Emery and Middleton v Mucklow
| Jurisdiction | England & Wales |
| Judgment Date | 27 May 1833 |
| Date | 27 May 1833 |
| Court | Court of Common Pleas |
English Reports Citation: 131 E.R. 813
IN THE COURT OF COMMON PLEAS.
S. C. 3 Moo. & Sc. 384.
[23] emery and middle-ton v. mucklow. May 27, 1833. [S. C. 3 Moo. & Sc. 384.] Where one of several plaintiffs dissents to bringing the action, the Court will not interpose, unless upon a suggestion of fraud. The Plaintiffs had been appointed, and had acted as trustees for the benefit of certain creditors of a tradesman, under a composition deed dated January 21st, 1833. In this capacity they sued the Defendant in replevin. Adams Serjt., upon an affidavit that Middleton had never executed the trust deed, that the creditors ahd Emery refused to indemnify him, and that Middleton had the opinion of counsel that the action was not advisable, obtained a rule calling on Emery and the Defendant to shew cause why Middleton's name, as a joint Plaintiff, should not be struck out. - Wilde Serjt., who shewed cause, relied on the fact of Middleton's having acted as trustee, and contended that the Court would not interfere between two Plaintiffs, unless upon suggestion of fraud or improper proceeding. , Adams urged the hardship of Middleton being compelled to proceed without indemnity in an action which he deemed unadvisable; but, although called upon, he adduced no authority for the interposition of the Court. tindal C. J. The usual course is, for the dissenting Plaintiff to release the Defendant, and the question as to his right to do so is then raised upon a suggestion to the Court, that the release is fraudulent; we have no authority in this stage of the proceedings, unless the [24] party's name has been used, not...
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