Jackson v. Cooper — 1 Cai. 19

Majority

p. 32

Jackson, on the demise of Jauncey, against Cooper and Styles.

Headnote

In ejectment against several defendants, though they sever in their pleadings, and enter into separate consent rules, the notices and pleadings must be entitled against all, as at the commencement, but each party must be served with a separate notice, &c.

This was an action of ejectment, in which the defendants severed in their appearances, entered into separate consent rules, and pleaded separately.

The plaintiff had, in a former term, obtained leave to amend, by altering the name of the lessor of the [*20] plaintiff from John to * William Jauncey; but the notices on which the motibn was founded, were entitled as above, against both defendants.

Benson

now moved to set aside the proceedings for irregularity, contending that, as the defendants had severed, the original suit became divided into two distinct causes. That, therefore, there should have been two separate notices, each entitled against one defendant, and served on the different attorneys of the defendants. For there was not then any suit, in existence, such as that in which the notices purported to be given.

Hopkins,

contra, insisted the notice was perfectly regular, and likened it to the case of a suit against two, where one is outlawed, yet the proceedings are entitled against both.^[1]

The objection taken against the notices and rules is, that, as the defendants appeared by distinct attorneys, and entered into separate consent rules, these oir

p. 33

cumstanees required separate and distinct proceedings, and ought to have been entered and entitled as separate; that is, that the notices should have been separate, addressed to each party, and the rules entered accordingly. The notice given to Van Schaick, attorney for Cooper, is entitled against two; and it is on that notice the application is made. The court are of opinion that this is the regular way in which the notice should be entitled; though each party should be served. It does not follow, that appearing separately, and entering into separate consent rules, justifies or requires a different practice; for pleading separately does not make separate suits.^[1] The notice must be as the case was originally entitled, and a copy served on all the attorneys; for otherwise it would imply a distinct issue in each suit.

Motion refused, with costs to the plaintiff.

(a) (a) Therefore, in such a case, only one venire issues, which is, “ therefore, as well to try this issue as the said other issue (or issues) above joined, between the said A. B. and the said C. D.,” (or “ and between the said A. B. and E. F.”) “let a jury,” &o.