Page:Federal Reporter, 1st Series, Volume 9.djvu/363

 'ae8 FEDERAL REPORTER. �YouNG V. Grand Trunk Ei. of Canada. �{Circuit Court, E. D. Wiaconnn. 1881.) �1. Practicoi — Consolidation — Discontinuanch. �- The consolidation of several actions into one wil' not defeat the riffht to dis- miss as to one or more of the original causes of acuons. �Van Dyke e Van Dyke, for plaintiff. �G. W. Hazelton, for defendant. �Dybr, D. J. Three suits were comnieneed in this court by the above-named plaintiff against the defendant company to recoyer 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 contracta of shipment were alleged to have been made at different times, thus showing that the several shipments were distinct and independant transactions, each constituting a sepa- rate cause of action. The defences to the actions diselosed by the answers of the defendant were similar. A motion 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. Eev. St. § 921. The plaintiff now moves 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 one, 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 eotnmenced independent actions ? There can be no doubt that the present Consolidated action consista 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 inde- pendent rights of action of like nature, but having no special relation to each other, and brought together by order of the court for conven- ienee at the trial. At the common law a plaintiff had the a!)solute right to discontinue his action before or after issue joined, and with- ��� �