Jackson v. Cooper — 1 Cole. & Cai. Cas. 154

Majority

p. 154

Jackson, on the demise of John Jauncey, v. Martinus Cooper and James Styles.

Headnote

THIS was an action of ejectment, in which the defendants severed in their appearances, and entered into separate consent-rules. The plaintiff, on motion, obtained leave to amend by altering the name of the lessor of the plaintiff from John to William Jauncey; but the notices on which the motion was founded were entitled as above, against both defendants.

Benson

now moved to set aside the proceedings fox' 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 attornies of the defendants. For there was not then any suit in existence such as that in which the notices purported to be given.

Hopkins, for the plaintiff,

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.

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

p. 155

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 tlie 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. The notice must be as the cause was originally entitled, and a copy served on all the attornies; for otherwise it would imply a distinct issue in each suit.

Motion refused with hosts to the plaintiff.