
    Den ex dem. Edward Smith vs. Richard Fen, Henry B. Kimble, tenant. The Same vs. Lewis Smith, and others.
    EJECTMENT.
    In an action of ejectment brought upon a mortgage, the court will not allow the money clue upon the mortgage to be paid into court, if there is a bill in equity pending on tbe mortgage.
    The court will order a consolidation of several actions of ejectment whore there is the same question and defence in all the cases.
    These were several actions of ejectment brought by the lessor of the plaintiff upon a mortgage against a number of defendants.
    
      Wall moved for leave to pay into court the amount of money due upon the mortgage.
    
      L. Q. C. Elmer
    
    objected to the motion, and stated, that there was a hill in equity, pending upon this mortgage, and that therefore the money could not be paid into court, and cited Jiev. Laws 162, see. 1.
    Ewing, 0. J.
    We can only adopt this course when no bill in equity is pending. Leake v. Chambers, 1 South. 33.
    Motion refused.
    * Wall then moved to have these suits consolidated. [*336
    
      Elmer
    
    objected that a consolidation of the actions could not be made, until appearances had been entered, and consent rules exchanged; and the court being of that opinion, Wall, thereupon moved that David 0. Wood he permitted to defend as landlord, together with the tenants. The court having granted his application, he then moved to consolidate the said several suits, and read an affidavit of David 0. Wood the landlord, stating that all the premises in question, for which the above suits are respectively brought, are all held under one and the same title, and have been bought and sold as one and the same tract; that the declarations in said suits are on the demises of the same person. That the lessor of the plaintiff, as deponent believed and was informed, sets up a claim under two mortgages, that the last of the two mortgages, as claimed by the lessor of the plaintiff, covers the whole of said premises; that the said Henry B. Kimble, Lewis Smith and others, hold the property in their possession as the tenants at will of the said deponent; that the whole of said premises are used for carrying on the business of the deponent, which is conducted under his direction, and that the said tenants occupy different parts of said premises for the purpose of conducting said business, and of contributing their labor and services to the same, and which is done accordingly by them; that all said persons named as the tenants at will of the deponent, are laborers at a furnace, except Henry B. Kimble, who is the manager of said furnace for deponent, and that all said persons live in a short distance from said furnace, and that none of said persons pay this deponent any rent for the property occupied by them ; and further, that one of the said mortgages under which the lessor of the plaintiff claims title,'hath this day been paid and satisfied by deponent. This affidavit, Wall contended, was”sufficient to sustain the motion, and cited Barn, notes 176. It shewed, he said, that the ejectmentswere brought upon the same demise, the whole of the tenements being necessary to the conducting of the works, and all were included in one mortgage.
    
      Elmer objected, that this property was derived from different sources, and there may be different defences.
    C51EF Justice. Does the affidavit shew that the defenceis the same in all the cases ?
    . *337] * Wood said, wejjwill add that to the affidavit.
    It was accordingly done, and the affidavit resworn.
   Chief Justice.

The principle upon which consolidation is ordered is, that the same question is to arise in all the actions. The object of consolidation is laudable. It is to save costs; and if we can secure to the parties all their rights, and at the same time prevent unnecessary costs, it is desirable. The doctrine on this subject in the English books is somewhat incongruous. There is. a case in 2 Strange 1149, Smith v. Crabb, where the court refused to consolidate several declarations in ejectment, although it was suggested that the title was the same in all, assigning as a reason for refusal that the lessor might have sued the defendants at different times, and it would be obliging him to go on against all, when perhaps he might be ready in some of them only. But in the case of Grimstone v. Burgers and others, Barnes’ -Notes 176, the Court of Common Pleas ordered sixteen ejectments to be consolidated into one. And in the case of Doe ex dem. Pultney and others v. Freeman and others, on a rule to shew cause why the proceedings in thirty-seven actions of ejectment, brought against the occupiers of so many houses in Sackville street, should not be stayed, and abide the event of a special verdict, Lord Kenyon said it was a scandalous proceeding; that all the causes depended on the same title and ought to be tried by the same record; and ordered the rule to be made absolute, 2 Sell. Frac. 229; 2 Arch. Frac. 180. All these cases assert the power of the court to consolidate in actions of ejectment. Our practice act, Rev. Laws 421, sec. 58, gives a general power to consolidate unnecessary actions. The authority of the court extends to ejectment as well as other actions, but in its exercise in the former more difficulty exists and greater caution is required; for though the title of the lessor be. the same, yet where the defendants are different, they may have different defences. And if the actions are consolidated and the plaintiff recover, and afterwards obtain judgment for the mesne profits, one of the defendants, if another be unable, will be compelled to pay the whole. Notwithstanding, however, these difficulties, the court have the power and ought in a proper case to consolidate. We think this is such a case and shall, therefore, make the order, imposing on the defendants proper terms. There are two modes in which this purpose is effected; the one where the actions are actually consoli*338] dated, and the other which may be '^called a quasi consolidation, where one action is tried and the rest are ordered to abide its event.

Let these actions be consolidated.

The following is the rule which was entered in the above cases and sanctioned by the court: “

Upon application in behalf of David 0. Wood and said persons above named, as tenants in possession, the court having heard the affidavit of said David 0. Wood, and having also heard the arguments of counsel, do order that the several actions of ejectment against Richard Fen', in which the above defendants, excepting said David 0. Wood, were respectively notified as tenants in possession, be consolidated into one action in the manner above stated, and that the said David 0. Wood, the landlord of said defendants, be admitted defendant in such cause with said tenants, upon these terms, viz: That the same defences on the trial of said cause be set up by all the defendants, and not diverse and separate defences by the several defendants respectively —that the said defendants admit themselves to be in possession of the premises in question, and that no objection shall be taken on the ground that the defendants are not jointly possessed of the premises in question. On motion in behalf of James D. Westcott, Jun., attorney for the said defendants.  