Jackson ex dem. Potter v. Scoville

By the Court, Savage, Ch. J. The facts are that the lessors of the plaintiff claim a military lot in Ca mill us, as heirs at law of the soldier who merited the lot. The defendants, eleven in number, are in possession severally of distinct portions of the lot, but without any connection or community of interest, holding by separate titles, but all derived from the same person, who they insist was the soldier who merited the lot, and who is a different person from him under whom the plaintiff claims. There is but one suit brought against all the persons in possession of the several parcels of the lot. The defendants wish to sever in their defences, and have filed common bail separately, and tendered separate consent rules, which the plaintiff’s attorneys refuse to sign. A joint suit was brought to save unnecessary expense. The English practice, as stated by Adams, p. 236, is that where several ejectments are brought for the same premises [97] upon the same demise, they will be consolidated ; but where the possessions of the tenants are different, the court will not join them on motion of either party. If the plaintiff moves for that purpose, it will be objected that each defendant must, have a remedy for his costs. If the defendant moves, it will be answered that the plaintiff might have sued at different, times, and that if the actions were consolidated, he would be obliged to go to trial against all, when perhaps he might be ready to proceed against, a part only. The latter ground is not applicable to a case where the plaintiff’s title against, all is the same. In Jackson v. Hazen, 2 Johns. R. 438, the suit was against five, who entered into the consent rule, and pleaded jointly. Three of the defendants occupied jointly and two severally. It was decided that the plaintiff must prove a joint possession, and the two defendants had judgment in their favor. In this decision the court were influenced by the consideration that, great injustice might be done by making the defendants jointly liable for the mesne profits. The case of Jackson v. Haines, 5 Johns. R. 278, was "similar to the preceding in some respects. There were five defendants jointly prosecuted, who pleaded jointly, and entered into the consent rule jointly ; but they all had separate possessions, and the plaintiff had judgment against them separately. This case has been supposed to overrule the case of Jackson v. Hazen; but they were not alike. It is said in the latter case that a joint possession in the defendants need not. be proved, which had been decided otherwise in the first, case, but there is no inconsistent in the two decisions, nor does either of them precisely apply here. In both cases the defendants voluntarily entered into a joint consent rule and pleaded jointly, which the defendants here refuse to do. The case of Jackson v. Stiles, 3 Cowen, 356, only decides that where two defendants are jointly sued in ejectment, they cannot sever without stating in the consent rule, &c. the co-defendant as impleaded, &c. The object of the plaintiff here to save expense, ought to be encouraged by the court; but if the plaintiff’s claim is good, the saving of expense operates in favor of the defendants, and if they do [98] not object to separate suits, he need not. If the plaintiff* wishes to bring but one suit to try his title, and save expense to himself in case of failure, a rule of practice was recognized in Jackson v. Schauber and ten other causes, by which but one may be tried, provided (he defences are alike; if (he defences are different, there is no reason why the defendants should all be compelled to go to trial together. The action of ejectment is an action of trespass, and in such actions the defendants may sever; it is their right to do so; but how can they sever unless each one may enter into the consent rule for himself. It may be very important to the defendants to do so; they may have different defences, (hongh they all originate from one common source; some may make good defences,- while others have none at all; some also may be necessary witnesses for the others; this, however, they may be, if no evidence is produced against them. The trespasses here are upon distinct premises, at different times, and if a recovery should be had against all, they would all be liable, though unjustly, for the mesne profits of each other. There might be difficulty about it, and the proceedings become very complicated; and although a joint suit ought to be encouraged where all parties agree to it, as was said in Jackson v. Haines, I do not think they should be compelled to join when they wish to sever. Motion granted.