Jackson ex dem. Swartwout v. Chamberlin — 5 Cow. 282

Majority

p. 282

Jackson, ex dem. Swartwout and wife against Stiles Chamberlin, tenant. The same, ex dem. The same, against The same, in five other actions of ejectment, against different tenants.

Headnote

Several ejectment causes depending on the same question and substantially the same evidence directed to abide the event of such cause among them as the plaintiff should notice for trial.

I. Seelye moved to consolidate these causes, on an affidavit of the partner of the attorney for the tenants, that he was well acquainted with the titles of hoth parties, &c. that he was informed and believed, and had good reason to believe, that the lessors had caused these action#to be brought on the same grounds, and the same title which they set up in Jackson ex dem. Swartwout and wife v. Johnson, (ante, 74;) that the plaintiff’s claim of title in all these causes is the same, and derived from the same source; and that the plaintiff’s evidence on the trial would be substantially the same in each. That, as he was informed and believed, the tenants all claimed title from the same source; and that the same evidence would be adduced by all the tenants, on the trial, varying only, in the manner of conveying down the title to them. That the venues were all laid in the county of Otsego ; and the demises all laid on the same day. That he verily believed that a trial in one would settle the plaintiff’s rights in all the other causes.

The motion was founded on the authority of Jackson v Schauber, (4 Cowen, 78;) and,

J. O. Morse and D. Cady, contra,

agreed that, within the case cited, one of these causes should determine the whole ; and the only question was, whether the court would designate the cause to be tried; or the attorney for the plaintiff should elect, on noticing for trial.

Seelye insisted, that the court should name the cause in the rule.

Cady said this would be unsafe; for the defendant in the cause named might die before the notice of trial served; and the cause thus be abated.

p. 283

Rule. “ That all the causes abide the event and final determination of the one which the plaintiff may elect to notice for trial; and that whatever judgment may finally be rendered in1*the cause thus noticed for trial, shall be entered in all the other causes ; and the party prevailing shall he at liberty to make up and file records therein accordingly.”