Bowen v. Morris, 2 Taunt. 374; Binney v. Plumley, 5 Vt. 500; Bradley v. Richardson, 23 id. 720; Delaware Cor, v. Irick, 3 Zabr. N. J. 321 ; Bradley v. Richardson, 2 Blatchf. C. C. 343; St. Andrew's Co. v. Mitchell, 4 Fla. 200. And even where a note has been made payable to the cashier, treasurer, or other officer, the suit may be in the name of the corporation if proper averments of interest are made. Commercial Bank v. French, 21 Pick. Mass. 486; Leonardsville Bank y. Willard, 25 N. Y. 574.
** Middleton v. McCormick, 2 Penn. 500; Hagerstown Turnpike v. Creeger, 5 Harr. & J. Md. 122; Alloway's Creek v. String, 5 Halst. N. J. 323; Berks and Dauphin Co. v. Myers, 6 Serg. & R. Penn. 16.
* Porter v. Neckervis, 4 Rand. Va. 359; Bank of Commerce v. Mudd, 32 Mo. 218; Campbell v. Brunk, 25 Ill. 225. Where there has been a change of name it should sue in its new name with proper averments. Groux's, etc., Co. v. Cooper, 8 C. B. N. s. 800; Griffin v. Macaulay, 7 Gratt. Va. 476.
si Louisville R. R. v. Letson, 2 How.558; Marshall v. Baltimore R. R. 16 id. 314; Lafayette Ins. Co. v. French, 18 id. 404; see Bank of Augusta v. Earle, 13 Pet. 519; Waterville Mfg. Co. v. Bryan, 14 Barb. N. Y. 182; Bank v. Simonton, 2 Tex. 531; Cumberland Co. v. Hoffman Co. 30 Barb. N. Y. 159.
92 Hope Ins. Co. v. Boardman, 5 Cranch, 57; Bank of U. S. v. Deveaux, 5 Cranch, 61.
93 Sharon Canal Co. v. Fulton nk, 7 Wend. N. Y. 412. See Ohio R. R. WI ler, 1 Black, 286.
* Rehoboth and Seekonk v. Hunt, 1 Pick. Mass. 228.
generally in his own name,96 he is liable, except in the case of a person acting in the capacity of agent for the government."
An exception to this general rule is the case where the master of a ship contracts for necessaries for his ship; he and his owners are both liable if the necessaries were furnished abroad or in this country, unless furnished on the credit of the owners; and he or his owners are liable upon a bill of lading, or for a loss of goods, unless the contract was made, not by the master, but the owners themselves.
2707. Upon implied contracts the party is equally liable as upon an express agreement. The consignor or shipper of goods is liable for the freight, and may,
therefore, be sued for it, unless he stipulates to the contrary.”
And the consignee may become liable by receiving the goods under a claim by the carrier to hold him for the freight. The mere receipt of goods by him, however, is only evidence from which, if uncontradicted, the jury inay find an agreement to pay freight, and this agreement is a new cause of action, distinct from that implied from the shipment of the goods.
But if the consignee refuse, he will not be liable, unless upon some other ground than the mere shipment.101
And in the same way the indorsee of a bill of lading may become liable by accepting the goods ; 102" but this he must do as a principal, for in neither of these cases will
the person who accepts the goods be liable if he declares at the time of the acceptance that he acts as an agent.
2708. The law raises a contract whenever any one obtains possession of another's property and unjustly detains it, whether he took it from the owner himself or from a third person, and whether he knew at the time that it belonged to another or not; as, where A took the goods of B and sold them to C, B may sue A or C, at his choice, for goods sold. 104
2709. The party to a deed, whether it be made by himself or his agent, is in general responsible, as on a simple contract. But if the contract be made by an agent, and he covenants for the acts of another, though he describes himself as agent, he will be personally liable; as, where he covenants in this form, “I, A, agent and attorney in fact of B, do hereby covenant with C,” for here the covenant is not that of B, the principal, but of A, the agent or attorney.
2710. In an action founded on a judgment, the defendant in the action in which judgment was recovered must, if living, be made defendant.
2711. Where there are more obligors than one the liability may be joint, or joint and several, or several, according to the terms of the contract. If the obligation be joint, all must be joined as defendants.106 If joint and several, the plaintiff may proceed at his election against all jointly, or against the parties severally.106 He cannot proceed against a part of the obligors jointly.107 And
96 Thomas v. Bishop, Strange, 955. Hodgson v. Dexter, 1 Cranch, 345. 98 Boson v. Sandford, Carth. 58. 99 Moore v. Wilson, í Term, 659; Domett v. Beckford, 5 Barnew. & Ad. 521; Strong v. Hart, 6 Barnew. & C. 160; Wooster v. Tarr, 8 All. Mass. 270; Barker v. Havens, 17 Johns, N. Y. 23.
100 Saunders 1. Vanzeller, 4 Q. B. 260 ; Young v. Möller, 5 Ell. & B. 755; Cock v. Taylor, 13 East, 399; Blanchard v. Page, 8 Gray, Mass. 291 ; Wooster v. Tarr, 8 All. Mass. 270. See Trask v. Duval, 4 Wash. C. C. 181. 101 Christy v. Row, 1 Taunt. 300. 102 Cock v. Taylor, 2 Campb. 587, 13 East, 399. 1 East, 507.
104 Clarke v. Shee, Cowp. 197. 105 Broom, Part. 111; Cabell_v. Vaughan, 1 Wms. Saund. 291, b, n (4); Lee v. Nixon, 1 Ad. & E. 207. See Regina v. Dean. 12 Mees. & W. Exch. 39.
106 Ecclestier v. Clipsham, 1 Wms. Saund. 154, n (1); 1 Pet. 73; Lee v. Nixon, 1 Ad. & E. 207. See Haight v. Langham, 3 Lev. 303. 107 3 Term, 782.
having elected to proceed jointly he is bound by his election, and cannot have several judgments.108 Where one of the parties is dead his representatives are not to be joined.109 And a discharge in bankruptcy is in England good reason for not joining a party jointly bound."0
2712. The question, whether the obligation is joint, several, or joint and several, is to be determined from the character of the obligation, and not from the nature of the interest of the parties in the subject matter, or the manner of entering into the obligation. Thus, an obligation may be joint when incurred at first by one, and others afterward join. The form of expression used, however, may be material, as terms indicating an express intention may make a contract several which would otherwise be joint.
2713. As instances of implied joint contract the following cases may be mentioned: where several persons, as a club, dine at a tavern, they are jointly chargeable with the entire reckoning, and not merely each for his share." And where two employ an attorney to sue out a writ there is an implied joint contract that they will pay him his fees.13 But there may be an implied several contract made by many under certain circumstances.114 Ón all implied contracts by a firm or partnership all the partners must be sued.
2714. The rules in relation to express joint contracts are the same with independent contracts under seal. A man will not be held to be a party to a deed whose name is introduced into it as a co-contractor unless he sealed and delivered it, for the execution of it by his companion without authority is not binding on him. A joint delivery does not make that a joint deed which in its terms is several, or vice versa. 115
2715. When a judgment has been rendered against two or more the liability is always joint, and the original demand which is merged in it will make no difference, whether it was joint or not. But a distinction must be observed between a judgment rendered on a right which becomes merged and a judgment in scire facias, which is a mere award of execution. In the latter case the original right is not merged; therefore, when a judgment in scire facias has been given against two bail on their recognizance, debt lies afterward against one only, since it is sued on the recognizance, not on the judgment. 117
2716. When, by the terms of the contract, the contractors are only severally bound, they cannot be joined in the same action, though the parties may stand in the same relative situations. 118 It must, therefore, appear upon the face of the proceedings in an action ex contractu that their contract was joint, and the fact must be proved on the trial. If too many persons are joined and the action cannot be supported as to some of them, it will fail as to the whole; when such defect appears upon the pleadings, the defendants may take advantage of it by demurrer, motion in arrest of judgment, or by writ of error; and when it does not appear and the plaintiff cannot sustain his allegation by proof, he will be nonsuited upon the trial.
When one of several defendants is not liable in point of law, as in the case of an infant or married woman, and he is included with those who are sued, the plaintiff will be nonsuited, because the contract at the time it was entered into was
108 Stearns v. Aguirre, 6 Cal. 176. See Judson v. Gibbons, 5 Wend. N. Y. 224.
109 Engs v. Dorrinthorne, 2 Burr. 1196; Whelpdale's Case, 1 Coke, 519; Calder v. Rutherford, 3 Brod. & B. 302; Voorhis v. Baxter, 18 Barb. N. Y. 592. 110 Broom, Part. 121. See 2716.
111 Lee v. Nixon, 1 Ad. & E. 201. 112 Foster v. Taylor, 3 Campb. 49. See Wathen v. Sandys, 2 Campb. 640. 113 Ld. Raym. 127.
114 Brown v. Doyle, 3 Campb. 51. 2 Rolle, Abr. 148, 149. 116
King v. Hoare, 13 Mees. & W. Exch. 506. 117 Williams v. Green, 8 Mod. 295; Gee v. Fane, 1 Lev. 225. Berkley v. Presgrave, 1 East, 226.
not binding on them; but if one of the defendants, having been liable, becomes discharged by some after act, as, by bankruptcy, the plaintiff may enter a nolle prosequi as to him. When the action is brought only against the persons who are responsible in point of law, and the defendants plead in abatement the nonjoinder of such a person, as an infant or a feme covert, the plaintiff may reply the infancy or coverture.
2717. By her marriage the legal existence of a married woman is merged in that of her husband, so that she cannot defend any action brought against her on her contract, and when a suit is brought against her alone, she must plead her coverture. When she marries pending an action against her, the suit does not abate, but goes on as if nothing had happened, for she shall not be able to defeat the plaintiff by her own act.
The law, by the effect of statutes in the several states, is so various, and, on many points, unsettled, that it would be impossible within the limits which can be allowed to the subject in accordance with the general plan of this work to state accurately the present condition of the law in the different states. It seems better, therefore, to give the rules under the common law, referring the reader to the statutes and decisions of the particular states. The general effect of these statutes is to render the married woman capable of controlling her own property for her own benefit free from the interference and control of her husband, empowering her to make contracts with reference thereto, and subjecting her to suit independently of him.
It will be convenient to consider when the husband and wife must be joined, when the husband may be sued alone, when the wife must be sued alone, when the husband and wife may be joined or not at the election of the plaintiff, and who is to be sued in case of the death of the husband or wife.
2718. Where the wife entered into a several contract, dum sola, she and her husband must be joined in an action for a breach of it; and where she is a joint obligee with others, she and her husband must be joined in actions for the breach of such joint contract. As the wife can make no valid contract during the coverture without her husband's authority, it follows that she cannot be joined with her husband as a defendant in an action on such contract.
For causes in alieno jure where the wife alone represents the estate from which they are due, she must be joined as co-defendant.
2719. The husband must be sued alone 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 during coverture, even when made exclusively for her benefit; as when, in consequence of the misconduct of her husband, the wife is compelled to buy goods which are within the meaning of necessaries of life; the husband is liable in those cases, although he may have given notice to the tradesmen not to trust her.
The term necessaries is not confined to the mere necessities of life, but includes such ornaments and superfluities of dress as are usually worn by women of the rank and appearance of the defendant's wife, or rather that which he allows her to assume.119 But in case the wife is in fault, as, if she goes away with an adulterer, the husband will not be liable.
2720. The wife may be sued alone upon her own contracts made dum sola when the husband is civiliter mortuus, for otherwise the creditor would have no remedy.
2721. The husband and wife may be joined in a case where the contract was made by the wife before the coverture, although the husband may afterward, upon a new consideration, as forbearance, have agreed to pay the debt, and he
119 Waithman v. Wakefield, 1 Campb. 120.