Dunn v. Mason — 7 Hill & Den. 154

Majority

p. 154

Dunn vs. Mason and another. The same vs. The same. The same vs. The same.

Headnote

A party moving to consolidate suits which are to be defended must show by his affidavit that the questions to be tried in them will be substantially the same.

Where the affidavit was “ that the defence in each and all of the actions will be substantially the same,” but the nature of the defence was not stated; held, insufficient.

Whether a consolidation of actions for libel will be ordered, quere.

II. Gray, for the defendants,

moved to consolidate these actions, which were brought for several alleged libels upon the plaintiff, published in the “ Elmira Gazette.” The first suit was commenced by capias, and the two last' by the filing and service of declarations. The libels complained of in the two last suits had not been published when the first suit was commenced ; but all the libels had been published before the plaintiff declared in either of the suits. In each declaration the plaintiff counted upon three different libels. Some of the libels affected the plaintiff as a citizen, and others as first judge of Chemung county. No plea had been interposed in either of the suits. The defendants stated in their affidavit “that the defence in each and all of the actions will be substantially the samebut the nature of the defence was not set forth.

N. Hill Jr., for the plaintiff,

insisted that a consolidation would not be ordered in actions for libel. He also contended that the defendants should have stated the nature of their defence, so that the court might judge whether the questions intended to be tried in the several suits were identical.

p. 155

By the Court,

It is not necessary to determine whether a consolidation should under any circumstances be ordered in actions for libels.^[1] The affidavit states, that the defence will be substantially the same in all of the suits. That may mean that there will be á justification in each of the suits; and then, as the libels contain a number of different charges, the questions to be tried will be different. It should appear that the questions to be tried will be substantially the same in all of the suits. ( Wilkinson v. Johnson, 4 Hill, 46 .)

Motion denied.

(a) (a) See Anon., 1 Chit. Rep. 210, note (a); Bayly v. Raby, (1 Str. 420;) B enton v. Praed, (1 Smith’s Rep. 423;) Nicholls v. Lefevre, (3 Dowl. P. C. 135;) Sherman v. McNitt, (4 Cowen, 85;) Myno v. Bridge, (2 Str. 1178;) Smith v. Crabb, (id. 1149;) 1 Tidd’s Pr. 664, ed. of ’28.