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term to sign his judgment (a). In resisting the application, it was urged that it would be unjust to prevent the plaintiff from signing judgment, and so deprive him of the benefit of it in his favour in a subsequent action between the same parties; and that the costs of signing judgment would not be greater than the costs of an application to stay the proceedings. Mr. Justice Patteson put the case of an action of trespass and a plea of right of way, and a verdict for the plaintiff, with 18. damages, and asked if it would be contended that the defendant might stay the judgment on payment of the 1s. and costs?

The plaintiff is of course entitled to all the costs of the cause reasonably incurred before the rule for staying the proceedings, but not to any costs vexatiously incurred. Where the Master, in such a case, refused to allow the plaintiff the costs of entering and passing the record for the Middlesex Sittings twelve days before the sittings, the Court refused to interfere, it being a matter on which the Master ought to exercise a discretion (b).

It may be observed, that a Judge's order, that upon payment of debt and costs by a certain day all proceedings should be stayed, is only conditional on the defendant, and the payment cannot be enforced by rule (c); but it is now usual to include in the order a stipulation that, if the debt and costs be not paid by the specified time, the plaintiff shall be at liberty to sign judgment for the amount due.

The right of mortgagors, in actions of ejectment, to pay the mortgagee, or to bring into Court the principal, interest, and costs, has been already noticed (d).

(a) Peat v. Mangnall, 6 D. & L. 261.

(b) Keen v. Smith, 5 Dowl. 286; and see Evans v. Watson, 3 C. B. Rep. 327; 15 L. J. (N. S.), C. P. 256; 4 D. & L. 193, noticed in a subsequent

Chapter on the Taxation of Costs.
(c) Fricker v. Eastman, 11 East,

319.

(d) See ante, p. 204; and see Sutton v. Rawlings, 3 Exch. Rep. 407; 18 L. J. (N. S.), Exch. 673.

CHAPTER XXXV.

STAYING PROCEEDINGS ON THE CONSOLIDATION OF ACTIONS, AND WHERE THE DEBT HAS BEEN PAID BY THIRD PARTIES.

THE same person cannot be harassed twice for the same cause of action, and if he is so sued he has a good defence at law and may plead the pendency of the other action (a), or the Court will interfere summarily (b); and if two actions are depending at one time by the same plaintiff against the same defendant, for different causes of action which may be joined, the Court will, on account of the oppression, by an exercise of its equitable jurisdiction, compel the plaintiff to consolidate the actions (c), and in such a case also to pay the costs of the application (d).

It makes no difference whether the actions be on contract or in tort; and where the plaintiff brought seven actions against the same person for seven different publications of the same libel, the Court ordered proceedings to be stayed in all the actions except one, until that was tried (e).

(a) Sparrow's case, 5 Rep. 61; Com. Dig. Abatement (H. 24).

(b) See Miles v. The Inhabitants of Bristol, 3 B. & Adol. 945; where the plaintiff brought actions in the Court of Queen's Bench and the Exchequer, and he was compelled to elect in which he would proceed. But if judgment has been recovered in the one action, the defendant must plead it, and the Court will not interfere summarily. Ross v. Jacques, 8 M. & W. 135; 10 L. J. (N. S.), Exch. 306.

(e) Cecil v. Briggs, 2 Term Rep. 639. This case may be considered as n effect overruling Smith v. Crabb, 2 Strange, 1149, and Mynot v. Bridge, Id. 1178; see also Tidd's Practice, 8th edit. p. 664; Anon., 1

Chitty's Rep. 709, n. (a); Booth v.
Payne, 11 L. J. (N. S.), Exch. 256.

(d) Ibid. But the Court in one

case refused to consolidate two actions
brought on two bonds, although they
were precisely similar. Royal Ex-
change Company v.
1 Chitt.

Rep. 709, n. (a); but the circum-
stances are not fully stated. It seems
actions may be consolidated, although
the cause of action in one did not arise
until after the commencement of the
other. Oldershaw v. Tregnell, 3 C. &
P. 58. Counts in a declaration may be
consolidated in certain cases by con-
See Tidd's Practice, 9th edit.

sent.

p. 617.

(e) Jones v. Pritchard, 6 D. & L. 529.

The above rule applies to the case where the actions are against the same defendant. But where several defendants are separately sued in respect of the same subject-matter, the Court will, with the consent of the defendants, consolidate the actions in order to prevent such a vexatious proceeding. The principle applies not only where there are several parties jointly and severally liable on the same instrument, as in the case of a joint and several bond (a), and separate actions brought against them, but also to the case of separate instruments and a separate liability in respect thereof, but where no difference exists as to such liability (b). In actions on policies of insurance, where the underwriters are separately liable, this course is adopted, not on the ground that the actions were improperly brought in the first instance, but in order to save useless expense to the partics (c).

Where five separate actions were brought on five distinct guarantees of 507. each, given by five several parties for the payment of 250l., the proceedings in four of the actions were ordered to be stayed, the defendants consenting to be bound by the verdict in one; and the Court, in confirming the order, observed that the fact of the guarantees being written upon separate pieces of paper made no substantial difference between that case and the ordinary case of actions on the same policy of assurance, and that the only object in resisting the application must be to increase the costs (d). The consent of the defendants is necessary, because they might have different defences to set up.

It has also been the practice hitherto to consolidate actions of ejectment depending on the same title (e).

"Where money is paid into Court in several actions which are consolidated, and the plaintiff, without taxing costs, pro

(a) Anderson v. Towgood, 1 Q. B. Rep. 245.

(b) Per Erskine, J., Sharp v. Lethbridge, 4 M. & G. 40.

(c) Ibid.; and see Hollingsworth v. Brodrick, 4 A. & E. 646 (where the form of the rule is given at length),

and Park on Insurance, vol. i. pp. xliv., xlv.; Tidd's Practice, 9th edit. pp. 614, 615.

(d) Sharp v. Lethbridge, 4 M. & G. 37; 4 Scott, N. R. 722.

(e) See 4 M. & G. 41, n. (a).

ceeds to trial on one and fails, he shall be entitled to costs on the others up to the time of paying money into Court" (a).

Where separate actions are brought against several persons for the same debt, who are jointly liable if at all, and the defendant in one action pays the debt and costs in that action, the Court will stay the proceedings in the other actions without costs (b). And the same rule applies although the plaintiff has obtained judgment against the party sought to be relieved (c); for a plaintiff, who to multiply his chances of success, brings several actions for a joint debt against the cocontractors, has no reason to complain if his success in obtaining payment of the debt and costs in one deprives him of the right to recover costs in the other actions (d).

And where a plaintiff brought separate actions against two joint contractors, one of whom paid 3007. into Court, and the plaintiff, without replying in that action, gave notice of trial in the other, the Court allowed the defendant, in this latter action, on payment of costs, to insert on the record a plea of payment into Court of 300l., without actually paying in the same (e).

But unless the debt and the costs of one action have been paid, or offered to be paid, by one of the defendants, or all the defendants agree to be bound by the verdict against one, the Court will not interfere, either by staying the proceedings or consolidating the actions, although it be alleged that all the

(a) Reg. Gen., Hil. T. 1853, r. 13. (b) Carne v. Legh, 6 B. & C. 124; 9 D. & R. 126; Newton v. Blunt, 3 C. B. Rep. 675; 16 L. J. (N. S.), C. P. 121. The rule, in the first-mentioned case, also compelled the plaintiff to pay the costs of the application to stay the proceedings; and in the latter, the costs of the rule obtained by him to set aside a Judge's order staying the proceedings. It was said by the Court, in Newton v. Blunt, that it can be no advantage to a plaintiff to permit him to proceed in an action under such circumstances; for, the debt being satis

fied, the defendant might have pleaded
the fact puis darrein continuance, and
as the plaintiff could not recover any
damages, he could not be entitled to
any costs. But the plaintiff would
now, on confessing the plea puis dar-
rein continuance, be entitled to the
costs up
to the time of pleading it. See
ante, p. 275.

(c) Bailey v. Haines, 15 Q. B. Rep.
533; 19 L. J. (N. S.), Q. B. 402.
(d) Lord Campbell, C. J., in Bailey
v. Haines, supra.

(e) Rendel v. Malleson, 16 M. & W. 828.

defendants are sued in respect of a joint liability or contract (a). Thus, where the plaintiff's brought eleven actions against as many directors of a railway company for the recovery of the same demand, the Court refused to stay the proceedings in all the actions but one (b). The Court there observed, that the mere circumstance of the defendants being placed in a situation of hardship is no ground for depriving the plaintiffs of any rights which ordinarily belong to suitors, unless the Court can see that they have been guilty of improper and oppressive conduct, or that some equivalent can be given to the plaintiffs for the measure of relief afforded to the defendants. In that case, the defendants urged that they could not plead in abatement the nonjoinder of co-contractors, owing to the great number of persons whose names appeared as being connected with the proposed railway, but that very fact showed that the plaintiffs could not safely have sued any given number of the directors jointly. There had not therefore been any abuse of the process of the Court, as the plaintiffs had no other mode of enforcing their remedy.

The fact of the contract being joint or several, however, does not seem to form any true ground of distinction with regard to the equitable interference of the Court; for even in a case of several liability, where two or more actions have been brought to recover the same demand, and the debt and costs in one having been paid and received, the plaintiff had no equitable right to proceed, having no damages to recover (c).

No doubt there is a distinction in law between the case of joint and of several contractors, for payment by one of several co-contractors is in law a payment by each, and may be so pleaded (d); and it seems that the Court would not interfere

(a) Pechell v. Layton, 2 T. R. 512. (b) Giles v. Tooth, 3 C. B. Rep. 665; 16 L. J. (N. S.), C. P. 3; Newton v. Belcher, 16 L. J. (N. S.), Q. B.

38.

(c) See, per Maule, J., Newton v. Blunt, 3 C. B. Rep. 682, 683.

(d) Beaumont v. Greathead, 2 C. B. Rep. 494; and a judgment without satisfaction, against one of two joint debtors, is a bar to an action against the other. King v. Hoare, 3 M. & W. 494; and see Henry v. Goldney, 15 M. & W. 494.

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