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Argument for Plaintiff in Error.

until I strike something better. There is so many folks in this country that have got the Leadville fever, and if I could not of got the situation that I have now I would have went there myself ; but as it is at present I get to see the best portion of Kansas, Indian Territory, Colorado, and Mexico. The route that we intend to take would cost a man to travel from $150 to $200, but it will not cost me a cent; besides, I get good wages. I will drop you a letter occasionally until I get settled down; then I want you to answer it.”

Rulings upon other questions of evidence, excepted to at the trial, are not reported, because not passed upon by this court.

The court, after recapitulating some of the testimony introduced, instructed the jury as follows: "You have perceived from the very beginning of the trial that the conclusion to be reached must practically turn upon one question of fact, and all the large volume of evidence, with its graphic and varied details, has no actual significance, save as the facts established thereby may throw light upon and aid you in answering the question, Whose body was it that on the evening of March 18, 1879, lay dead by the camp-fire on Crooked Creek? The decision of that question decides the verdict you should render.”

The jury, being instructed by the court to return a separate verdict in each case, returned verdicts for the plaintiff against the three defendants respectively for the amounts of their policies, and interest, upon which separate judgments were rendered. The defendants sued out four writs of error, one jointly in the three cases as consolidated, and one in each case separately.

Mr. Julien T. Davies, (Mr. J. W. Green and Mr. E. L. Short were on his brief,) for the New York Company, contended as to the consolidation of the causes :

The right of the Circuit Court to try separate causes of a like nature or relative to the same question at the same time and before the same jury, and to consolidate causes, rests upon section 921 of the Revised Statutes of the United States.

VOL. CXLV-19

Argument for Defendant in Error.

Under this statute causes could be tried together, but not necessarily thereby consolidated. The ideas are distinct between trying causes together or consolidating them for trial by order, and directing them to be tried as one cause, and therefore virtually consolidating them.

Under this section, speaking generally, two classes of cases in which in the Circuit Courts of the United States a trial of different causes of action has been had properly at the same time and before the same jury, when such causes were of a like nature or relative to the same question : (1) Where one case is ordered to be tried and the other cases are ordered to abide the event of the one ordered for trial; (2) Where there is an absolute consolidation of different causes of action against the same defendants.

The class of cases, to which those before the court belong, constitutes a third class, in which a consolidation for trial of different causes of action against different defendants for the purposes of saving time has been ordered.

We claimed that the court had no power to make the order here complained of, because: (a) The causes were not of a like nature or relative to the same question ; (b) An order for consolidation for purposes of trial where there are different defendants is not conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and is not reasonable. Tidd's Pr. (3d Am. ed.) 614; Worley v. Glentworth, 5 Halsted, (10 N. J. Law,) 241 ; Howard v. Chamberlin, 64 Georgia, 654, 696.

Mr. Samuel A. Riggs and Mr. L. B. Wheat (with whom were Mr. John Ilutchings and Mr. R. J. Borghalthaus on the brief) for defendant in error.

When the actions were so consolidated that the matter of impanelling a jury was to be proceeded with, $ 819, Rev. Stat. was applicable, and limited the parties to three challenges. 1 Thompson on Trials, $ 46 and n. 1.

If each plaintiff in error was entitled to three peremptory challenges, then of course the defendant in error would have

Argument for Defendant in Error.

been entitled to the same number; so that twelve jurors, equivalent to a full panel, could have been peremptorily challenged without the consent of either one of the defendants ; or if each plaintiff in error was entitled to three peremptory challenges and defendant in error to only three, then in addition to this favor being three to one against defendant in error each defendant might have been required to see half of a full panel peremptorily challenged off in addition to the six challenges allowed by that section.

As to the 86th assignment of error relating to testimony of Miss Alvina Kasten it will be noticed that the envelope was introduced in evidence and that witness showed when and from whence she received the letter, but the contents of the letter were not permitted to be given to the jury. Considering that, together with the 74th and 85th assignments of error, we submit that the contents of the three letters therein referred to were incompetent and hearsay. Neither was written by Walters at a time when he expected to die; the statements therein were not made under the obligation of an oath, nor under circumstances in law equivalent thereto; nor under any such circumstances as would render or make them res gestæ as to any act or fact competent to be proven. Whether he did or went according to any statement in either of those letters, or whether he had anything to do with any other person, or whether he made or had any transaction with any other

person, or knew or had seen any other person named in either of said letters, were questions of fact to be proved as any other fact; and his statement thereof or of any intention in any of said letters expressed, was not competent evidence against any other person whomsoever. Such statements were not res gestæ as to any fact, material or competent in this case, but only of the fact of writing the letters.

The contents of those letters were no more competent than a letter written by any other person to any other person would have been if such last mentioned letters had contained similar statements therein, or any other statement. Insurance Co. v. Guardiola, 129 U. S. 642; State v. Medlicott, 9 Kansas, 257; Simpson v. Smith, 27 Kansas, 565; State v. Smith, 35 Kansas,

Opinion of the Court.

618; Dwyer v. Dunbur, 5 Wall. 318; People v. Fong Ah Sing, 64 California, 253; State v. Draper, 65 Missouri, 335, 340; Barfield v. Britt, 2 Jones (Law) N. C. 41; S. C. 62 Am. Dec. 190; Leiber v. Commonwealth, 9 Bush, 11; Lund v. Tyngsborough, 9 Cush. 36; S. C. 59 Am. Dec. 159; Commonwealth v. Densmore, 12 Allen, 535; Rex v. Mead, 2 B. & C. 603.

Mr. Edward S. Isham (with whom were Mr. James IT. Green and Mr. William G. Beale on the brief) for the Connecticut Mutual Life Insurance Company, plaintiff in error.

Mr. Justice Gray, after stating the case as above, delivered the opinion of the court.

The order of the Circuit Court that the three actions be consolidated for trial, because they appeared to the court to be of like nature and relative to the same question, because it would avoid unnecessary cost and delay, and because it was reasonable to do so, was within the discretionary power of the court, under section 921 of the Revised Statutes, which provides, in substantial accordance with the act of July 22, 1813, c. 14, $ 3, (3 Stat. 21,) that “when causes of a like nature or relative to the same question are pending before a court of the United States, or of any Territory, the court may make such orders and rules concerning proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so."?

The consolidation rule, introduced in England by Lord Mansfield, to avoid the expense and delay attending the trial of a multiplicity of actions upon the same question arising under different policies of insurance, enabled the several insurers to have proceedings stayed in all actions except one, upon undertaking to be bound by the verdict in that one, to admit all facts not meant to be seriously disputed, and not to file a bill in equity or bring a writ of error; and was considered as a favor to the defendants; and insurers under different policies could not obtain such a rule without the plaintiff's consent.

Opinion of the Court.

1 Tidd's Practice (9th ed.) 614, 615; McGregor v. Horsfall, 3 M. & W. 320. The English practice appears to have been followed in early times in New York. Camman v. New York Ins. Co., 1 Caines, 114; S. C. Coleman & Caines, 188; Thompson v. Shepherd, 9 Johns. 262. The later cases in New York, cited at the bar, were governed by statute.

Brewster v. Stewart, 3 Wend. 441; Mayor v. Mayor, 64 How. Pract. 230.

Where the English consolidátion rule has not been adopted, the American courts, state and federal, have exercised the authority of ordering several actions by one plaintiff against different defendants to be tried together, whenever the defence is the same, and unnecessary delay and expense will be thereby avoided. Den v. Kimble, 4 Halst. (9 N. J. Law) 335; Worley, v. Glentworth, 5 Halst. (10 N.J. Law) 241; Witherlee v. Ocean Ins. Co., 24 Pick. 67; Wiede v. Insurance Cos., 3 Chicago Legal News, 353; Andrews v. Spear, 4 Dillon, 470; k'eep v. Indianapolis & St. Louis Railroad, 3 McCrary, 302; 1 Thompson on Trials, $ 210. The learning and research of counsel have produced no instance in this country, in which such an order, made in the exercise of the discretionary power of the court, unrestricted by statute, has been set aside on bill of exceptions or writ of error.

But although the defendants might lawfully be compelled, at the discretion of the court, to try the cases together, the causes of action remained distinct, and required separate verdicts and judgments; and no defendant could be deprived, without its consent, of any right material to its defence, whether by way of challenge of jurors, or of objection to evidence, to which it would have been entitled if the cases had been tried separately. Section 819 of the Revised Statutes provides that in all civil cases "each party shall be entitled to three peremptory challenges; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section." Under this provision, defendants sued together upon one cause of action would be entitled to only three peremptory challenges in all. But defendants in different actions cannot be deprived of their several challenges,

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