Gray v. Wilson ( 1838 )

Green, J.,

delivered the opinion of the court.

There is error in the record in this case.

The hundred dollars deposited with Wilson the stakeholder, belonged jointly to Gray, Davis and Wilson, the original plaintiffs, there could,therefore, be no recovery except [in the name of all these parties. Wilson had no right to compromise the suit, and dismiss it, without the consent of his co-plaintiffs,

If he had received satisfaction for his part of the amount claimed, still the other plaintiffs had a right to prosecute the suit in the name of all three, for their use.

Perhaps the court at the trial, might have construed the previous order dismissing the suit as to Wilson, so as not to affect the rights of Gray & Davis. If so, there was error in the judgment.

At any rate, there is error in the record, for which the judgment must be reversed and the cause remanded for another trial, in the name of all the original plaintiffs.