No. 2696. Book 4, tit. 7, chap. 1, sec. . 1, § 5, 6. No. 2697. § 5. When one of several obligees is dead. 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. (a) 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;(b) 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. § 6. When the cause of action has been assigned. 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, cannot be assigned; 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 (a) Peters v. Davis, 7 Mass. 257. (b) Garret v. Taylor, 1 Esp. N. P. 117; Baker v. Jewell, 6 Mass. 460; Austin v. Walsh, 2 Mass. 401; Beach v. Hotchkiss, 2 Conn. 697. No. 2698. Book 4, tit. 7, chap. 1, sec. 1, § 7, 8. No. 2702. 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 just 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 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. § 7.--In case of bankruptcy or insolvency. 2701. 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. § 8.-When a foreign government is entitled to sue. 2702. To entitle a foreign government to sue in its own name, it must have been recognized by the government of the United States. (a) (a) 3 Wheat. 324; Story, Eq. Pl. § 55. No. 2703. Book 4, tit. 7, chap. 1, sec. 2. No. 2704. 9. When a corporation is entitled to sue. 2703. A corporation may sue in its corporate name on all contracts made on its behalf by its officers or agents; (a) and if a mistake has been made in its name in making the contract, it may sue in its true name,(b) and it can sue only in the name and style given to it by law. (c) In general, a corporation chartered by the laws of one state can sue in the courts of another.(d) A corporation aggregate not being in its corporate capacity a citizen, cannot sue in the courts of the United States a citizen of another state than the one in which it is located; but the court will look behind its corporate name, and if it be composed exclusively of the citizens of one state, it may sue a citizen of another state in those courts. (e) Two corporations may join in an action to recover a joint claim, as where money was deposited in a bank to their joint names. (f) But although they may be tenants in common, if they can maintain each a separate action, they cannot join, (g) SECTION 2.-OF DEFENDANTS IN ACTIONS ex contractu. 2704. This section will be divided as nearly as may be as the one which has immediately preceded it. (a) Binney v. Plumley, 5 Verm. 500. (b) Middleton v. McCormick, 2 Pen. 500; Hagerstown Turnpike v. Creeger, 5 H. & J. 122; Alloway's Creek v. String, 5 Halst. 323; Berks and Dauphin Co. v. Myers, 6 S. & R. 16. (c) Porter v. Neckervis, 4 Rand. 359. (d) Bank of Augusta v. Earle, 13 Pet. 519; Williamson v. Smoot, 7 Martin (Lo.) R. 31; Bank of Michigan v. Williams, 5 Wend. 478; Bac. Ab. Corporations, E 2, Bouv. ed. (e) Hope Ins. Co. v. Boardman, 5 Cranch, 57; Bank of U. S. v. Deveaux, 5 Cranch, 61. (f) Sharon Canal Co. v. Fulton Bank, 7 Wend. 412. (g) Rehoboth and Seekonk v. Hunt, 1 Pick. 228. No. 2705. Book 4, tit. 7, chap. 1, sec. 2, § 1, art. 1. § 1.-Between the original parties. No. 2706. 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.(a) Under this present head our inquiries will be confined to the subject of liability ex contractu, and when only one person is liable. This liability will be considered with regard, 1, to simple contracts; 2, to contracts under seal; 3, to debts of record. Art. 1.—Of liability on simple contracts. 2706.-1. The party upon an express contract, is he by whom it was concluded, and this, though the consideration 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 generally in his own name,(b) he is liable, unless in the case of a person acting in the capacity of agent for the government. (c) (a) Bartlett v. Dimond, 14 Mees. & Wesb. 407. (b) Thomas v. Bishop, Str. 955. (c) Hodgson v. Dexter, 1 Cranch, 345. No. 2707. Book 4, tit. 7, chap. 1, sec. 2, § 1, art. 1. No. 2708. 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. (a) 2707.-2. Upon implied contracts the party is equally liable as upon an express agreement. In a policy of insurance, it is always understood, and, therefore, tacitly agreed, that the policy broker shall alone be liable to the underwriter for the premium, and that the assured shall pay it to the broker, (b) unless there has been some fraud or unfair dealing. The consignor or shipper of goods is liable for the freight, and may, therefore, be sued for it, unless he stipulates to the contrary. (c) But the consignee becomes liable for it, by accepting the goods, (d) for if he refuses the goods, he will not be liable unless upon his express contract, as if he ordered the shipment.(e) And so the indorsee of a bill of lading will also be liable by accepting the goods; (f) 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.(g) 2708.-3. 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 (a) Boson v. Sandford, Carth. 58. (b) De Gaminde v. Pigou, 4 Taunt. 246. (c) Moore v. Wilson, Ï T. R. 659. (d) Cock v. Taylor, 2 Campb. 587; S. C. 13 East, 399. (f) 2 Campb. 587; 13 East, 399. (g) 1 East, 507. |