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Die or survive.

Old common law rule;

questions respecting local actions, the district is regarded as corresponding with a county, in determining the jurisdiction of the court.76

Actions die with the person or survive.] The maxim of the common law was, "actio personalis moritur cum persona." This rule comprehended all causes of action arising from trespass or tort, and which were, therefore, in a certain sense, of a purely personal nature; as trespass, battery and slander; and such causes of action did not survive to or against a man's executors or administrators. This maxim, however, was never applied to contracts; and, by several alterations early statutes, an action was given to executors, &c. where a trespass or tort had been committed against the property of their testator, &c. although not where the trespass or tort was against his person. Actions were also given in similar, though less numerous instances, against the executors, &c. of a person who had done the injury to another's property. In many cases, however, where the rights of property had been violated, no action survived.

in it,

and pressnt

statutory re

But now it is provided by the revised statutes," that "for gulations. wrongs done to the property, rights, or interests of another, for which an action might be maintained against the wrong doer, such action may be brought by the person injured, or after his death by his executors or administrators, against such wrong doer, and after his death against his executors or administrators in the same manner and with the like effect in all respects, as actions founded upon contracts :" But that these provisions "shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator." The revised statutes also expressly provide,

76 4 Hall's Law Journal 78.

s. 1. 2. and see 2 R. St. 113. P. 2. 2 R. St. 447. P. 3. Ch. 8. T. 3. Ch. 6. T. 5. s. 3. 4. 5.

that "actions of account, and all other actions upon contract may be maintained by and against executors in all cases in which the same might have been maintained by or against their respective testators."78 The next section places admi

nistrators on the same footing with executors.

SECTION VI.

OF THE PARTIES TO ACTIONS.

Under this head will be considered only who should be made parties to personal actions and the action of trespass on lands. Who are the proper parties, in the other suits relating to real property, and in such proceedings as are not called actions, will be found treated of in connection with those subjects respectively.

The general rule in respect to parties is, that the action General rule. should be brought in the name of the party whose legal right has been affected, against the party who committed the injury, or by or against their personal representatives. In considering this subject more minutely, regard will be had, first, to the form of the action, whether it be ex contractu or ex delicto; and secondly, to the character of the parties, whether they be plaintiffs or defendants.

of the

Thus

contractu. Actions on contract to be brought by him who

Of plaintiffs in actions ex contractu.] In general the Plaintiffs ex action on a contract must be brought in the name party in whom the legal right or interest is vested.2 the action against a carrier for the loss of goods must in has the legal general be brought in the name of the consignee, and not

78 2 R. St. 113. P. 2. Ch. 6. T. 1 Saund. R. 153. 13 John. Rep. 496. 17 Ib. 243. 1 Wheat. Rep.

5. s. 2.

right; as

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EX CON-
TRACTU.

PLAINTIFFS of the consignor, the law implying the contract by the carrier to have been made with the consignee, in whom the property by consign- in the goods was vested by the delivery to the carrier; and though a covenant or contract be in its terms joint or several, yet the covenantees are to join or not according to their real interests, and not according to the terms of the covenant.*

Agent can not sue

unless he

has an inte

rest.

How of joint tenants, parceners, &c.

In general a mere servant or agent with whom a contract is made on behalf of another, cannot support an action thereon,5 even if the agent's character was not disclosed. But when an agent has any beneficial interest in the performance of the contract for commission, freight, lien or other cause, he may sustain an action in his own name; in each of which cases, however, the principal or owner might sue.

9

8

Joint tenants must join, but tenants in common101

may join or sever in actions on contracts relating to their estate; parceners also must join.10

Where the debt or contract has been assigned, the legal in

38 T. R. 330. 2 Saund. Rep. 47. k. 3 P. W. Rep. 186. 3 Bos. & Pull. 582. 1 John. Rep.9. 15. 215. See an exception 1 John. Rep. 1. 3 Camp. Rep. 320.

41 Esp. N. P. 117. 2 T. R. 282. 5 T. R. 711. Cro. Eliz. 729. 1 Saund. Rep. 153. and n. 1. 1 East. 497. 501. 1 Ld. Raym. 380. 1 Hen. & Mun. 61. Whether a party interested in a contract has such a legal interest as will support an action or only an equitable interest. See 1 Chit. Pl. 4. 5. and cases there cited.

5 3 Bos. & Pull. 147. 1 H. Bl. 84. 12 John. Rep. 401. 6 Ib. 94. 10. Ib. 387. sed. vid. 13 Ib. 88. 10 Ib. 396. 4 Camp. 195.

11 John. Rep. 23. 12 Ib. 1. 14 Ib. 466. 17 Ib. 195. 1 Camp. Rep. 337.

71 T. Rep. 112. 2 Esp. Rep. 493. 1 H. B. 82. 7 T. Rep. 359. 16 John. Rep. 1. 18 Ib. 24. 155. Salk. Rep. 440. pl. 1. 6 Taunt. Rep. 65. 1 Maul. & Selw. 426. and see Bul. N. P. 130. Paley on Agency, 282, for other rules.

87 Term. Rep. 356. n. a. 359. 360. n. a. 4 Taunt. 577. n. 4 Camp. 196. 2 Caine's Cas. Er. 341. 15 East. Rep. 67. 1 H. B. 81.

'Co. Lit. 180. b. 1 Bos. & Pul. 73.

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EX CON

contract has been assign

terest remains in the assignor as trustee, in whose name, or in PLAINTIFFS the name of his legal representatives, the action must be TRACTU. brought," except where the assignee has a right to sue in his Where the own name by the custom of merchants or by statute, as on bills ed. of exchange and promissory notes,12 or on bail and replevin bonds, or by virtue of the assignment of an insolvent's estate made under our own laws.13 But an assignee may sue in his own name on an express promise to himself made on a new consideration,1 or in assumpsit for money in the hands of a debtor, trustee or agent, who has expressly assented to the assignment;15 and an assignee should sue in his own name on covenants running with the land, for breaches after the assignment. 16 In an action by the assignee, in the name of the assignor, the defendant cannot defeat the suit by showing a want of interest in the nominal plaintiff.17

tracts survivor sues, &c.

When one of several obligees, partners, &c., having a joint On joint conlegal interest in the contract, dies, the action must be brought by the survivor or his representatives, without joining the representatives of the deceased;18 but if the interest were several, the representatives of the one may sue though the other be living. 101 It is necessary to describe a surviving

114 T. R. 340. 341. I East. Rep. 104. 3 Wils. Rep. 27. 1 Saund. Rep. 210. 2 Cranch. Rep. 342.

12 Chitty on Bills.

131 John. Rep. 118. 2 Ib. 342. 11 Ib. 488. But as to assignees of a foreign bankrupt vide 4 John. Ch. Rep. 460.

141 Saund. 210. n. 1. 1 Vent. Rep. 153. 154. 8 T. R. 595. Hard. 71. 4 Esp. Rep. 204.

151 John. Cas. 205. 12 John. Rep. 280. 7 Taunt. Rep. 339. and see an extension of the rule 12

John. Rep. 276. et vide 3 Cranch. 492.

16 2 Wils. Rep. 143. 1 Saund. Rep. 324. n. 4. 241. b. Doug. Rep. 279. R. St. P. 2. Ch. 1. T. 4. s. 23. 24. 25. Cro. Eliz. 863. 2 John. Rep. 1. 4 Ib. 72. 14 Ib. 89. 2 Barn. & Ald. 105. 2 Wheat. Rep. 65.

17 10 John. Rep. 400. 11 Ib. 488.

18 2 John. Cas. 374. 1 John. Rep. 34. 1 East. Rep. 497. Ld. Raym. 340. 2 Salk. Rep. 444. pl. 3. 1 Show. Rep. 188. Carth. Rep. 170.

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PLAINTIFFS

EX CONTRACTU.

Executors

and administrators

obligee as such; but it need not be done in the case of a partner, or where the debt is by simple contract;19 and a partner may join debts due to him in his own right, and as survivor.20 If all who had the legal interest in the contract be dead, the action must be brought by the representatives of the survivor, and the representatives of the others cannot be joined.21

In actions by executors or administrators, they ought all to should join. join, though some be under seventeen years of age, or have not proved or have refused to prove the will;22 but in debt, assumpsit, ortort, the non-joinder must be pleaded in abatement after oyer of the probate or letters,23 as they sue in autre droit. If the cause of action is a breach of covenants running with When heir the land, the suit should be brought, for breaches subsequent to the death of the ancestor or testator by the heir or devisee; for previous breaches, by the executor or administrator.24 If

or executor

to sue.

marries.

If executrix an executrix or administratrix marry, she and her husband should join for the breach of a personal contract made with the deceased, but if the contract be made to the husband and wife as executrix, he may sue alone.25 Trustees also must join.26 Personal re- We have seen101 that upon the death, lunacy, conviction to sue; who of an infamous crime, or incapability of a sole or the surviving executor, the administrator with the will annexed27 becomes the personal representative of the testator, the right of an executor of an executor to represent the original testator having been

presentatives

they are.

19 1 B. & P. 74. 5 Esp. Rep. 32. Comb. Rep. 383. 2 T. R. 477. 6 Ib. 365. Sty. Rep. 50.

John. Cas. 17. 4 John. Rep. 42.
R. St. P. 2. Ch. 6. T. 3. s. 6. 5
Taunt. Rep. 418. 1 Maul. & Selw.

20 3 T. R. 433. 5 Ib. 493. 6 Ib. 355. 4 Ib. 53. 188.
582.

21 1 Chit. Pl. 12.

25 1 Chit. Pl. 13. 3 T. R. 631.

4 Ib. 616. 1 Saund. 291. g. 1

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