Norton v. City of Portsmouth , 31 F. 326 ( 1887 )

Colt, J.

I am of opinion that the motion of the defendant for an order of court that the issues of fact arising upon the third plea may be first tried, should be granted. By the law of New Hampshire, as laid down in the recent case of Owen v. Weston, 63 N. H. 599, 4 Atl. Rep. 801, whether all or a part of the issues in any action should be tried at one time, is a question of justice and convenience. This being an action at law, I see no reason, under section 914 of the Revised Statutes, why the practice of the United States courts should not conform to that of the state. In the present case, I am satisfied that justice and convenience call for the trial first of the issues arising upon defendant’s third plea, and that the defendant should not be put to the costs, expense, and trouble of a trial on the merits until a determination of the questions raised by that plea.