CHAPTER VIII. BOOK IV. In general. CONSOLIDATING ACTIONS. IF two or more actions be brought by the same plaintiff, at the same time, against the same defendant, for causes of action which might have been joined in the same action, the court, or a judge at chambers, if they deem the proceedings oppressive, will in general compel the plaintiff to consolidate them, and to pay the costs of the application (a). 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 in another action upon the same title, 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 the rule was made absolute (b). So, three actions against different persons for the same assault were ordered to be consolidated (c); but in another and similar case the application was refused (d). The court have refused to consolidate an action against husband and wife, and an action against the husband alone (e). And it seems that the rule will seldom be granted in penal actions (f). Where six actions of trover had been brought against the same defendant by different plaintiffs employing the same attorney, the court refused to order the proceedings in five of them to be stayed to abide the result of one, it being sworn that the causes of action were different in all of them, and that the witnesses were different (g). Where three actions were successively brought by the same plaintiff against the same defendant, upon three promissory notes which became due at different times, the Court of King's Bench refused to consolidate them (h). But, in a case at Nisi Prius, it was intimated by Lord Tenterden, C. J., that if a party sue on a bill of exchange, and, after the action is commenced, another bill accepted by the same defendant, of which the plaintiff is holder, is dishonoured, and he bring a second action on that, a judge at chambers would, on application being made, direct the two actions to be consolidated (i): this, however, seems questionable. It is purely a matter of discretion with the court to order actions to be consolidated; they will, in general, consolidate them, if they can be joined, and if it appear that they were brought separately for the purpose of vexation or oppression. (a) Cecil v. Brigges, 2 T. R. 639: see Benton v. Praed, 1 Smith, 423. (b) 2 Sellon, 144: Doe Pulteney v. Cavan, Imp. K. B. 731: and see Grimstone v. Burgers, Barnes, 176: Doe v. Brenton, 6 Bing. 469: but see Smith v. Crabb, 2 Str. 1149, contra, in which case, however, it does not appear, but that there was some satisfactory ground for bringing the several actions. (c) Prac. Reg. 151: Anon., 1 Chit. Rep. 709, n.; Barnes, 341: and see Key v. Hill, 2 B. & Ald. 596. (d) Catlin v. Elliott, 1 Str. 420. (e) Swithin v. Vincent, 2 Wils. 227. (f) See Benton v. Praed, 1 Smith, 423. (g) Nicholls v. Leferre, 3 Dowl. 135. (h) Mussenden v. O'Hara, Tidd's Prac. 614. (i) Oldershaw v. Tregwell, 3 C. & P. 58 Where several actions are brought upon the same policy of CHAP. VIII. insurance, the court or a judge, upon application of the de- Actions on fendants, will grant a rule or order to stay the proceedings Policy of Inin all the actions but one, the defendants undertaking to be surance. bound by the verdict in such action, and to pay the amount of their several subscriptions and costs if the plaintiff should recover, together with such other terms as the court or judge may think proper to impose upon them (k). The rule or order may now be obtained, notwithstanding the plaintiff refuses his consent to it(1); and if the action which is tried be determined in favour of the plaintiff, the other defendants may (if necessary) obtain a stay of proceedings in their several actions, upon payment of the amount of their subscriptions and costs. Rule. Formerly, it was thought that a consolidation rule bound Effect of the the plaintiff as well as the defendant, and the court or judge could not, though fresh evidence had been discovered, permit the plaintiff to try the other actions (n). But now a different doctrine is established (o), the rule being for the benefit of the defendant. And in a late case, where actions against underwriters had been consolidated by rule of court, and the defendant had obtained a verdict in one, the court refused to restrain the plaintiff from trying a second cause included in the same rule, till the costs of the first were paid (p). The plaintiff, however, by proceeding in a second consolidated action, without applying to the court, loses the benefit of any terms which were imposed on the defendants by the consolidation rule (p).. The court or judge, under circumstances, may open the con- Rule, when solidation rule for the defendant, and permit a second cause to opened. be tried; if they do, they will in general extend to the second trial all such terms made compulsory on the party successful in the first cause, as are requisite for attaining the merits (7). Where a cause has been tried twice by special juries, and a verdict for the plaintiff returned on both occasions, the court will not open a consolidation rule for the trial of a second cause, unless it be shewn that the cause has not been fully brought before the jury (r). Formerly, before the late rules of pleading were introduced, At what Tim the consolidation was not granted until after plea pleaded; applied for. but latterly, the practice has been to consolidate at an earlier stage; and in a recent case, two actions having been brought by the same plaintiff against different defendants, on the same policy of insurance, the court consolidated them after a declaration had been delivered in one, and an appearance entered in the other, at the instance of the defendant in the latter action, though the plaintiff objected (s). So that it (k) Doyle v. Anderson, 1 Ad. & El. 635; 4 Nev. & M. 873, S. C. (1) Hollingsworth v. Brodrick, 4 Ad. & El. 646: 6 Nev. & M. 240, S. C. See the form of the rule in this case, 6 Nev. & M. 243, n.; Chit. Forms, p. 578. See Ohrly v. Dunbar, 1 Nev. & P. 244. And see the former practice. Park, Ins. Introd. (n) Doyle v. Douglas, 4 B. & Ad. 544. (0) See M'Gregor v. Horsfall, 4 M. & W. (p) See Long v. Douglas, Id. 545, n. (8) Hollingsworth v. Brodrick, 4 Ad. & Book IV. seems the actions may now be consolidated at any time after appearance, though before declaration. PART L. How applied for. The application for the consolidation rule is to be made to the court or to a judge. If made to the court, draw up a motion paper, inserting thereon or in it the titles of the several causes; and indorse on it the counsel's name, requiring him “to move for a rule to shew cause why the within actions should not be consolidated." If made to a judge, there is no need for a motion paper, and a summons will suffice, which should be intitled in the several causes, and be "for the plaintiff to shew cause why the within actions should not be consolidated." The rule is made absolute, or an order made, as above mentioned (t). After verdict for plaintiff, (if the actions have been consolidated by order), and judgment signed thereon, take out a summons before a judge, and obtain his order to enter up judgment, in the several other actions which were consolidated, and that the plaintiff be at liberty to sue out execution thereon; also, that one of the masters may tax the costs in all the causes, and that the defendant may also pay the costs of the application to be taxed. You must sign judgment, tax your costs, and sue out execution, (according to the terms of the order), as in other cases. Formerly it was usual to make a motion to the court for this purpose, but now a judge will make the order at chambers, as above noticed. By R. H., 2 W. 4, r. 104, “Where money is paid into court in several actions, which are consolidated, and the plaintiff without taxing costs proceeds to trial on one and fails, he shall be entitled to costs on the others up to the time of paying money into court” (u). (t) See forms, Chit. Forms, 577, 578. (u) See this rule noticed post, 976. CHAPTER IX. PAYMENT OF MONEY INTO COURT. to. CHAP. IX. WHEN a person is satisfied that he is indebted to another, General Obupon a claim for a sum certain, or capable of being ascertained servations as by mere computation, but disputes the amount claimed of him, then before action brought he may tender to his creditor the sum which he admits he owes, and then plead the tender in bar of the action. Or, after action brought he may, even though the claim be for an unliquidated amount, apply to a judge to stay the proceedings, upon payment of the sum the defendant admits to be recoverable, and to shew cause why, upon default of plaintiff's accepting it, he should not pay to defendant his costs subsequent to the application, if the plaintiff afterwards accepts that sum in satisfaction, as noticed post. Or, after action brought, and after, or in some cases before, declaration (a), he may, as subsequently pointed out in this Chapter, pay that sum into court, and plead the payment of it, and let the plaintiff afterwards proceed in the action at his peril. But if neither the existence of the debt, nor the amount claimed, be controverted, the defendant should pay the sum indorsed on the writ within four days of the execution of it, or after that time should apply to a judge for an order to stay the proceedings, upon payment of debt and costs, as directed in the next Chapter. In all cases where there has been a tender, but there is some doubt as to its sufficiency, it is safest to pay the money into court without pleading the tender(b), for though the payment of money into court subjects the defendant to costs up to the time of paying it in, if the plaintiff do not proceed further, nevertheless, if the defendant plead a tender, and plaintiff take issue thereon, and the defendant fail in proving it, he will thereby, at all events, subject himself to the costs of the trial and the general costs of the cause. We will proceed to consider, under the following heads, the practice as to the payment of money into court. In what Cases allowed, 969. Replication and Subsequent Pro- Costs on, 975. Effect of it as an Admission of Payment into Court in lieu of In what Cases allowed.] Prior to the stat. 3 & 4 W. 4, c. 42, s. 21, the general rule was, as it still is, "that where the sum demanded is a sum certain, or capable of being ascertained by mere computation, without leaving any other sort of discretion to be exercised by the jury," the defendant may pay money (a) Post, 972. (b) See per Lord Tenterden, C. J., Lea therdale v. Sweepstone, 3 C. & P. 342. In what Cases allowed. BOOK IV. In Assumpsit. In Debt. In Covenant. In Actions ex into court (d); and further, by that statute, "it shall be lawful for the defendant in all personal actions, (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauching of the plaintiff's daughter or servant), by leave of any of the superior courts where such action is pending, or a judge of any of the superior courts, pay into court a sum of money by way of compensation or amends, in such manner and under such regulations, as to the payment of costs and the form of pleading, as the said judges, or such eight or more of them as aforesaid, shall, by any rules or orders by them to be from time to time made, order and direct." As the rule of H. T., 4 W. 4, r. 18, post, 972, orders that no rule or judge's order to pay money into court shall be necessary, except in cases within the above act; but that the money may be paid in as of course, it becomes necessary, in the first place, to consider the cases in which money may be paid into court independently of that act. As regards an action on promises, the general rule is, that where the breach is substantially for the non-payment of money (e), but not otherwise (f), money may be paid into court as of course; in other cases the defendant must obtain a rule or order to pay it in, as being within the above enactment of 3 & 4 W. 4, c. 42. In debt on simple contract, the defendant may pay money into court as of course (g); so, in debt for rent (h); so, in debt on a policy of insurance (i) or for non-residence (k). But generally, in debt on a record or specialty, he cannot do so as of course; because in these cases the amount of the debt is ascertained, and cannot be varied from by the jury in their verdict (1): the defendant's course in these cases is to apply to the court or a judge to stay the proceedings on payment of the debt or penalty and costs; as to which see post, 984. As to staying the proceedings on paying the penalty, &c., in a penal action, see post, 985. In covenant, where the breach assigned is the non-payment of a sum of money, the defendant may pay money into court as of course (m), but not in other cases (n), as in an action for dilapidations or the like(o); and if the breach be not for nonpayment of money, the defendant must obtain a rule or order to pay the money in, as being within the above enactment of 3 & 4 W. 4, c. 42. In trespass, the defendant cannot pay money into court as of course (p); nor can this be done even in trespass for (d) Hallett v. East India Company, 2 Burr. 1120: and see Hodges v. Lord Litchfield, 9 Bing. 713; 3 M. & Scott, 201, S. C. (e) Gregg's case, 2 Salk. 596. (f) Strong v. Simpson, 3 B. & P. 15; (g) M'Quillan v. Cox, 1 H. Bl. 249. 257. (i) 19 G. 2, c. 37, s. 7. (k) 57 G. 3, c. 99, s. 43. (m) Gregg's case, 2 Salk. 596: Hallett v. East India Company, 2 Burr. 1120: Walnouth v. Houghton, Barnes, 282, 284: 19 G. 2, c. 37, s. 7. (n) Fullwell v. Hall, 2 W. BL. 837. (0) Sait v. Salt, 8 T. R. 47. But in a case before the 3 & 4 W. 4. c. 42, where the plaintiff in an action against his lessee for breaches of covenant, claimed by his particulars of demand a specific sum for dilapidations, the court held that the defendant might have that part of the demand struck out of the declaration, on payment of the sum claimed and costs. (1) See Leapidge v. Pongillione, 2 Str. (Smith v. King, 3 M. & Scott, 799). 890. (p) Squire v. Archer, 2 Str. 906. |