CHAPTER III.

BILL IN EQUITY — PARTIES, WHO HAVE CAPACITY TO

SUE AND BE SUED.

§ 49. In the first place, then, let us consider, who may sue in Equity. The King or Government may (as has been already stated) sue in a Court of Equity, not only in suits strictly on behalf of the Crown or Government, for its own peculiar rights and interests ; but also on behalf of the rights and interests of those, who partake of its prerogative, or claim its peculiar protection. In all such cases the suit is instituted by the proper public officer, to whom that duty is entrusted; and this ordinarily is the Attorney-General.? Where the suit immediately concerns the rights and interests of the Crown, the public officer sues in his own official name without uniting that of any other person. But where the suit does not immediately concern the rights or interests of the Crown, but only of those, who partake of its prerogative, or are under its peculiar protection, or the subject matter is publici juris, there the Attorney-General sues generally (but it is not absolutely necessary), at the relation of some other person, who is named as relator in the Bill, and who becomes thereby responsible for the costs.

1 Ante, \ 8; Mitf. Eq. Pl. by Jeremy, 4, 21 - 24 ; Cooper, Eq. Pl. 21, 22, 101, 102; Attorney-General v. Vernon, 1 Vern. R. 277, 282; S. C. 370, 1 Mont. Eq. Pl. 34. Edwards on Parties in Equity, 60, 61. Calvert on Parties, ch. 3,9 26, p. 301 - 308.

2 Ibid.

3 Ante, 0 8; Mitf. Eq. Pl. by Jeremy, 22-24 ; Cooper, Eq. Pl. 21, 22, 101, 102 ; Attorney-General v. Vivian, 1 Russ. R. 235-237; 1 Mont. Eq. Pl. 34. Calvert on Parties, ch. 3, § 26, p. 301 - 308.

$ 50. Suits on behalf of bodies politic and corporate, and of persons, who do not partake of the prerogative of the Crown or Government, and who have no claim to its particular protection, are instituted by themselves, either alone, or under the protection of others.' Bodies politic and corporate, and all persons of full age, not being a feme covert, idiot, or lunatic, or otherwise subject to some special disability, may by themselves alone exhibit a Bill, as the like persons may sue at law ;? for, with the exceptions above alluded to, it may be laid down as a general rule, that all sorts and conditions of persons, from the highest to the lowest, may sue in Courts of Equity.) Indeed, under peculiar circumstances, Courts of Equity, which are said to delight in justice and mercy, will permit poor persons to sue in formâ pauperis, where they are unable to carry on such suits from want of pecuniary means; and, then, counsel will be assigned to them by the Court, and they are exempted from the payment of ordinary fees.4

$ 51. The incapacities to sue are, as at law, of two sorts; first, those, which are absolute; and secondly, those which are partial. The absolute are such as, while they continue, wholly disable the party to

The partial are such, as disable the party to sue by himself alone without the aid of another. The absolute incapacities, in England, are outlawry, excommunication, attainder, and alienage. In Amer

1 Mitf. Eq. Pl. by Jeremy, 24; Cooper, Eq. Pl. 24.

2 Mitf. Eq. Pl. by Jeremy, 24 ; Cooper, Eq. Pl. 24 ; Edwards on Parties in Equity, 34 - 36; Calvert on Parties, ch. 3, § 18, p. 255, 260.

3 Cooper, Eq Pl. 24.

4 1 Harris. Ch. Pr. by Newl. 389, 390 ; Wyatt, Pr. Reg. 319; Beam. Ord. in Ch. 44, 50, 284 ; Cooper, Eq. Pl. 24. 5 Mitf. Eq. Pl. by Jeremy, 226 - 229; Beames, Ord. in Ch. 27; .

- 5. Davies, 19 Ves, 80; 1 Mont. Eq. Pl. 32, 33; 2 Mont. Eq. EQ. PL.

8

ica the two former are either wholly unknown, or, if known at all, are of very limited local existence. Alienage alone does not in either country constitute a general disability to sue in Courts of Law or of Equity ; but only alienage combined with the character of enemy. An alien friend has a right to sue in any Court; an alien enemy is incapable of suing while he remains an enemy, at least unless under very special circumstances.

§ 52. The ground of this distinction may be stated almost in the very language of a distinguished Judge. Alien friends come into the country, either (as was formerly the case) with a letter of safe conduct, or under a tacit permission, which presumes that authority. So, if they continue to reside here after a war breaks out between the two countries, they remain under the benefit of that protection, and are impliedly temporary subjects of the country, where they reside. But if the right of suing for redress of the injuries, which they receive, were not allowed them, the protection afforded would be incomplete, and merely, nominal. This claim to the protection of the courts of the country does not apply to those aliens, who adhere to the public enemies of the country. They seem, upon every principle, to be incapacitated from suing either at Law or in Equity.?

$ 53. A doubt has arisen, whether this doctrine is applicable to Bills of discovery, as it clearly is to Bills

Pl. 111-115; Cooper, Eq. Pl. 26 ; Calvert on Parties, ch. 3, 28,

p. 313.

1 Mitf. Eq. Pl. by Jeremy, 229; Cooper, Eq. Pl. 27; 2 Mont. Eq. PI. 114, 115 ; Daubigny v. Davallon, 2 Anst. R. 462, 467; Albretcht o. Sussman, 2 Ves. & B. 323; Edwards on Parties in Equity, 216 218; Calvert on Parties, ch. 3, § 27, p. 311, 312; Pisani v. Lawson, 6 Adolph. & Ellis, 90.

2 Lord Ch. Baron Macdonald in Daubigny v. Davallon, 2 Anst. R. 467.

of relief, by an alien enemy. Upon principle, there would not seem ordinarily to be any solid ground for any distinction. The disability to sue is personal. It takes away from the public enemies the benefit of the courts of a country, whether the suit be for the purpose of immediate relief, or to give assistance by a discovery in obtaining that relief elsewhere. Perhaps the discovery made might be available by a suit abroad; and then the same reason would apply against the auxiliary suit, as against the principal suit.? An exception, might perhaps be allowed, where the alien enemy is the defendant in a suit at law in the country, where he brings the Bill for discovery; since it may

be the only effectual means on - his part to establish a perfect defence to the suit at law. And, if a country will suffer an alien enemy to be sued in its courts, it is against common justice to disable him from the use of the proper means, to defend himself against a dishonest or unfounded claim.3

1 Albretcht o. Sussman, 2 Ves. & B. 323 - 326. ? Daubigny v. Davallon, 2 Anst. R. 467, 468 ; Cooper, Eq. Pl. 25.

3 The decision in Daubigny v. Davallon, 2 Anst. R. 467, is entirely in conformity with the doctrines held by the Courts of Common Law and the Prize Courts on this subject. Co. Litt. 129 (6). It seems, however, that in a later case in the Exchequer, cited in Albretcht v. Sussman, 2 Ves. & B. 324, 326, 327, it was held, that a Bill for a discovery would lie, notwithstanding the plaintiff was an alien enemy, thus in effect overturning the case in 2 Anst. R. 467. The Vice-Chancellor, in 2 Ves. & B. 326, said: “The case in the Court of Exchequer has gone the length of deciding, that to a Bill merely for a discovery as a defence at law, this plea (alien enemy) would not hold. And the principle seems to have been, that if an alien may be sued at law, as he would be allowed process to compel the attendance of his witnesses, he should have a discovery for the same purpose. But I did not understamd the Court to lay down, that an alien enemy could have any relief, or any thing but a discovery merely; and a decision to that effect would lead to the most extensive consequences.” Perhaps the doctrine of these different cases may be reconciled by attending to the particular circumstances of each. In Daubigay v. Davallon, 2 Anst. R. 467, the Bill was brought by the

$ 54. But, although an alien friend is not incapacitated to sue in Courts of Equity; yet this doctrine is

plaintiff for a discovery to enable him to commence a suit at law (probably in England). The discovery was denied ; and certainly the plaintiff could not have maintained the suit at law in an English Court; and if he meant to institute it in the enemy's country, it was open to the like objection, that he ought not to be aided there. The other case in the Exchequer, cited in 2 Ves. & B. 324, 326, seems, from the remarks of the Vice-Chancellor, to have been a Bill for a discovery filed by the party, who was the original defendant in a suit at law in England, to obtain evidence to serve as a defence in that suit. Now, if the original plaintiff could proceed in the suit at law against the original defendant, notwithstanding his being an alien enemy (which it seems difficult on principle to maintain), it seems but just and reasonable, that the defendant should be treated throughout as entitled to use all the evidence authorized by law in his defence. The original plaintiff ought not to be permitted in the suit at law to treat the original defendant as competent to be sued, and at the same time to treat him as incompetent to sue in equity; or, in other words, as incompetent to make a full defence to the suit at law. The suing of an alien enemy in an English court at law, might well be deemed on the part of the plaintiff an admission of the competency of the defendant to be sued, and a waiver of any objection to his alienage. A Bill in Equity for a discovery may be filed by an alien enemy in the courts of the country, of which he is the enemy, under circumstances, which may require, or at least may admit of very different legal considerations. He may file such a Bill in aid of a suit brought, or intended to be brought by him as plaintiff at law, in the courts of the country, where he brings his Bill; or, in the courts of the country, of which he (the plaintiff) is a subject; or, in the courts of a neutral country. In all these cases, it would seem clear, that his personal disability to sue, ought to preclude him from making use of such a Bill of discovery in aid of such a suit. On the other hand, the plaintiff, filing a Bill for a discovery, may be an alien enemy, who is sued at law as a defendant in the courts of the country, of which he is the enemy; or, in the courts of a neutral country, There may be good grounds for saying, that, in the two latter cases, he ought not to be permitted, on account of his personal disability, to maintain a Bill for a discovery in aid of his defence to the suit at law in a foreign, hostile, or neutral country, which would not, or at least might not apply with equal force to the former case. If a suit can be maintained at law against an alien enemy in the courts of a country, where he happens to be, or to whose jurisdiction he is already subjected, there is the strongest reason for saying, that he ought to be entitled to use all proper means to establish his defence upon the merits against such a suit. An alien friend, it is well known, may maintain a Bill for a discovery in aid of a suit in a foreign country. 2 Story, Comm. on Eq. Jurisp. $ 1495. But see contra, 9 Sim. 180.