where the goods or chattels were taken, or in the town or county where the owner of such goods or chattels may reside. If the goods and chattels be not sufficient to satisfy the warrant, the same may be levied upon the person of such officer, who may be committed to prison, there to remain until discharged by due course of law." 17 "If the delinquent officer absconds, or if goods and chattels belonging to him cannot be found sufficient to satisfy the warrant, the marshal or his deputy shall proceed, notwithstanding the commitment of the delinquent officer, to levy and collect the sum which remains due by such delinquent, by the distress and sale of the goods and chattels of his sureties; having given ten days' previous notice of such intended sale, by affixing an advertisement of the articles to be sold at two or more public places in the town or county where the goods or chattels were taken, or in the town or county where the owner resides." 18 "For want of goods and chattels of a delinquent officer, or his sureties, sufficient to satisfy any warrant of distress issued pursuant to the foregoing provisions, the lands, tenements, and hereditaments of such officer and his sureties, or so much thereof as may be necessary for that purpose, after being advertised for at least three weeks in not less than three public places in the county or district where such real estate is situated, before the time of sale, shall be sold by the marshal of such district or his deputy." 19 "For all lands, tenements, or hereditaments sold in pursuance of the preceding section, the conveyance of the marshal or his deputy, executed in due form of law, shall give a valid title against all persons claiming under such delinquent officer or his sureties." 20 "The amount due by any delinquent officer is declared to be a lien upon the lands, tenements, and hereditaments of such officer and his sureties, from the date of a levy in pursuance of the warrant of distress issued against him or them, and a record thereof made in the office of the clerk of the district court of the proper district, until the same is discharged according to law." 21 These statutes are constitutional.22

"No enlisted man shall, during his term of service, be arrested

17 U. S. R. S., § 3627. 18 U. S. R. S., § 3628.

19 U. S. R. S., § 3630. 20 U. S. R. S., § 3631.

21 U. S. R. S., § 3629.

22 U. S. v. Dillin, C. C. A., 16 Fed. 813.

on mesne process, or taken or charged in executions for any debt, unless it was contracted before his enlistment, and amounted to twenty dollars when first contracted." 23 Marines shall be exempt, while enlisted in said service, from all personal arrest for debt or contract.'' 24

The prohibitions of the arrest of foreign ministers, and their domestic servants, are quoted in the section on attachments.25

§ 472. Consolidation at law and in equity. The Revised Statutes provide 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.1 This statute has been held to apply to suits in equity as well as at law.2 The court will usually order a consolidation of several suits brought for the administration of the same property, or of parts of the same system, which are operated as a unit and devoted to a public service. Where a railway company filed a bill in a State court asking that its property be placed in the hands of a receiver, and the trustee of a mortgage upon its property after removal filed a cross-bill in the Federal court to

23 U. S. R. S., § 1237. 24 U. S. R. S., § 1610. 25 U. S. R. S., § 369.

$ 472. 1 U. S. R. S., § 921; U. S. v. U. P. R. Co., 98 U. S. 569, 25 L. ed. 143; Andrews v. Spear, 4 Dill, 472; Bank of Alexandria v. Young, 1 Cranch, C. C. 458; Wolverton v. Lacey, 18 Law R. (N. S.), 672; Weide v. Ins. Co. of N. A., 3 Chic. L. N. 353; Wabash, St. L. & P. Ry. Co. v. Central Tr. Co., 23 Fed. 513; Ferrett v. Atwill, 4 N. Y. Leg. Obs. 215; Holmes v. Sheridan, 1 Dill. 351; Young v. Grand Trunk Ry. Co., 9 Fed. 348; Keep v. Ind. & St. L. R. Co., 10 Fed. 454; Davis v. St. Louis & S. F. Ry. Co., 25 Fed.

2 Andrews v. Spear, 4 Dill. 472; Wabash, St. L. & P. Ry. Co. v. Central Tr. Co., 23 Fed. 513.

3 Wabash, St. L. & P. Ry. Co. v. Central Tr. Co., 23 Fed. 513; Lant v. Kinne, C. C. A., 75 Fed. 636; Toledo, St. L. & K. C. R. Co. v. Continental Tr. Co., C. C. A., 95 Fed. 497; Cole v. Phila. & E. Ry. Co., 140 Fed. 944, 947. See Central Tr. Co. v. McGeorge, 151 U. S. 129, 38 L. ed. 98.

4 Morton Tr. Co. v. Metropolitan St. Ry. Co., 170 Fed. 336; Gay v. Hudson River El. Power Co., 190 Fed. 773.

foreclose the mortgage, and then began a foreclosure suit in the State court, which was afterwards removed; the Federal court consolidated all three proceedings. A creditor's bill in which

a receiver has been appointed will ordinarily be consolidated with an ancillary foreclosure suit, whether the foreclosure affects the whole or a part of the system 7 and even when some of the parties thereto are not joined in the former suit. The court may refuse to consolidate two foreclosure suits, when the result would be to delay that which was first brought.

12

A bill filed in aid of an attachment may be consolidated with a bill to restrain the enforcement of the attachment; and the latter, if subsequently brought, will then be considered as a cross-bill to the former.10 A consolidation has been ordered of separate suits in equity to enjoin the infringement of a mechanical and a design patent upon the same article.11 This has been done in actions of ejectment by the same plaintiff claiming under the same title against several defendants; in actions by different plaintiffs against the same defendant, to recover damages for personal injuries,18 or for the deaths of persons killed, at the same time and in the same manner; 14 in two suits against separate defendants for the same injury, although one was an action in tort and the other on contract; 'when several actions were brought between the same parties upon different notes with the same makers, payees, and indorsers; where several actions at common law were based

16

5 Wabash, St. L. & P. Ry. Co. v. Central Tr. Co., 23 Fed. 513. Supra, § 302b.

6 Toledo, St. L. & K. C. R. Co. v. Continental Tr. Co., C. C. A., 95 Fed. 497; Cole v. Phila. & E. Ry. Co., 140 Fed. 944, 947. See Central Tr. Co. v. McGeorge, 151 U. S. 129, 38 L. ed. 98.

7 Bankers Trust Co. v. Missouri K. & T. Ry. Co., C. C. A., 251 Fed. 789, 793.

8 Ibid.

9 Mercantile Tr. Co. v. Mo., K. &

T. Ry. Co., 41 Fed. 8.

10 Lant v. Kinne, C. C. A., 75 Fed. 636.

15

11 Crystal Percolator Co., Inc. v. Landers, Frary & Clark, 258 Fed. 28.

12 Keep v. Indianapolis & St. Louis R. Co., 10 Fed. 454.

13 Denver City Tramway Co. v. Norton, C. C. A., 141 Fed. 599; Am. Window Glass Co. v. Noe, C. C. A., 158 Fed. 777.

14 Diggs v. Louisville & N. R. Co., C. C. A., 156 Fed. 564.

15 Ibid.

16 Davis v. St. Louis & S. F. Ry. Co., 25 Fed. 786.

upon insurance policies on the same life,17 or the same property, ,18 and the defenses were the same; where several actions for different publications of the same libel were brought by the same plaintiff against the different publishers of several newspapers,19 and where several actions had been brought for penalties because of the violation of the same statute.20 A consolidation was allowed when cross-actions had been brought between the same parties for breach of the same contract.21 A consolidation was refused when several actions were pending between the same parties upon assigned claims for overcharges.22 Where actions were consolidated, which were brought against several insurance companies upon different policies, containing a clause for contribution, the court ordered: that one of the causes be transferred to the equity docket, and the other defendants be made parties thereto; that the pleadings in that case be reformed according to the equity practice; and that the proceedings in the other causes be stayed.28

The court may order several cases involving substantially the same evidence to be tried together and direct the jury to bring in separate verdicts.24

The consolidation of two suits will not prevent the subsequent remand of one of them which has been improperly removed; 25 nor the right to dismiss either of them.26 It has been said that a consolidation is primarily but an expedient adopted for saving costs and delay. Each record is that of an independent suit, except in so far as the evidence in one is, by order of the court, treated as evidence in both. It has been held that the consolidation does "not change the rules of equity pleading, nor the rights of the parties, as those rights must still turn on the pleadings, proofs, and proceedings in

17 Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 36 L. ed. 707.

18 Falls of Neuse Mfg. Co. v. Ga. Home Insurance Co., 26 Fed. 1.

19 Butler v. Courier-Citizen Co., 127 Fed. 1015.

20 B. & O. Southwestern R. R. Co. v. U. S., 220 U. S. 94, 106, 55 L. ed. 384, 388.

21 Am. Tr. & Sav. Bank v. Zeigler Coal Co., C. C. A., 165 Fed. 34.

22 Davis v. St. Louis & S. F. Ry. Co., 25 Fed. 786.

23 Falls of Neuse Mfg. Co. v. Ga. Home Insurance Co., 26 Fed. 1. 24 Keep. v. I. & St. L. R. Co., 10 Fed. 454.

25 Colburn v. Hill, C. C. A., 101 Fed. 500.

26 Young v. Grand Trunk Ry. Co., 9 Fed. 348.

27

29

their respective suits. The parties in one suit do not thereby become parties in the other, and a decree in one is not a decree in the other unless so directed. It operates as a mere carrying on together of two separate suits supposed to involve identical issues, and is intended to expedite the hearing and diminish the expense. It has been held: that, where actions have been consolidated, both the plaintiffs 28 and the defendants are entitled to the same number of challenges to jurors as they would be if the cases had been tried separately, but the rights of the plaintiffs in this respect are doubtful.30 The court of review will not reverse because of an improper consolidation unless it appears that the party seeking its relief was prejudiced thereby,31 and so contended below. 32 He cannot complain that he thus lost his right to three individual challenges to jurors when he did not seek to exercise more than were allowed.38 When the court of review doubts the propriety of the consolidation, it need not decide the point if it reverses upon other grounds.34 Where the court has, without objection, treated two causes as consolidated, the omission of a for"mal order of consolidation is no ground for error.35

§ 473. Right to trial by jury. The Federal Constitution ordains: "The Trial of all Crimes, except in Cases of impeachment, shall be by Jury, and such Trial shall be held in the State where the said Crime shall have been committed, but

27 Toledo, St. L. & K. C. R. Co. v. Continental Tr. Co., C. C. A., 95 Fed. 497, 506, per Lawton, J., citing Brevard v, Summar, 2 Heisk. (Tenn.) 97, 105; Lofland v. Coward, 12 Heisk. (Tenn.) 546. But see Ross-Meehan B. S. F. Co. v. So. M. Iron Co., 72 Fed. 957. In Morton Tr. Co. v. Metropolitan St. Ry. Co., 170 Fed. 336, 337; per Lacombe, J.: "In a situation so complicated as this one, with so many conflicting interests and different suits, the court is not inclined to be over technical as to pleading and practice. If some way can be found in which the equities of all may be substantially secured, it will be

adopted, although some novel practice may be thereby pursued."'

28 Butler v. Evening Post Pub. Co., C. C. A., 148 Fed. 821.

29 Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, 36 L. ed. 707.

30 See Connecticut Mutual Life Ins. Co. v. Hillmon, 188 U. S. 208, 47 L. ed. 446.

31 United Mine Workers v. Coronado Coal Co., 114 Fed. 829. 32 Ibid.

33 Ibid..

34 Aetna Life Ins. Co. v. Moore, 231 U. S. 543.

35 Gila Reservoir & Irr. Co. Gila Water Co., 202 U. S. 270 L. ed. 1023.