Lunatic, or non-conzpos mentis, may main tain an action, which should be in his own name. Broom, Part. 84 ; Browne, Act. 301 ; Hob. 215 • 8 Barb. N. Y. 552. His wife may appear, iihe have no committee. 7 Dowl. 22. An idiot may by a next friend who petitions for that purpose. Browne, Act. 301 ; 2 Chitty, Archbold, Pract. 7th ed. 909.
17. Married women cannot, in general, sue alone at common law, Broom, Part. 74 ; but a married woman may sue alone where her husband is civilly dead, see 4 Term, 361 ; Croke Eliz. 519 ; 9 East, 472 ; 4 Esp. 27 ; 2 Boa. & P. 165 ; 1 Selwyn, Nisi P. 286 ; or, in England, where he is an alien out of the country, on her separate contra,cts, 2 Esp. 544 ; 1 Bos. & P. 357 ; 2 id. 226 ; 11 East, 301 ; 3 Campb. 123, while he is in such con dition. Broom, Part. 114.
So she may sue alone after a sentence of nullity or divorce a vtnculo, 1 Gow. 10 ; 9 Barnew. & C. 698 ; 8 Term, 548; but not after a divorce a mensa et Moro, or voluntary sepa Dation merely. 3 Barnew. & C. 297.
She may, where he is legally presumed to be dead, 2 Campb. 113 ; 5 Barnew. & Ad. 94; 2 Mees. & W. -Exch. 894, or where he has been absent from the country for a very long time. 12 Mo. 30 ; 23 Eng. L. & Eq. 127. See 11 East, 301 ; 2 Bos. & P. 226.
When the wife survives the husband, she may sue on all contracts entered into by others with her before coverture, and she may recover all arrears of rent of her real estate which became due during the cover ture, on their joint demise. 8 Taunt. 181 ; 1 Rolle, Abr. 350 d. She is also entitled to all her real property, and her chattels real and cboses in action not reduced into possession by tire husband. Broom, Part. 76.
1S. Partners. One cannot, in general, sue another for goods sold, 9 Barnew. & C. 356 ; for work done, 1 Barnew. & C.74 ; 7 id. 419 ; for money had and received in connection with a partnership transaction, 6 Barnew. & C. 194 ; or for contribution towards a pay ment made under compulsion of law. 5 Barnew. & Ad. 936 ; 1 Mees. & W. Exch 504. See 1 Mee& & W. Exch. 168 ; 2 Term, 476. But one may sue the other for a final bal ance struck, Broom, Part. 57 ; 2 Term, 479 ; 5 Mees. & W. Exch. 21 ; 2 Crompt. & M. Exch.
361 ; see JOINDER; and they may sue the administrator of a deceased partner. 4 Wisc. 102.
Survivors. The survivor or survivors of two or more jointly interested in a contract not running with the land must sue as such. Addison, Contr. 285 ; Broorn, Part. 21 : Arch bold, Plead. 54 ; 1 East, 497 ; Yelv. 177 ; 1 Dall. Penn. 65, 248 ; 4 id. 354 ; 2 Johns. Cas. N. Y. 374 ; 7 Ala. 89.
The survivor of a partnership must sue alone as such. 2 Salk. 444 ; 9 Barnew. & C. 538 ; 4 Barnew. & Ald. 374 ; 2 Maule & S. 225.
The survivor of several, parties to a simple contract, should describe himself as such. 3' Conn. 203.
Tenants in common may sue ea ch other singly for actual ouster. Woodfall, Landl. & Ten. 789. See JOINDER.
Trustees must sue, and not the cestuis que trust. 1 Lev. 235 ; 15 Mass. 286 ; 12 Pick. Mas... 554 ; 4 Dan. Ky. 474. See JOINDER.
Defendants.
19. All persons having a direct and im mediate legal interest in the subject-matter of the suit are to be made parties. The proper defendants to a suit on a specialty are pointed out by the instrument.
In case of simple contracts, the person made liable expressly by its terms, 3 Bingh. N. c. 732 ; 8 East, 12, or by implication of law, is to be made defendant. 2 narswood, Blackst. Comm. 443 ; 3 Campb. 356 ; 1 H. Blackst. 93 ; 2 id. 563. See 6 Mass. 253 ; 8 id. 198 ; 11 id. 335 ; 1 Chitty, Pl. 24. Where there are several persons parties, if the liability be joint, all must bejoined as defendants, either on specialties, 1 Williams, Saund. 154, or simple contracts. Chitty, Contr. 99. If it be joint and several, all may be joined, 1 Williams, Saund. 154, n.4, or each sued separately, 1 Williams, Saund. 191, c ; Comyns, Dig. Obligation.s (G); 3 Term, 782 ; 1 Ad. & E. 207 ; if it be several, each must be sued separately. 1 East, 226. The presumption is, in such case, that a 'written agreement is joint, 2 Camph. 640 ; 3 id. 49, 51, n.; otherwise of verbal contracts. 1 Ad. & E. 691 ; 3 Barnew. & Ald. 89 ; 1 Bingh. 201 ; Broom, Part. 121.
Alien enemies may be sued, Broom, Part. 18-21 ; 1 W. Blackst. 30 ; Croke Eliz. 516 ; 4 Bingh. 421 ; Conlyns, Dig. Abatement (E 3) ; and, of course, alien friends.