
    Gray vs. Wilson.
    PLEADINGS — ,70$»$ contractor — joinder, &fc. All the joint owners of a fund must join in any action for its recovery; and each has a right to use the names of all in bringing-and prosecutingthesuit. Therefore,though one be paid,he cannot» without the consent of all, withdraw his name or dismiss the suit, even as to himself, and if he be*permitted to do it by the court, it is error, because a defeats the action of which neither owner of the fund has exclusive control» having, therein no separate interest!
    About three weeks before the Nashville races in the fall of 1337, Samuel Wilson made a bet of $100 with John Carson upon a race to be run by certain horses. On the day of the race, Thomas Davis and Henry T. Gray agreed to become jointly and equally interested in the bet; and each of them placed in his hands $ 33 33£ as their shares of it; whereupon he deposited $100 in the hands of Samuel D. Wilson as stakeholder. The horse bet upon by S. Wilson and Gray and Davis, owing, as they said, to some unfairness in the starting, did not run; and they directed the stakeholder not to pay the money to Carson; and on the 7th November, 1837, they joined in an action of assumpsit against him for the money, in the circuit court of Williamson, and declared for money had and received. The defendant pleaded non-assump-sit and non-assumpsit within three years, and issues were-thereupon joined.
    The suit being in this state, in July, 1838, Samuel Wilson one of the plaintiffs, look from James H. Wilson his two notes payable to himself, expressing on their face that they were given for the shares of the plaintiffs respectively in the money deposited with the defendant; and in consideration of said notes he agreed to dismiss the suit and pay the costs. He informed Gray of this arrangement, and offered him the-smaller of the notes, which was $37, for his pait of the money sued for; but Gray refused to receive it.
    At July term of the court, Samuel Wilson, in pursuance, of said agreement, moved the court, Anderson, J., presiding, to enter a nolle prosequi-, and the court thereupon made the following entry on the record; “It is considered by the court, that said suit be dismissed as to him, the said Samuel Wilson. The judgment of the court in dismissing is without prejudice or injury affecting the rights of the other plaintiffs; and that thp said suit stand in the same plight and condition as to them as it heretofore stood.”
    At November term, the defendant pleaded, by leave of the: court, accord and satisfaction; and there was a replication, and issue joined. The cause was then tried before Judge Marchbanks and a jury of Williamson. On the trial the facts here stated appeared in evidence.
    His Honor stated to the jury, that Samuel Wilson and .Gray & Davis were partners in the money deposited as a wager in the hands of the defendant; that the right of action to recover it was joint; that Gray & Davis, without joining Samuel Wilson with them as a plaintiff", could not. recover their part of the money staked; that after the dismissal of the suit as to Samuel Wilson, it stood in the same condition as if he had not joined in the institution of the suit.
    The jury returned a verdict for the defendant; and a motion for a new trial being refused, Gray & Davis appealed in error.
    Alexander, for the plaintiffs,
    said; we insist, 1. That this was a joint cause of action, and Gray & Davis had a right to use the name of Wilson in recovering their demand even against his consent, as they could not sue or maintain the suit without his name; Wright vs. McLemore, 10 Yer. 235. And this doctrine applies as well to joint parol contracts as to specialties; 1 Saund. R. 154, n; 1 Chit. PI. 8, 9; Chambers vs. Donaldson, 9 East 471. These authorities show that the opinion of Judge Anderson was wrong in dismissing the suit as to Wilson.
    2. But the opinion of Judge Marchbanks was wrong; because although it be true, we were obliged to bring the suit originally in the name of all three, as they were partners, or joint owners of the $100; yet after the suit had been brought, the court had it completely under its control, and had a discretionary power to dismiss it as to Wilson, on his application. The error of Judge Anderson was in believing he was compelled to dismiss it. This discretionary power having been exercised in favor of dismissal, and every care taken in the entry to prevent its injuriously affecting the other two plaintiffs; the order should have been acted on by Judge Marchbanks, according to its words and intent. Instead of that, he charged against the order, and made the cause rest upon this; that if the jury believed the order Judge Anderson had made of record at a previous term, they must find for defendant; and the jury had no discretion; the merits of the cause which were certainly with the plaintiffs, were not left to them or acted on by them.
    But it seems after a suit has been rightly brought, one plaintiff may be non suited and the suit maintained as to the others; Chamberlain vs. Prescott, cited 1 Lord Ray. 380; and if, this be the law, there is no reason why the present action can-, not be maintained after the dismissal as to Wilson.
    
      ISTotE. Joinder of Co-Contractors.
    
    1. As Plaintiffs. Comyn’sDig, Abatement, F. 12. Consequences of non-joinder, and how advantage is to be taken of the omission. Id. 12.12.
    2. As Defendants. Act of 1789,c. 57, $5; Administrators of Kenon, 1 Haywood, 216; 4 Id. 152.
    R. C. Foster, Jr. and Marshall, for the defendant.
   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.  