&.DAMS

·il.

HOWARD.

847 and another.

ADAMS

and another v.

HOWARD

(Circuit Oourt, 8. D. New York. October 24, 1881.)
1.

PLEADING-ANSWER-DEMURRER.

By putting in an answer to the whole bill, a rer which is also to the whole bill.

overrules his demur-

F. H. Betts, for plaintiffs.

J. A. Whitney, for defendants.

BLATCHfORD, C. J. The defendant Morse bas demurred to the whole bill and has put in an answer to the whole bill. The suit is one for the infringement of a patent. The grounds of demurrer set forth in the demurrer are all of them also set forth in the answer. They relate solely to .the title set forth in the bill to the patent, and to the allegations in the bill respecting infringement. A replication to the answer has been filed. The plaintiffs now move for an order, either that the defendant elect between his demurrer and his answer, or that the demurrer be set down for argument. By rule 32 in equity, a defendant may demur to the whole bill, and may demur to .a. part of the bill and answer as to the residue. But there is nothing that allows him to demur to the whole bill and at the same time to answer to the whole bill, especially where the answer sets up everything that is in the demurrer. Putting in such an answer is a waiver of such a demurrer. The defendant must elect between his demurrer and his answer; and, to guard against misunderstanding, if he should elect his demurrer, and it should be overruled on argument, he would be· held, probably, to have waived what, ordinarily and otherwise, would be, under rule 34, his right to answer. The defendant moves to dismiss the bill. The ground of the motion is not specified in the notice of motion. From the affidavit made in support of the motion, one ground would seem to be that the plaintiffs did not, under rule 38, set down the demurrer for argument within the time required, and that they did not take any testimony within three months after the replication was filed. I think the plaintiffs sufficiently excuse the omissions. The demurrer ought to be disposed of before any testimony is taken. The motion is denied.

*'l48

FEDERAL BEPORTER.

YOUNG

v.

GRAND '!'RUNK

By.

OF CANADA.

(Circuit (Jourt, E. D. Wisconsin.

1.

PRACTICE-CONSOLIDATION-DISCONTINUANCE.

1881.)

• The consolidation of several actions into one will not defeat the rilrht to dismiss as to one or more of the original causes of a<.:L.OilS.
  

Van Dyke t1; Van Dyke, for plaintiff. G. W. Hazelton, for defendant. DYER, D. J. Three suits were commenced in this court by the above-named plaintiff against the defendant company to recover damages for alleged delay in the transportation of grain which was shipped by thE! plaintiff over the defendant's road and consigned to Liverpool. The complaints in the several actions were substantially alike, except that the contracts of shipment were alleged to have been made at different times, thus showing that the several shipments were distinct and iudependent transactions, each constituting a sepa· rate cause of action. The defences to the actions disclosed by the answers of the defendant were similar. A rnotion was made by coun· sel for defendant to consolidate the cases; and as they are of like nature, and as it appeared reasonable so to do, the court ordered the actions consolidated, and such an order was entered. Rev. St. § 921. The plaintiff now rrloves for leave to discontinue two of the cases. This motion is opposed, and is now to be determined. It is contended-First, that as the three' suits have been, by the order of the court, merged into on'e, there are no longer two separate. cases that can be discontinued. Strictly speaking, this is true; but although the present· motion, in form, is one to discontinue two of the actions as originally entitled, I think it may properly be treated as a motion to discontinue as to two of the causes of action in the present consolidated action. And so the question really is, has the plaintiff a right to dismiss his suit as to two of the causes of action upon which he originally commenced independent actions? There can be no doubt that the present consolidated action consists of independent parts or causes of action. Each shipment of grain and each contract upon which the shipment is alleged to have been made constitutes a distinct ground of action. They are not simply different transactions growing out of one contract, but they are independent rights of action of like nature, but having no special relation to each other, and brought together uy order of the court for convenience at the trial. At the common law a plaintiff had the ahsolute right to discontinue his action before or after issue joined, and with·