
    City of Springfield vs. Marcellus D. Sleeper. Same vs. A. M. Sleeper. Same vs. P. W. Brewster.
    Hampden.
    September 21. — 22, 1874.
    Morton & Endicott, JJ., absent.
    It is within the discretion of the judge presiding at a trial to order several actions founded on the same subject matter, brought by the same plaintiff against several defendants, to be tried together, although the defendants employ distinct counsel, and the evidence in the several cases is different.
    . Three actions of contract upon the following instrument in writing signed by the defendants and others: “ Provided the city will place granite curb-stones around the large trees on North Main Street, for the purpose of protecting them, we the subscribers hereby agree to pay to the city the cost of the curbstones so" placed opposite our land on our side of the street.”
    At the trial in the Superior Court, Aldrich, J., ordered, the plaintiff objecting, that the cases should be tried together. The evidence against the defendants was different, and they employed different counsel. The presiding judge directed the jury to consider and decide each case separately, and called their attention to the evidence applicable to each case, and gave them instructions which were not excepted to. The jury found a verdict for the defendant in each case, and the plaintiff alleged exceptions.
    
      W. L. Smith, for the plaintiff.
    
      G. M. Stearns & H. Morris, for the defendants.
   Gray, C. J.

It was within the discretion of the court to order the three cases to be tried together. The difference in the evidence, and the employment of distinct counsel by the defendants, were circumstances to be considered by the court below, but did not entitle the plaintiff as of right to separate trials. Witherlee v. Ocean Ins. Co. 24 Pick. 67. Kimball v. Thompson, 4 Cush. 441. Commonwealth v. Robinson, 1 Gray, 555. Commonwealth v. James, 99 Mass. 438. Commonwealth v. Powers, 109 Mass. 353. Exceptions overruled.  