Jackson ex rel. Pionier v. Schauber , 4 Cow. 78 ( 1825 )

Curia.

Where a number of causes are brought and all depend upon the same title, as here, and the questions tobe litigated, and the evidence, are the same in all, it is competent for cither party to make an application to this Court, before the Circuit arrives, that only one of the causes be carried down to trial; and that the plaintiff be not prejudiced by his omission to try others ; and, in a clear case, that they abide the event of the cause to be- tried. In passing upon such a motion, the Court would be guided by the admissions of the party against whom the motion should bo made. If the affidavits of the parties should agree that the points of inquiry and the evidence would be the same in all the causes, the motion would be granted. If they should disagree, though they should only leave the matter in doubt, the motion would be denied. Here neither party has applied for our direction; all the causes were noticed; an offer was made but not acceded to, at the Circuit, that eight of them should abide the event of the ninth, which the plaintiff contemplated trying. It was tried; the plaintiff was nonsuited, a case is made and proceedings stayed till a decision here. The plaintiff’s counsel gave notice the morning after the trial that he should not try the remaining causes ; and on the defendants’ moving for judgment as in case of nonsuit, they are met by the affidavit of the plaintiff’s attorney that the questions to be tried were the - same in all the causes. The only-dispute here, is about the costs, which must depend on the fact, that the questions and evidence were or were not the same in all the causes. If the former be the fact, it cannot be just that the plaintiff should be required to go through with the formality of a trial in each ; and repeated - decisions of this Court have pronounced him not in default, for taking the course which he has pursued. The only difficulty arjses from the form in which these motions for judgment, as in case of nonsuit, are brought forward. Owing to this, ^ ¿efen(jants have not yet been heard upon the question' whether, according to their views of the matter, the questions and evidence will be the same in all. Under the circum stances, therefore, we direct a rule to be entered; that the causes untried abide the event of the cause of Jackson, ex dem. Pionier and others, v. Lyon, (the cause last tried,) un less the defendants shall, within 20 days, file an affidavit that the last causes not tried do not depend on the same questions and on the same evidence as the cause last tried; and if they file such affidavit, then that the lessors of the plaintiff pay to the defendants their costs of the last Circuit, &c.

Van Vechten, said the causes did not depend on the same questions and the same evidence ; and an affidavit to that effect would be filed.

Rule accordingly.