Definition
To sue is to initiate and prosecute a civil legal proceeding against another party — to invoke the jurisdiction of a court for the purpose of enforcing a right or obtaining a remedy. In modern American legal usage, the term is applied almost exclusively to civil actions, not criminal prosecutions. A party who sues is a plaintiff; the party sued is a defendant.
The term also appears in two recurring compound forms:
1. Sue out. To obtain by formal application to a court; to petition for and receive an order, writ, or other process. A litigant sues out a writ when they formally apply for its issuance. The phrase is archaic but appears throughout historical court records and early treatises.
2. Sue and be sued. A capacity clause found in corporate charters, organic statutes, and governmental enabling legislation, confirming that the entity has standing to bring and defend civil actions. The phrase is a term of art: it does not automatically waive sovereign immunity when applied to governmental entities, but rather acknowledges the framework within which consent to suit may be given.
Common Language
Modern common usage (Wiktionary): To file a legal action against someone, generally a non-criminal civil action; also, more broadly, to seek by request, to petition, to entreat, to court, or to follow.
Historical common usage (Webster's 1913): To follow up; to chase; to seek after; to endeavor to win; to woo. Also, to seek justice or right from another by legal process; to institute process in law against; to prosecute judicially.
The common and legal meanings share a root — pursuit, seeking — but have diverged sharply in everyday speech. In modern ordinary usage, "to sue" means exclusively to bring a lawsuit. The older senses (to woo, to petition, to follow) survive only in literature and historical texts. Researchers encountering "sue" in pre-nineteenth-century legal or literary sources should be alert to the broader meaning: a party "suing" a court or official was petitioning, not litigating against, that body.
Common Confusion
Sue vs. Prosecute. In lay speech, "prosecute" and "sue" are sometimes used interchangeably. In legal usage they are distinct: to sue is to pursue a civil action; to prosecute is to pursue a criminal charge on behalf of the state. Civil plaintiffs sue; the government prosecutes. Some historical sources use "prosecute" loosely to mean any pursuit of legal proceedings, which can mislead modern readers.
Covenant Not to Sue vs. Release. These are related but legally distinct instruments. A release extinguishes the underlying claim entirely; a covenant not to sue is a contractual promise not to bring an action, but does not necessarily extinguish the claim itself. Historically, the distinction mattered for joint-tortfeasor liability: a release of one could release all, while a covenant not to sue did not. See the Encyclopedia entry above for full treatment.
Why It Matters in Research
The term "sue" is deceptively simple but creates real navigational challenges in the Law Mind corpus.
First, historical scope of the term. Black's (both editions) and Bouvier's confirm that "sue" applies almost exclusively to civil proceedings — but early English sources and some colonial American materials use "sue" and "prosecute" interchangeably. Researchers working in pre-1800 materials should not assume that "sue" signals a civil action without checking context.
Second, "sue out" in writ practice. The phrase "sue out" is ubiquitous in early common law records — writs of habeas corpus, writs of error, mandamus — and signals the formal application process for obtaining court process. Researchers unfamiliar with this usage may misread historical case summaries as describing adversarial proceedings when the source is describing ex parte applications.
Third, "sue and be sued" clauses in governmental and corporate instruments. These clauses appear in territorial organic acts, municipal charters, and corporate formation documents throughout the nineteenth and early twentieth centuries. As Bouvier's notes and as confirmed by federal authority, such a clause in a governmental organic act does not constitute a blanket waiver of sovereign immunity — it is a recognition of capacity, not consent. Researchers analyzing governmental liability cases must distinguish capacity from immunity waiver.
Fourth, covenant not to sue as a research bridge. The phrase "covenant not to sue" connects the procedural concept of suing to the substantive law of contracts and discharge. Researchers following a thread from pleadings into contract law — particularly in multi-party tort or commercial contexts — should consult the Contracts & Commercial Law Encyclopedia entry on discharge.
Historical Dictionary Support
The historical dictionaries are consistent on the core definition but vary in depth and cross-referencing.
Black's (both editions) define "sue" straightforwardly as commencing legal proceedings against a party, applied almost exclusively to civil actions. The second edition adds the "sue out" sub-entry, which is the more practically important phrase for working with historical records. Both editions are silent on the governmental capacity dimension.
Bouvier's is the most substantive entry, offering the federal authority on "sue and be sued" in governmental organic acts and cross-referencing ACTION and SUIT. Bouvier's correctly flags that capacity to be sued is not the same as immunity waiver — a distinction that Black's does not draw.
Rapalje & Lawrence provides the most useful specialist cross-reference, pointing researchers toward the "suing and laboring clause" in marine insurance policies — a specialized but important use of "sue" in commercial law that none of the other historical dictionaries address. The covenant-not-to-sue cases cited by Rapalje & Lawrence illustrate early common law treatment of the release/covenant distinction.
Anderson's and Burrill's are unhelpful here: Anderson's redirects to SUIT without elaboration, and the Burrill's entry reproduced under this term is plainly misfiled (it describes estate administration under civil law) and should be disregarded.
No historical dictionary adequately treats the modern procedural framework governing who may sue (standing, capacity, real party in interest rules), which is now governed by rules of civil procedure rather than common law doctrine.
Jurisdictional Note
The right to sue — including capacity and standing requirements — is governed by both federal and state procedural rules. Federal courts apply Article III standing requirements (injury, causation, redressability) as a constitutional floor; state courts vary in how they define standing and capacity. In some jurisdictions, unincorporated associations, partnerships, or governmental subdivisions face specific capacity restrictions. Researchers should not assume uniform rules across jurisdictions when analyzing whether a particular party could sue or be sued in a historical proceeding.
Encyclopedia Cross-Reference
Discharge — Release and Covenant Not to Sue (The Law Mind Contracts & Commercial Law Encyclopedia)