PARTIES TO A SUIT IN EQUITY. 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
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.
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 hushand;
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
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
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 hushand 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.
PARTITION, conveyancing. A deed of partition is, one by which lands
held in joint tenancy, coparcenary, or in common, are divided into distinct
portions, and allotted to the several parties, who take them in severalty.
2. In the old deeds of partition, it was merely agreed that one should enjoy
a particular part, and the other, another part, in severalty; but it is now the
practice for the parties mutually to convey and assure to each other the
different estates which they are to take in severalty, under the partition.
Cruise Dig. t. 32, c. 6, s. 15.
PARTITION, ?states. The division which is made between several
persons, of lands, tenements, or hereditaments, or of goods and chattels which
belong to them as co-heirs or co-proprietors. The term is more technically
applied to the division of real estate made between coparceners, tenants in
common or joint tenants.
2. The act of partition ascertanas and fixes what each of the co-proprietors
is entitled to have in severalty
3. Partition is either voluntary, or involuntary, by compulsion. Voluntary
partition is made by the owners of the estate, and by a conveyance or release of
that part to each other which is to be held by him in severalty.
4. Compulsory partition is made by virtue of special laws providing that
remedy. "It is presumed," says Chancellor Kent, 4 Com. 360, "that the English
statutes of 31 and 32 Henry VIII. have been generally reenacted and adopted in
this country, and probably, with increased facilities for partition." In some
states the courts of law have jurisdiction; the courts of equity have for a long
time exercised jurisdiction in awarding partition. 1 Johns. Ch. R. 113; 1 Johns.
Ch. R. 302; 4 Randolph's R. 493; State Eq. Rep. S. C. 106. In Massachusetts, the
statute authorizes a partition to be effected by petition without writ. 15 Mass.
R. 155; 2 Mass. Rep. 462. In Pennsylvania, intestates' estates, may be divided
upon petition to the orphans' court. By the civil code of Louisiana, art. 1214,
et seq., partition of a succession may be made. Vide, generally, Cruise's Dig.
tit. 32, ch. 6, s. 1 5; Com. Dig. Pleader, 3 F; Id. Parcener, C; Id. vol. viii.
Append. h. t. 16 Vin. Ab. 217; 1 Supp. to Yes. jr. 168, 171; Civ. Code of Louis.
B. 3, t. 1, c. 8.
5. Courts of equity exercise jurisdiction in cases of partition on various
grounds, in cases of such complication of titles, when no adequate remedy can be
had at law; 17 Ves. 551; 2 Freem. 26; but even in such cases the remedy in
equity is more complete, for equity directs conveyances to be made, by which the
title is more secure. "Partition at law, and in equity," says Lord Redesdale,
"are very different things. The first operates by the judgment of a court of
law, and delivering up possession in pursuance of it, which concludes all the
parties to it. Partition in equity proceeds upon conveyances to be executed by
the parties; and if the parties be not competent to execute the conveyance, the
partition cannot be effectually had." 2 Sch. & Lef. 371. See 1 Hill. Ab. c.
55, where may be found an abstract of the laws of the several states on this