Page:Federal Reporter, 1st Series, Volume 10.djvu/467

KEEP V, INDIANAPOLIS & ST. LOUIS B. 00. 455 �mateiial evidence offered by the defendant. (9) That the court erred in con-^ soliclatiug the above-named case o£ Henry V. Keep v. Union Kailway & Transit Co. of St. Louis with the case of Keep v. Indianapolis & St. Louis JR, Co., and in trying the same together. (10) ihat the verdict after consolida- lion should have been a joint verdict, and the judgment joint. (11) That the damages are excessive. �The motion of the Indianapolis & St. Louis Eailroad Company sets forth substantially the same assignments of error as that of the Union Eailway & Transit Company, with the exception of the third, fourth, ninth, and tenth assignments, which are omitted. �For a report of the trial of said cases see 9 Ped. Rep. 625 et seq. �L. B. Valliaiit and Joseph Dickson, for plaintiff. �John T. Dye, for Indianapolls & St. Louis Eailroad Company. �S. M. Breckenridge, for Union Eailway & Transit Company. �Treat, D. J. At the calling of these cases they were consolidated for purposes of trial — that is, the court ordered that they should be tried at the same time, before the same jury; yet each case to be treated as distinct, and requiring a separate verdict. Such h as been the uniform practice of this court for a quarter of a oentury, com- mencing with the administration of Justice Catron, of the supreme court, (Wells and Treat, assooiated,) to the present time. Such prac- tice was based on the act of July 22, 1813, (now section 921, Eev. St.,) which is as follows: �" When causes of a like nature or relative to the same question are pend- ing before a court of the United States or of any .territory the court may malie such orders and rules concerning proceedings therein as may be eonformable to the usages of courts for avoiding unnecessary costs or delay in the admin- istration of justice, and may consolidate said causes when it appears reasona- ble to do so." �It often happened, under the land litigations prevalent here from 25 to 30 years ago, that from 50 to 100 cases in ejectment would be brought by one plaintiff against different tenants in possession, the main subject in controversy being the plaintiff's title. Instead of trying each of said cases separately, involving one or two weeks' time each, and resting on the same evidence as to title, the court could order all to be tried at once, so that the court could determine whether the plaintiff had a right of recovery as against the defend ■ ants who claimed under a common title adversely. �If the plaintiff recovered, a separate verdict was rendered against each of the defendants as to damages, and the particular premises occupied by him; and if the plaintiff failed, a separate verdict was ��� �