Mitchell v. Smith

Eccleston, J., delivered the opinion of this court. Where an assault has been committed by two persons, the party injured may sue them jointly or separately, at his pleasure. If jointly and one is taken but the other not, and on the renewal of the writ he is brought into court, we see no good reason, why, at the instance of the plaintiff, if the cases ⁴⁰⁶ stand separately on the docket, the court should not order them to be tried before the same jury, or consolidated. A denial of such authority in the court would furnish the defendants a very easy method of effectually putting an end to the plaintiff’s right to a joint suit.

All that is necessary to effect this is, for one of the defendants to elude the sheriff. In some instances where separate suits have been instituted, which'depended upon the same facts and principles, and were to be supported by the same evidence, courts have ordered them to be put to the same jury, at the same time. Witherlee vs. Ocean Ins. Co., 24 Pick., 68 .

But, whether, in the present case, the court would have been right in ordering a consolidation, if the plaintiff had elected to issue separate writs, in the first instance, is not a question presented by the record, and therefore need not be decided. The acts of 1825 ch. 167, and 1837 ch. 211, referred to by the appellants, relate to suits ex contractu, and making no provision as to actions ex delicto, which are still to be governed by the principles of the common law. An order to consolidate, in such a case as the one before us, will not, any more than where the suit was joint from the commencement to the time of trial, deny to a defendant his privilege of calling upon the court to put his case separately to the jury, where in the exercise of a sound discretion, the court are satisfied that there is no evidence, or very little evidence, to charge him. At the time of ordering this consolidation, there was nothing to show an absence of proof in regard to either defendant.

The order of the court allowing the plaintiff to withdraw his separate nar, against George A. Mitchell, has been objected to, but we see no error in this ruling of the court. The discretion in regard to the amendment of proceedings before verdict, given by the acts of 1785, ch. 80, sec. 4, and 1809 ch. 153, sec. 1, was not exceeded in the present instance. It is said the verdict is so uncertain and defective that a valid judgment could not be rendered upon it, and therefore, the court were wrong in not sustaining the motion in arrest of judgment. ⁴⁰⁷ The verdict as staled in the record is, the jury “say as to the first issue within joined, that the said defendants are guilty of the premises within charged upon him, in manner and form as the said plaintiff hath within alleged, and as to the other issue within joined, the said jurors upon their oath aforesaid, further say, that the said defendants of their own wrong, and without any such cause as the said defendants within by pleading hath alleged, made an assault upon the said plaintiff, and then and there did beat, wound and evilly treat the said plaintiff, in manner and form as the said plaintiff hath within, in his replication in that behalf alleged,” &c. Technically speaking there were four issues.

Each defendant put in a separate plea of non cul, and issue was taken on each. A separate special plea was filed by each defendant, to which the plaintiff replied, separately, and issues were joined. As the verdict, in the beginning, speaks of the first issue, and then only of the other issue, it certainly is not free from objection for want of perspicuity; but this may be true and yet it may be substantially correct. In Stearns vs. Barrett, 1 Mason’s Rep., 169 to 173, where a defective verdict was under consideration by Mr. Justice Story, it is manifestly his opinion, that a defect which will destroy the validity of a verdict, must be a substantial one.

On page 173 he says, “that whenever a verdict is not expressed substantially in the terms of the issue, the