
    Rebecca E. Scott v. Mordecai Cohen, et al.
      
    
    In no case where several actions are brought against several defendants, will the Court consolidate ; 
       nor is the case of dower an exception to the rule, either at common law or by the Act of Assembly.
    Tried at Charleston, May Term, 1818, before Mr. Justice Johnson.
    *Tho demandant’s late husband was, in his lifetime, and during the coverture, seized of an entire square of land in the city or Charleston, which was sold under the decree of the Court of Equity; and the defendant became the purchaser of one of the lots. The demandant had sued out separate summonses against the defendant and six other persons, who were the purchasers of the remaining lots composing the square, to obtain a writ for the admeasurement of her dower.
    And a motion was made in the Circuit Court, on the part of several defendants, that the several suits should be consolidated, which was overruled by the Court. And the motion is now renewed in the form of an appeal from that decision.
    
      
       S. C. again, 2 N. & McC. 293.
    
    
      
       William Scott & Co. v. Thomas R. Brown.
      Tried before Mr. Justice Johnson, at Columbia, October Term, 1819.
      The plaintiff had sued on two summary processes against the defendant, for money due him on two notes of hand, for different sums, and payable at different times, and the Court below entertained a motion on the part of the defendant, to consolidate those actions, and gave the plaintiff leave to declare, as the sums, when consolidated, exceeded the summary jurisdiction of the Court; and this was a motion to reverse that order.
      The opinion of the Court was delivered by Mr. Justice Johnson.
      The result of this motion is wholly unimportant to the mover, and was only intended to test the principle and the practice of the Court. The consolidation of actions is to prevent a multiplicity of suits, which the law so much abhors, and to relieve the defendant from the unnecessary expenses of several actions, wllen ^re rights of the parties may be fully tried in one, and is so far *a matter of discretion, that the Court may or may not order it, when those objects are not attained. Cecil v. Brigges, 2 D. & E. 639 ; 1 Tidd, 556; Impey K. B. 131. If this view of the subject had been taken by the Circuit Court, the motion in this case would not, probably, have prevailed; for, instead of answering the purposes of consolidation, it is calculated to increase the cost at least twofold, there being at least that difference in the costs of actions in the summary and general jurisdiction; but as it has been sought by the defendant, and cannot now better the condition of the plaintiff, as he cannot get a trial until the next Circuit Court, when the case in its present form will stand for trial, it is unnecessary to reverse the order, and the motion is, therefore, refused.
      The principle on which the case was decided in the Court below, was, that in some cases a defendant would be allowed to avail himself of a defence in the general jurisdiction, that he would not, in the summary; for instance, where the titles to land might come in question, under our discount law. And if a cause of this sort should occur, I should think the Court bound to order a consolidation, or if the number of summary processes was so great as to make the costs greater than a single action in the general jurisdiction, the same rule ought to prevail. I remember a case of this character, brought before my brother Bat, on the circuit. It was this: the defendant had given to the plaintiff sixteen or seventeen different notes of hand, all within the summary jurisdiction of the Court, and he sued out separate processes on each, when one action of assumpsit would have covered the whole; these cases were, I think, with great propriety, ordered to be consolidated.
      Justices Colcock, Non, Gantt, and Richakdson, concurred.
      
        Nott and Me Cord, for the motion; Levy, contra.
    
   The opinion of the Court was delivered by

Johnson, J.

The questions, arising out of this ease, may be considered in a genera] view, with reference to the consolidation of actions, and the proceedings in dower at common law, and under the Act of the Legislature.

When a party brings several actions, the Court will not compel Mm to consolidate, unless it be against the,same defendant, and for a cause of action of a similar nature, in which the issue is the same ; and in no case where the action is against several defendants. Tidd’s Practice, 554. Thomson v. Shepherd, 9 Johnson’s Reports, 262. Smith v. Crabb, 2 Strange, 1159. Mynot v. Bridge, Ibid, 1178. Not in actions ex delicto ; because each is separately liable for the wrong done : and not in action ex contractu; because, if they ought to be joined, and are not, they may plead it in abatement. It was therefore incumbent on the defendant to have shown that the proceeding’s in dower formed an exception to the general rule; and although it has been ingeniously attempted, I think it has not been done, in relation to the present case. The proceedings in dower possess all the qualities of proceeding in other eases, and must be governed by the same *rules in relation to those who must or must not be parties, unless it be governed by rules peculiar to itself, and I think none such exist, when the thing, with which the demandant is to be endowed, is divisible, and does not possess an entire unity of character. Now, if the husband was possessed of divers tenements, of which the widow might be endowed, severally, and they were all in the possession of, or claimed by, an individual, as the heir or executor, and she were to issue several summonses against him, for each of the tenements, she might be compelled to consolidate, for the reason given in the rule. But when several persons are in possession of several tenements, of which she is entitled to be endowed, separately, whose reasons for refusing to assign her dower she is not bound to know, and which may be as multifarious as there are persons, she may, according to the rule, proceed against them severally, because their wrongs are several, and distinct.

In support of the present motion, 2 Fitz. Nat. Brev. 141, has been cited; from which it appears that the widow might have one writ, for the admeasurement of dower, of all the lands lying within the jurisdiction of the Court, from whence it issued, although there be several tenants. This may be true, and yet it does not follow that she may not have separate writs against each of the tenants of distinct tenements; for in trespass by several, the plaintiff may at his election sue them jointly or severally ; and it has been shown that they are not to be consolidated. Besides, if they were the tenants of the heir-at-law, or if he alone hath deforced her, then it is shown that the remedy was alone against him, although there were several tenements; and if she had proceeded to issue several summonses, they would have been consolidated. Thus, I think, the law stood before the Act of Assembly of 1786 ; and it only remains to be inquired, whether that Act has changed the nature of the proceedings in relation to the parties. P. L, 408. 1 Brev. 270. It requires that the summons shall be ^directed to the heir-at-law of the deceased, “ if of full age, or to his or her guardian, if he or she Shall be an infant, and if there be no guardian, then to the executor or administrator, or to any other person or persons, who may be in possession of any of the said lands, commanding him, her, or them, to appear,” &c. It is not necessary to go into a minute examination of this Act to show its meaning, as relates to the present question ; it is sufficient to say, that it nowhere expressly confines the demandant to a single writ for all the lands of her deceased husband ; it is sufficient to show, that the reverse of that proposition must necessarily follow from the claim before us, and which was relied on to support it. I feel warranted in saying, that there is no case in which the rights of a person, not a party to the action, is concluded by the judgment of the Court. Now the Act requires, that the summons shall, in the first place, be directed to the heir, if he be of age, and if a minor, to his guardian ; and if there be no guardian, then to the executor or administrator, or to any other person or persons who may be in the possession of any of the said lands. In the first case, the heir is the party entrusted, and in case of minority, he is made a party through the means of his guardian, if he have one, or through the executor or administrator ; and he is concluded by the judg-' ment of the Court, when thus made a party. But surely it will not be insisted, that those who hold lands, independent of the heir, and who are not parties, are. And if, on the contrary, the heir was to be concluded by a judgment against a person in the possession of a distinct tenement, as to all the lands of his ancestor, it would literally be deciding on the rights of parties without the possibility of their being heard ; and yet, all this would follow, if the construction contended for were to prevail. The only possible objection to the. mode of proceeding adopted in this case, is, the introduction of a multiplicity of actions, and the consequent increase of expense. And yet, the same objection *wóuld apply to all actions, in which a plaintiff has a right to bring joint or several actions against several, for the same wrong ; and these, it has been shown, cannot be consolidated. And the weight of this objection is in a great degree obviated by the consideration, that in this, as in the cases above alluded to, the defendants, if sued jointly, might sever in their defence ; and in that case, the costs would not be greatly diminished. And on the other hand, innumerable inconveniences might result from a different mode of proceeding, unless all the defendants thought proper to join in the defence. The record would be incumbered with a multiplicity of issues, always perplexing to a jury, and therefore to be avoided, if possible. And to determine it finally, you must wait until all the parties chance to be ready at the same moment, which would lead to endless delays. And moreover, the usage and practice of the Courts, so far as I am conversant with it, is in accordance with this view of the subject. I am, therefore, of opinion that the motion ought to be dismissed.

Note. — As to the general rule, see Thompson v. Sheppherd, 9 John. 262, where the Court said, “ The motion for a rule that these causes be consolidated must be denied. The notes are of different dates, for different sums, and payable at different times; and for any thing that appears, different defences maybe set up in the several suits. To compel a consolidation, under such circumstances, would be going farther than is the usual practice of this Court, or the K. B. in England ; (1 Caines’ Rep. 114; Imp. K. B. Prac. 668; 1 Tidd, 556;) though the case of Cecil v. Brigges, (2 Term. Rep. 639,) would seem to extend the consolidation rule to all actions between the same parties, and brought at the same time, where the causes of action might be comprised in the same declaration. A liberal extension of this rule is well calculated to prevent oppression, by an unnecessary accumulation of costs, and we should be inclined to say, that where separate suits are brought upon notes or contracts made at the same time, and which might have been united in one action, and when the defence is the same in all, a consolidation rule ought to be granted.” R.

See 2 N. & McC. 440; 10 Rich. 142; 2 Bail. 380.

K. L. Simons, for the motion ; H. A. De Saussure, contra.

All the judges concurred. 
      
       4 Stat. 742. See 9 Rich. 397; 2 Bail. 319.
     