PARTIES, contracts. Those persons who engage themselves to do, or not
to do the matters and things contained in an agreement.
2. All persons generally can be parties to contracts, unless they labor under
3. Consent being essential to all valid contracts, it follows that persons
who want, first, understanding; or secondly, freedom to exercise their will,
cannot be parties to contracts. Thirdly, persons who in consequence of their
situation are incapable to enter into some particular contract. These will be
4. - §1. Those persons who want understanding, are idiots and lunatics;
drunkards and infants,
5. - 1. The contracts of idiots and lunatics, are riot binding; as they are
unable from mental infirmity, to form any accurate judgment of their actions;
and consequently, cannot give a serious and sufficient consideration to any
engagement. And although it was formerly a rule that the party could not
stultify himself; 39 H. VI. 42; Newl. on Contr. 19 1 Fonb. Eq. 46, 7; yet this
rule has been so relaxed, that the defendant may now set up this defence. 3
Camp. 128; 2 Atk. 412; 1 Fonb. Eq. n. d.; and see Highm. on Lun. 111, 112; Long
on Sales, 14; 3 Day's Rep. 90 Chit. on Contr. 29, 257, 8; 2 Str. 1104.
6. - 2. A person in a state of complete intoxication has no agreeing mind;
Bull. N. P. 172; 3 Campb. 33; Sugd. Vend. 154 Stark. Rep. 126; and his contracts
are therefore void, particularly if he has been made intoxicated by the other
party. 1 Hen. & Munf. 69; 1 South. Rep. 361; 2 Hayw. 394; see Louis. Code,
art. 1781; 1 Clarke's R. 408.
7. - 3. In general the contract of an infant, however fair and conducive
tohis interest it may be, is not binding on him, unless the supply of
necessaries to him be the object of the agreement; Newl. Contr. 2; 1 Eq. Cas.
Ab. 286; l Atk. 489; 3 Atk. 613; or unless he confirm the agreement after he
shall be of full age. Bac. Abr. Infancy; I 3. But he may take advantage of
contracts made with him, although the consideration were merely the infant's
promise, as in an action on mutual promises to marry. Bull. N. P. 155; 2 Str.
907; 1 Marsh. (Ken.) Rep. 76; 2 M. & S. 205. See Stark. Ev. pt. iv. page
724; 1 Nott & McCord, 197; 6 Cranch, 226; Com. Dig. Infant; Bac. Abr.
Infancy and Age; 9 Vin. Ab. 393, 4; Fonbl. Eq. b. 1 c. 2; §4, note b; 3 Burr.
1794; 1 Mod. 25; Stra. 937; Louis. Code, article 1778.
8. - §2. Persons who have understanding, who, in law, have not freedom to
exercise their will, are married women; and persons under duress.
9. - 1. A married woman has, in general, no power or capacity to contract
during the coverture. Com. Dig. Baron & Feme, W; Pleader, 2 A 1. She has in
legal contemplation no separate existence, her hushand and herself being in law
but one person. Litt. section 28; see Chitty on Cont. 39, 40. But a contract
made with a married woman, and for her benefit, where she is the meritorious
cause of action, as in the instance of an express promise to the wife, in
consideration of her personal labor, as that she would cure a wound; Cro. Jac.
77; 2 Sid. 128; 2 Wils. 424; or of a bond or promissory note, payable on the
face thereof to her, or to herself and hushand, may be enforced by the hushand
and wife, though made during the coverture. 2 M. & S. 396, n. b.; 2 Bl. Rep.
1236; 1 H. Black. 108. A married woman has no original power or Authority by
virtue of the marital tie, to bind her bushand by any of her contracts. The
liability of a bushand on his wife's engagements rests on the idea that they
were formed by his authority; and if his assent do not appear by express
evidence or by proof of circumstances from which it may reasonably, be inferred,
he is not liable. 1 Mod. 125; 3 B. & C. 631; see Chitty on Cont. 39 to 50.
10. - 2. Contracts may be avoided on account of duress. See that word, and
also Poth. Obl. P. 1, c. 1, s. 1, art. 3, §2.
11. - §3. Trustees, executors, administrators, guardians, and all other,
persons who make a contract for and on behalf of others, cannot become, parties
to such contract on their own. account; nor are they allowed in any case to
purchase the trust estate for themselves. 1 Vern. 465; 2 Atk. 59; 10 Ves. 3; 9
Ves. 234; 12 Ves. 372, 3 Mer. Rep. 200; 6 Ves. 627; 8 Bro. P. C. 42 10 Ves. 381;
5 Ves. 707; 13 Ves. 156; 1 Pet. C. C. R. 373; 3 Binn. 54; 2 Whart. 53; 7 Watts,
387; 13 S. & R, 210; 5 Watts, 304; 2 Bro. C. C. 400; White's L. C. in Eq.
*104-117; 9 Paige, 238, 241, 650, 663; 1 Sandf. R. 251, 256; 3 Sandf. R. 61; 2
John. Ch. R. 252; 4 How. S. C. 503; 2 Whart. 53, 63; l5 Pick. 24, 31. As to the
transactions between attorneys and others in relation to client's property, see
2 Ves. jr. 201; 1 Madd. Ch. 114; 15 Ves. 42; 1 Ves. 379; 2 Ves. 259. The
contracts of alien enemies may in, general be avoided, except when made under
the license of the government, either express or implied. 1 Kent, Com. 104. See
15 John. 6; Dougl. 641. As to the persons who make contracts in equity, see
Newl. Cont. c. 1, pp. l to 33.
PARTIES TO ACTIONS. Those persons who institute actions for the
recovery of their rights, and those persons against whom they are instituted,
are the parties to the actions; the former are called plaintiffs, and the
latter, defendants. The term parties is understood to include all persons who
are directly interested in the subject-matter in issue, who have right to make
defence, control the proceeding, or appeal from the judgment. Persons not having
these rights are regarded as strangers to the cause. 20 How. St. Tr. 538, n.;
Greenl. Ev. §523
2. It is of the utmost importance in bringing actions to have proper parties,
for however just and meritorious the claim may be, if a mistake has been made in
making wrong persons, either plaintiffs or defendants, or including too many or
too few persons as parties, the plaintiff may in general be defeated.
3. Actions are naturally divided into those which arise upon contracts, and
those which do not, but accrue to the plaintiff in consequence of some wrong or
injury committed by the defendant. This article will therefore be divided into
two parts, under which will be briefly considered, first, the parties to actions
arising upon contracts; and, secondly, the parties to actions arising upon
injuries or wrongs, unconnected with contracts, committed b the defendant.
4. - Part I. Of parties to actions arising on contracts. These are the
plaintiffs and the defendants.
5. - Sect. 1. Of the plaintiffs. These will be considered as follows:
§1. Between the original contracting parties. An action. on a contract,
whether express or implied, or whether it be by parol, or under seal, or of
record, must be brought in the name of the party in whom the legal interest is
vested. 1 East, R. 497; and see Yelv. 25, n. l; 13 Mass. Rep. 105; 1 Pet. C. C.
R. 109; 1 Lev. 235; 3 Bos. & Pull. 147; 1 Ii. Bl. 84; 5 Serg. & Rawle,
27; Hamm. on Par. 32; 2 Bailey's R. 55; 16 S. & R. 237,; 10 Mass. 287; 15
Mass. 286 10 Mass. 230; 2 Root, R. 119.
6.- §2. Of the number of plaintiffs who must join. When a contract is made
with several, if their legal interests were joint, they must all, if living,
join in the action for the breach of the contract. 1 Saund. 153, note 1; 8 Serg.
& Rawle, 308; 10 Serg. & Rawle, 257; 10 East, 418; 8 T. R. 140; Arch.
Civ. Pl. 58; Yelv. 177, note 1. But dormant partners need not join their
copartners. 8 S. & R. 85; 7 Verm. 123; 2 Verm. 65; 6 Pick. 352; 4 Wend. 628;
8 Wend. 666; 3 Cowen, 84; 2 Harr. & Gill, 159. When a contract is made and a
bond is given to a firm by a particular name, as A B and Son, the suit must be
brought by the actual partners, the two sons of A B, t-he latter having been
dead several years at the time of making the contract. 2 Campb. 548. When a
person who has no interest in the contract is joined with those who have, it is
fatal. 19 John. 213 2 Penn. 817; 2 Greenl. 117.
7. - §3. When the interest of the contract has been assigned. Some contracts
are assignable at law; when these are assigned, the assignee may maintain an
action in his own name. Of this kind are promissory notes, bills of exchange,
bail-bonds, replevin-bonds; Hamm. on Part. 108; and covenants running with the
land pass with the tenure, though not made with assigns. 5 Co. 24; Cro. Eliz.,
552; 3 Mod. 338; 1 Sid. 157; Hamm, Part. 116; Bac. Abr.; Covenant, E 5. When a
contract not is signable at law has been assigned, and a recoverly on such
contract is sought, the action must be in the name of the assignor for the use
of the assignee.
8. - §4. When one or more of several obligees, &c., is dead. When one or
more of several obligees, covenantees, partners or others, haviug a joint
interest in the contract; not running with the land, dies, the action must be
brought in the name of the survivor, and that fact averred in the declaration. 1
Dall. 65, 248; 1 East, R. 497; 2 John. Cas. 374; 4 Dalt. 354; Arch. Civ. Pl. 54,
5; Addis. on Contr. 285; 1 Chan. Rep. 31; Yelv. 177.
9. - §5. In the case o executors and administrators. When a personal
contract, or a covenant not running with the land, has been made with one person
only, and he is dead, the action for the breach of it must be brought in the
name of the executor or administrator in whom the legal interest in the contract
is vested; 2 H. Bl. 310; 3 T. R. 393; and all the executors or administrators
must join. 2 Saund. 213; Went.95; 1 Lev.161; 2 Nott & McCord, 70; Hamm. on
10. - §6. In the case of bankruptcy or insolvency. In the case of the
bankruptcy or insolvency of a person who is beneficially interested in the
performance; of a contract made before the act of bankruptcy or before, the
assignment under the insolvent laws, the action should be brought in the name of
his assignees. 1 Chit. Pl. 14; 2 Dall. 276; 3 Yeates, 520; 7 S. & R. 182; 5
S. & R. 394; 9 S, & R. 434. See 3 Salk. 61; 3 T. R. 779; Id. 433; Hamm.
on Part. 167; Com. Dig. Abatement, E 17.
11. - §7. In case of marriage. This part of the subject will be considered
with reference to tbose cases. 1st. When the hushand and wife, must join. 2d.
When the hushand must sue alone. 3d. When the wife must sue alone. 4th. When
they may join or not at their election. 5th. Who is to sue in the case of the
death of the hushand or wife. 6th. When a woman marries, lis pendens.
12. - 1. To recover the chose in action of the wife, the hushand must, in
general, join, when the cause of action would survive. 3 T. R. 348; 1 M. &
S. 180; Com. Dig. Baron & Feme, V; Bac. Ab. Baron & Feme, K; 1 Yeates'
R. 551; 1 P. A. Browne's R. 263; 1 Chit. Pl. 17.
13. - 2. In general the wife cannot join in any action upon a contract. made
during coverture, as for work and labor, money lent, or goods sold by her during
that time, 2 Bl. Rep. 1239; and see 1 Salk. 114; 2 Wils. 424.; 9 East, 412; 1
Str. 612; 1 M. & S. 180; 4 T. R. 516; 3 Lev. 103; Carth. 462; Ld. Raym. 368;
Cro, Eliz. 61; Com. Dig. Baron & Feme, W.
14. - 3. When the hushand is civiliter mortuus, see 4 T. Rep. 361; 2 Bos.
& Pull. 165; 4 Esp. R. 27; 1 Selw. N. P. 286; Cro. Eliz. 1519; 9 East, R.
472; Bac. Ab. Baron & Feme, M.; or, as has been decided in England, when he
is an alien and has left the country, or has never been in it, the wife may, on
her own separate contracts, sue alone. 2 Esp. R. 544; 1 Bos. & Pull. 357; 2
Bos. & Pull. 226; 1 N. R. 80; 11 East, R. 301; 3 Camp. R. 123; 5 T. R. 679.
But the rights of such hushand being only suspended, the disability may be
removed, in one case, by a pardon, and, in the other, by the hushand's return,
and then: he must be joined. Broom on Part. s. 114.
15. - 4. When a party being indebted to a wife dum sola, after the marriage
gives a bond to the hushand and wife in consideration of such debt, they may
join, or the hushand may sue alone on such contract. 1 M. & B. 180; 4 IT. R.
616 1 Chit. Pl. 20.
16. - 5. Upon the death of the wife, if the hushand survive, he may sue for,
anything he became entitled to during the coverture; as for rent accrued to the
wife during the coverture. 1 Rolle's Ab. 352, pl. 5; Com. Dig. Baron & Feme,
Z; Co. Litt. 351, a, n. 1. But the hushand cannot sue in his own right for the
choses in action of the wife, belonging to her before coverture. Hamm. on Part.
210 to 215.
17. When the wife survives the hushand, she may sue on all contracts entered
into with her before coverture, which remain unsatisfied; and she may recoverall
arrears of rent of her real estate, which became due during the coverture, or
their joint demise. 2 Taunt. 181; 1 Roll's Ab. 350 d.
18. - 6. When a suit is instituted by a single woman, or by her and others,
and she afterwards marries, lis pendens, the suit abates. 1 Chit. Pl. 437; 14
Mass. R. 295; Brayt. R. 21.
19. - §8. When the plaintiff, is a foreign government, it must have been
recognized by the government of this country to entitle it to bring an action. 3
Wheat. R. 324; Story, Eq. Pl. §55. See 4 Cranch, 272; 9 Ves. 347; 10 Ves. 354;
11 Ves. 283; Harr. Dig. 2276.
20. - Sect. 2. Of the defendants. These will be considered in the following
order: §1. Between the original parties. The action upon an express contract,
must in general be brought against the party who made it. 8 East, R. 12. On
implied contracts against the person subject to the legal liability. Ramm. Part.
48; 2 Hen. Bl. 563. Vide 6 Mass. R. 253; 8 Mass. Rep. 198; 11 Mass. R. 335; 6
Binn. R. 234; 1 Chit. Pl. 24.
21. - §2. Of the number of defendants. For the breach of a joint contract
made by several parties, they should all be made defendants; 1 Saund: 153, note
1; Id. 291 b, n. 4; even though one be a bankrupt or insolvent. 2 M. & S.
23. Even an infant must be joined, unless the contract as to him be entirely
void. 3 Taunt. 307; 5 John R. 160. Vide 5 John. R. 280; 11 John. R. 101; 5 Mass.
R. 270; 1 Pick. 500. When a joint contractor is dead, the suit should be brought
against the survivor, 1 Saund. 291, note 2. The misjoinder of defendants in an
action ex contractu, by joining one who is not a contractor, is fatal. 3 Conn.
194; Pet. C. C. 16; 2 J. J. Marsh. 88; 1 Breese, 128; 2 Rand. 446; 10 Pick. 281.
22. - 3. In case of a change of credit, and of covenants running with the
land, &c. In general in the case of a mere personal contract, the action for
the breach of it, cannot be brought against the person to whom the contracting
party has assigned his interest, and the original party can alone be sued; for
example, if two partners dissolve their partnership, and one of them covenant
with the other that he will pay all the debts, a creditor may nevertheless sue
both. Upon a covenant running with land, which must concern real property, or
the estate therein; 3 Wils. 29; 2 H. Bl. 133; 10 East, R. 130; the assignee of
the lessee is liable to an' action for a breach of the covenant after the
assignment of the estate to him, and while the estate remaim in him, although he
have - not take possession. Bac. Ab. Covenant, E 34; 3 Is. 25; 2 Saund. 304, n.
12; Woodf. L. & T. 113; 7 T. R. 312; Bull. N. P. 159; 3 Salk. 4; 1 Dall. R.
210,; 1 Fonbl. Eq. 359, note y; Hamm. N. P. 136.
23. - §4. When one of several obligers, &c. is dead. When the parties
were bound by a joint contract, and one of them dies, his executor or
administrator is at law discharged from liability, and the survivor alone can be
sued. Bac. Ab. Obligation, D 4; Vin. Ab. Obligation, P 20; Carth. 105; 2 Burr.
1196. And when the deceased was a mere surety, his executors are not liable even
in equity. Vide 1 Binn. R. 123.
24. - §5. In the case of executors an administrators. When the contracting
party is dead, his executor or administrator, or, in case of a joint contract,
the executor or administrator of the survivor, is the party to be made
defen-dant. Ham. on Part. 156. On a joint contract, the executors of the
deceased contractor, the other surviving, are discharged at law, and no action
can be supported against them; 6 Serg. & R. 262; 2 Whart. R. 344; 2 Browne,
Rep. 31; and, if the deceased joint contractor was a mere surety, his
representatives are not liable either at, law or in equity. 2 Serg. & R.
262; 2 Whart. 344; P. A. Browne's R. 31. All the executors must be sued jointly;
when administration is taken on the debtor's estate, all his administrators must
be joined, and if one be a married woman, her hushand must also be a party. Cro.
25. - §6. In the case of bankruptcy or insolvency. A discharged bankrupt
cannot be sued. A discharge under the insolvent laws does not protect the
property of the insolvent, and he may in general be sued on his contracts,
though he is not liable to be arrested for a debt which was due and not
contingent at the date. of his discharge. Dougl. 93; 8 East, R. 311; 1 Saund.
241, n. 5; Ingrah. on Insol. 377.
26. - §7. In case of marriage. This head will be divided by considering, 1.
When the bushand and wife must be joined. 2. When the hushand must be sued,
alone. 3. When the wife must be sued alone. 4. When the hushand and wife may be
joined or not at the election of the plaintiff. 5. Who is to be sued in case of
the death of the hushand or wife. 6. Of actions commenced against the wife dum
sola, which are pending at her marriage.
27. - 1. When a feme sole who has entered into a contract marries, the
hushand and wife must in general be jointly sued. 7 T. R. 348; All. 72; 1 Keb.
281; 2 T. R. 480; 3 Mod. 186; 1 Taunt. 217; 7 Taunt. 432; 1 Moore, 126; aid, s6e
8 Johns. R. 2d ed. 115.; 15 Johns. R. 403, 483; 17 Johns. Rep, 16't;- 7 Mass. R.
291 - Com. Dig. Pleader, 2 A 2-; 1 Bingh. R. 60. But if the hushand be away, or
live separate from his wife, she may, on a contract of which she is the
meritorious cause, bring an action in the Paine of her hushand, on indemnitying
the latter for costs. 4 B. & A. 419; 2 C. & M. 388 Addis. on Contr. 342.
And, on such contract, she may sue as a feme sole when her hushand is civiliter
inortu'us. Addis. on Contr. 342 1 Salk. 116; 1 Lord Raym. 147; 2 M. & W. 65;
28. - 2. 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 made
during the coverture, the hushand must be sued alone. Com. Dig. Pleader, 2 A 2;
8 T. R. 545; 2 B. & P. 105; Palm. 312; 1 Taunt. 217; 4 Price, 48; 16 Johns.
29. - 3. The wife can in general be sued alone, in the same cases where she
can sue alone, the cases being reversed.
30. - 4. When the hushand, in consequence of some new consideration,
undertakes to pay a debt of the wife dum sola, he may be sued alone, or the
hushand and wife. may be made joint defendants. All. 73; 7 T. R. 349; vide other
cases in Com. Dig. Baron & Feme, Y; 1 Rolle's Ab. 348, pl. 45, 50; Bac. Ab.
Baron & Feme, L.
31. - 5. Upon the death of the wife, her executor, when she has appointed one
under a power, or her administrator, is alone responsible for a debt or duty she
contracted dum sola. The hushand, as such, is not liable. Com. Dig. Baron &
Feme, 2 C; 3 Mod. 186; Rep. Temp. Talb. 173; 3 P. Wms. 410. When the wife
survives, she may be sued for her contracts made before coverture. 7 T. R. 350;
1 Camp. R. 189.
32. - 6. When a single woman, being sued, marries Iis pendens, the plaintiff
may proceed to judgment, as if she were a feme sole. 2 Rolle's R. 53; 2 Str,
33. Part 2. Of parties to actions in form ex delicto. These are plaintiffs
34. - Sect. 1. Of plaintiffs. These will be separately, considered as
35. - §1. With reference to the interest. Of the plaintiff. The action for a
tort must, in general, be brought in the name of the party whose legal right has
been affected, 8 T. R. 330; vide 7 T. R. 47; 1 East, R. 244; 2 Saund. 47 d;
Hamm. on Part. 35, 6; 6 Johns. R. 195;.10 Mass. R. 125 10 Serg. & Rawle,
36. - §2. With reference to the number of plaintiffs. It is a general rule
that when an injury is done to the property of two or more joint owners, they
must join in the action; and even when the property is several, yet when the
wrong has caused a joint damage, the parties must join in the action. 1 Saund.
291, g. When suits are brought by tenants in common, against strangers for the
recovery of the land, inasmuch as they have several titles, they cannot
agreeably to the rules of the common law, join, but must bring separate actions;
and this seems to be the rule in Missouri. 1 Misso. R. 746. This rule has been
changed in some of the states. In Connecticut, when the plaintiff claims on the
title of all the tenants, he recovers for their benefit, and his possession will
be theirs. 1 Swift's Dig. 103. In Massachusetts, Mass. Rev. St. 611, and Rhode
Island, R. I. Laws, 208, all the tenants or any two may join or any one may sue
alone. In Tennessee they usually join. 2 Yerg. R. 228.
37. When personal reputation is the object affected, two or more cannot join
as plaintiffs in the action, although the mode of expression in which the
slander was couched comprehended them all; as when a man addressing himself to
three, said, you have murdered Peter. Dyer, 191, pl. 112; Cro. Car. 510; Goulds.
pl. 6, p. 78. The reason of this is obvious, no one has any interest in the
character of the others, the damages are, therefore, several to each.
38. - §3. In general, rights or causes of action arising ex delicto are not
39. - §4. When one of several parties who had an interest is dead. In such
case the action must be instituted by the survivor. 1 Show. 188; S. C. Carth.
40. - §5. When the party injured is dead. The executors or administrators
cannot in general recover damages for a tort, when the, action must be ex
delicto, and the plea to it is not guilty. Vide the article Actio personalis
moritur cum persona, where the subject is more fully examined.
41. - §6. In case of insolvency. The statutes generally authorize the trustee
or assignee of an insolvent to institute a suit in his own name for the recovery
of the rights and property of the insolvent. 6 Binn. 189; 8 Serg. & Rawle,
124. But for torts to the person of the insolvent, as for slander, the trustee
or assignee cannot sue. W. Jones' Rep. 215.
42.- §7. When the tort has been committed, against a woman dum sola who
afterwards married. A distinction is made between those injuries committed
before and those which take place during coverture. For injuries to the person,
personal or real property of the wife, committed before coverture, when the
cause of action would survive to the wife, she must join in the action. 3 T. R.
627; Rolle's Ab. 347; Com. Dig. Baron & Feme, V. For an injury to the person
of the wife during coverture, by battery, or to her character, by slander, or
for any other such injury, the wife must be joined with her hushand in the suit;
when the injury is such that the hushand receives a separate damage or loss, as
if in consequence of the battery, he has been deprived of her society or been
put to expense, he may bring a separate action, in his own name; and for slander
of the wife, when words are not actionable of themselves, and the hushand has
received some special damages, the hushand must sue alone. 1 Lev. 140; 1 Salk.
119; 3 Mod. 120.
43. - Sect. 2. Of the defendants. §1. Between the orginal parties. All
natural persons are liable to be sued for their tortious acts, unconnected with
or in disaffirmance of a contract; an infant is, therefore, equally liable with
an adult for slander, assaults aud batteries, and the like; but the plaintiff
cannot bring an action ex delicto which arose out of a contract, and by that
means charge an infant for a breach of a contract. The form is of no
consequence; the only question is whether the action arose out of contract or
otherwise. A plaintiff who hired a horse to an infant, and the infant by hard,
improper and injudicious driving, killed the horse,, cannot maintain an action
ex delicto to recover damages for a breach of this contract. 8 Rawle's R. 351; 6
Watts' R. 9; 8 T. R. 385; Hamm. N. P. 267. But see contra, 6 Cranch,226; 15
Mass. 359; 4 McCord, 387. Vide Infant.
44. - §2. As to the number of defendants. There are torts which, when
committed by several, may authorize a joint action against all the parties; but
when in legal contemplation several cannot concur in the act complained of,
separate actions must be brought against each; the cases of several persons
joining in the publication of a libel, a malicious prosecution, or an assault
and battery, are cases of the first kind verbal slander is of the second. 6
John. R: 32. In general, When the parties have committed a tort which might be
committed by several, they may be jointly sued, or the plaintiff may sue one or
more of them and not sue the others, at his election. Bac Ab. Action Qui Tam, D;
Roll. Ab. 707; 3 East, R. 62.
45. - §3. When the interest has been assigned. A liability for a tort cannot
well be assignee; but an estate may be assigned on which was erected a nuisance,
and the assignee will be liable for continuing it, after having possession of
the estate. Com. Dig. Case, Nuisauce, B; Bac. Ab. Actions, B; 2 Salk. 460; 1 B.
& P. 409.
46.- 4. When the wrongdoer is dead. In this case the remedy for wrongs ex
delicto, and unconnected with contract, cannot in general be maintained. Vide
Actio personalis moritur cum persona.
47. - §5. In case of insolvency. Insolvency does not discharge the right of
action of the plaintiff in any case; it merely liberates the defendant from
arrest when he has received the benefit of, and been discharged under, the
insolvent laws; an insolvent may therefore be sued for his torts committed
before his discharge.
48. - §6. In case of marriage. Marriage does not affect or change the
liabilities of the hushand and he is alone to be sued for his torts committed
either before or during the coverture. But it is otherwise with the wife; after
her marriage she has no personal property to pay the damages which may be
recovered, and she cannot even appoint an attorney to defend her. For her torts
committed by her before the marriage, the action must be against the hushand and
wife jointly. Bac. Ab. Baron and Feme, L; 5 Binn. 43. They must also be sued
jointly for the torts of the wife during the coverture, as for slander, assault
and battery, &c. Bac. Ab. Baron and Feme, L. See, generally, as, to parties
to actions,, 3 United States Dig. Pleading, I, and Promissory Note, XVI.; Bouv.
Inst. Index, h. t.