*37] *SHARP v. LETHBRIDGE. Same v. N. FORD. Same v. BOON. Where five separate actions were brought on five distinct guarantees of 501. each, given by five several parties for the payment of 250, the proceedings, in four of the actions, were ordered, by a judge at chambers, to be stayed, the defendants consenting to be bound by the verdict in one, provided that such verdict were to the satisfaction of the judge who tried the cause, the plaintiff to be at liberty to apply to open the order after plea, on the ground that the issue would not decide the merits in the other actions : Held, that this was a proper order. In the above actions MAULE, J., at chambers had made the following order, at the instance of the defendants: - "Upon hearing the attorneys, &c., I do order, that all further proceedings in the four last-mentioned actions be stayed until after the trial of the first-mentioned action; the defendants in such four last-mentioned actions hereby consenting to be bound and concluded by such verdict as shall be given in the first-mentioned action; provided the same shall be to the satisfaction of the judge before whom the same shall be tried. The plaintiff to be at liberty, when the defendant in the first-mentioned action has pleaded, to apply to open this order on the ground that the issue in the first-mentioned action will not decide the merits of the others." It appeared from the affidavits upon which the order was obtained, that the five actions were brought in respect of five separate guarantees for the amount of 50%. each, given by the defendants respectively to insure the payment of the sum of 2501. by one Mason to the National Provincial Bank of England (of which the plaintiff was a public registered officer:) that the guarantees were not dated or signed on the same day; and that Mason had become bankrupt, and owed the bank 5007. *Bompas, Serjt., on behalf of the plaintiff, applied to rescind the *38] learned judge's order, which, he contended, was of a perfectly novel kind. [Erskine, J. Is it not like the ordinary case of consolidating actions brought against different underwriters on a policy of insurance?] (a) There the different actions are brought upon the same instrument: here they are all upon different instruments. [ERSKINE, J. Is there no instance of the consolidation of actions brought upon different policies where the risk was the same?] (b) But in the present instance, the causes of action are as much separate as if they had arisen upon separate promissory notes.(c) (a) Vide post, p 39 (b). (b) The rule is stated in Archbold's Prac. (p. 830, 4th ed.) to apply to cases" where several actions are brought upon the same policy.” (c) See Mussenden v. O'Hura, Runnington, Serjt., Tidd's Pr. 614, 9th ed., where three actions having been necessarily brought by the same plaintiff against the same defendant, upon three notes of hand, which became due at three different times, the court of K. B. refused to consolidate them. But in Oldershaw v. Tregwell, 3 C. & P. 58, (37 E. C. L. R.,) where two actions had been brought on two bills of exchange, payable at different times, the action on the first bill having been brought before the second bill was due; Lord Tenterden, C. J., said, "These parties need not in this case have been at the expense of two trials. If an application had been made to a judge at chambers, an order might have been obtained to consolidate the actions." In Cunnach v. Gundry, 1 Chitt. R. 709, very shortly reported, as Cormack v. Gundry, 3 B. & Ald. 272, (5 E. C. L. R.,) the court of K. B. refused to consolidate into one count ninety-eight counts in a declaration, upon as many promissory notes of a country banker, for 17. each; but they made a rule (by consent) that all the counts should be struck out except one, and that the ninety-seven other notes might be given in evidence under the account stated. In Lane v. Smith, W. E. Taunton, Tid. Pr. 617, 9th ed., 3 Smith, 113, where the declaration contained 286 counts on similar notes, the court had refused to [*39 In the books of practice one instance is certainly mentioned where actions brought against different persons for the same assault were ordered to be consolidated; but that does not appear to have been done a second time.(a) In the present case, the fact of Mason having become bankrupt may give rise to great difficulties. TINDAL, C. J. If these guarantees were on one piece of paper, and the defendants were severally liable for 501. each, there could have been no doubt as to the application of the principle of the usual practice in actions on policies of insurance; in which, where several parties are liable on the same policy, it has been the established practice that a consolidation rule should be granted. (b) The courts, to avoid unnecessary expense both to the plaintiff and defendant in these cases, have been in the habit of staying the actions brought against the different underwriters till one of such actions is decided. And this is not only a most equitable rule, but one that is highly beneficial for the plaintiff; inasmuch as he has the option of selecting the most favourable case to try. * [*40 Then the question here is, whether there is any real and substantial difference, because the guarantees are written upon separate pieces of paper. In fact the same question and the same liability arise in each case. The different defendants might have opposed the present order, on the ground that they would possibly have different defences to set up; but it is not easy to see why the plaintiff should do so. COLTMAN, J. This is in fact an order to stay the proceedings in various actions that have been brought upon the same liability, the object being that all should abide the result of one, the plaintiff having the liberty reserved of selecting any one case. I cannot see why he should object to such an arrangement, as no particular inconvenience can result to him from its being carried into effect. It is objected that Mason has become a bankrupt; but the plaintiff may still prove his debt under the fiat, and receive his dividend. The only purpose for which he can object to the course proposed, must be to increase the costs. case. ERSKINE, J. There is no doubt as to the rule, that where there are several parties jointly and severally liable on the same instrument, and separate actions are brought against them, the court will consolidate the actions in order to prevent such a vexatious proceeding. And this is not the only It appears to me that the same principle applies where there are separate instruments, and a separate liability in respect thereof, but where no difference exists as to such liability. In actions on policies of insurance, where the underwriters are separately liable, the same course is adopted, strike out the counts on the notes. It appears from the reports of that case, that, besides the counts on the notes, the declaration contained counts for money lent and money had and received, but it does not appear whether there was also a count upon an account stated. (a) See Harper v. Woodhouse, Prac. Reg. C. P. 151, Anon. 1. Chitt. Rep. 709, a, where a rule was made to consolidate two actions of trespass for foxhunting over the plaintiff's premises, situate in the same parish, though committed at different times. In Jones v. Enderup, Prac. Reg. C. P. 150, however, where the declaration contained thirty counts for assaults, the court, upon an affidavit that the defendant had assaulted the plaintiff sixty several times, refused to strike out any of the counts. And in Bayley v. Raby, 1 Stra. 420, the court refused an application, that four several declarations in trespass against four different persons might Le put into one, upon an affidavit that the trespass, if any, was committed by all jointly; and observed, "We never went so far as the case of different persons, but only where the declarations are between the same parties. The plaintiff may have the benefit of the others' evidence in his action against either; but this uill be to deprive him of that." If the rule had been shaped as in the principal case, that objection, it seems, would not have been applicable. (b) As to the origin and establishment of this rule,-introduced by Lord Mansfield, C. J. – see Park on Insurance, Introd. vol. i. pp. xliv. xlv., Tidd Pr. 614, 615, 9th ed. not on the ground that the actions were improperly brought in the [*41 first instance, but in order to save useless expense to the parties. In these cases the defendants agree to be concluded by the decision in the action tried. The plaintiff always has it in his power to try whichever case he likes. The learned judge's order, indeed, directs that the other cases shall abide the event of the case of Sharp v. Lethbridge; but the plaintiff might have selected any of the other cases if a reason had been suggested for his so doing. It appears to me, therefore, that the only object in opposing this application must be to put costs in the pocket of the plaintiff's attorney. CRESSWELL, J., concurred. (a) In The Royal Exchange Company v Rule refused. (a) 1 Chitt. Rep, 709, n, this court refused to consolidate two actions brought on two bonds, although they were precisely similar to each other But in Kay v. Hill, 2 B. & A. 588, (22 E. C. L. R.,) the assignee of a bail bond. having brought actions against each of the bail, the court of King's Bench, upon payment of the costs of one action only, stayed the proceedings in all. In Cecil v. Brigges, 2 T. R. 639, two actions in assumpsit, between the same parties, were consolidated, where the causes of action arose in the same county, and the defendant had been held to bail in each. Consolidation was refused in two actions between the same parties to try a right of way in different parts of the same town; Mynol v. Bridge, 2 Stra. 1178. In ejectment, where ten separate declarations were delivered for ten separate houses upon the same title, the court refused an application to put them all into one issue. Smith v. Crabb, Ibid, 1149; but where different causes in ejectment depend on the same title, it is now the practice to consolidate. See 2 Sellon's Prac. 144; Doe d. Pulteney v. Cavan, Imp. K. B. 931; Grimstone v. Burgers, Barnes, 176. *42] *NORTON v. POWELL. A plea, that the contract declared upon,-being a contract which, under the statute of frauds, required the defendant's signature, was entered into with the plaintiff on a Sunday, in the way of the plaintiff's ordinary business, is not supported by evidence that the contract was signed and delivered by the defendant to C. on a Sunday, and delivered by C. to the plaintiff on a subsequent day.. A guarantee given by B., a tradesman, to A., another tradesman, for the faithful services of C., a traveller, to be employed by A., is not an act done in the way of the ordinary business of B., within the meaning of the 29 Car. 2, c. 7.(") A declaration by A. against B., upon a guarantee, is supported by proof of a document drawn up in the plural number, and concluding "as witness our hands," but signed by B. alone. The declaration stated the consideration to be, that A. “would then engage" C as traveller, and averred that A. "did then engage C.:" it was proved that A. had previously employed him in that capacity on one occasion: Held, that this proof was sufficient. Quare, whether A. (before 6 & 7 Vict., c. 85) was an admissible witness on behalf of B., to prove that he had paid over money to C. on account of B. ASSUMPSIT. The declaration stated, that the plaintiff, before, and at the time of the making of the promise, &c., was, and from thence had been and still was, a button factor; and that in consideration that the plaintiff, at the request of the defendant,(b) would then engage one Edward Tarrand as traveller and salesman to the plaintiff, in his business of button factor aforesaid, the defendant then promised the plaintiff to indemnify him for any loss he (a) The defendant, by his plea, appears to have sought to raise the question whether A.'s acceptance of the guarantee was an act in the way of his ordinary business as a button maker, or, in other words, whether it was the usual course of business for manufacturers and wholesale dealers, who employ travellers, to take security for the faithful discharge of the travellers' duties. No acceptance of the guarantee being shown to have taken place on a Sunday, it became unnecessary, in fact, to consider whether the act of such acceptance on a Sunday would have been within the statute. (b) These words, though mere surplusage here, would have been necessary in a declaration on an executed consideration, vide post, 46 (b). might be called upon to sustain through the immoral or dishonest conduct of the said E. T., whilst the said E. T. *should continue in the plaintiff's employment as such traveller and salesman. Averment: [*43 that the plaintiff confiding, &c., did then engage the said E. T. as his traveller and salesman as aforesaid, and that the said E. T., as such traveller and salesman, received of and from divers persons, to wit, John Howell, &c., divers sums of money, and divers goods and chattels of great value, in the whole amounting to a large sum of money, to wit, &c.; which sums, &c., the said several persons owed to the plaintiff, and which money and goods the said E. T., as such traveller and salesman, then, and on the said other days and times, received from the said persons, for and on account of the plaintiff, and in satisfaction and discharge of the money so owing from the said persons to the plaintiff; and the said persons did then, and on the other days and times, pay and deliver unto the said E. T., as such traveller and salesman as aforesaid, the said several sums of money, and goods and chattels, for and on account of the plaintiff, and in such satisfaction and discharge as aforesaid. And, thereupon, it then became and was the duty of the said E. T., as such traveller and salesman as aforesaid, as a moral and honest servant of the plaintiff, well and faithfully to account with the plaintiff for the said sums of money and goods and chattels so received by him as aforesaid, and to pay and deliver to the plaintiff the said sums of money, and the said goods and chattels on request. Yet the said E. T. did not, nor would, although he was, to wit, on, &c., requested by the plaintiff so to do, well and faithfully or otherwise account with the plaintiff for the said sums of money or any part thereof, or pay or deliver to the plaintiff the said sums of money or any part thereof, or the said goods and chattels or any part thereof; but on the contrary thereof, the said E. T. then wholly refused so to do, and did then, immorally and dishonestly, convert the said sums of money and the said goods and chattels to his own [*44 use; of all which several premises the plaintiff afterwards, to wit, on, &c., duly gave notice to the defendant, and then requested the defendant to indemnify him from the said loss which he had sustained through the said immoral and dishonest conduct of the said E. T. Yet the defendant did not, nor would, when he was so requested, or at any other time, indemnify, &c. The declaration contained also a count upon an account stated. Pleas: First, non assumpsit. Secondly, (to the first count), that the supposed promise therein mentioned was made by the defendant to the plaintiff on a certain Lord's Day, commonly called Sunday, to wit, on, &c., in the way of the plaintiff's said trade and business, and in his ordinary calling as such button factor, and in the course and exercise thereof, and that the same promise was not a work of necessity or charity, and was and is contrary to the statute in such case made and provided. Verification. Thirdly, (to the same count,) that the said E. T., as servant to the plaintiff, did not receive the said moneys and goods therein in that behalf mentioned, or any of them, from the said persons in the said first count also mentioned, or any, &c., for or on account of the plaintiff, or in satisfaction or discharge of the said money so owing from the said persons to the plaintiff, as in the said first count, &c. ; nor did the said persons pay or deliver unto the said E. T., as such traveller and salesman as aforesaid, the said several sums of money, and goods and chattels, or any of them, for or on account of the plaintiff, or in such satisfaction and discharge as aforesaid, modo et forma. The fourth plea (to the same count) traversed the notice, and the request to idemnify the plaintiff. The replication joined issue upon the first, third, and fourth pleas, and traversed the allegation in the second plea that the promise was made or the said Sunday, in that behalf mentioned, modo et forma; upon *45] which issue was joined. At the trial before Lord ABINGER, C. B., at the last assizes for the county of Derby, the following guarantee was proved. "Mr. R. J. Norton, "Sir,-In consideration of your engaging Mr. Edward Tarrand as traveller, we, the undersigned, do hereby agree to indemnify you against any loss or damage you may be called upon to sustain through his immoral or dishonest conduct. As witness our hands. "(Signed) "Witness, to the signature of Mr. Powell, "Robert Mereweather." Thomas W. Powell, The guarantee, though drawn up in the plural number, was signed by the defendant only; and it was signed by him on a Sunday, and then delivered to Tarrand, who, on a subsequent day, handed it to the plaintiff. It appeared also, that Tarrand had been employed on one occasion, as traveller for the plaintiff, before the guarantee was given. John Howell (one of the debtors mentioned in the declaration) was called as a witness for the plaintiff, and was objected to on behalf of the defendant as being interested in the event of the suit; his evidence was however admitted.(a) He proved, that, in the month of August, 1839, Tarrand called upon him and said, that if Howell would do business with the plaintiff, he, Tarrand, would give him an order for clothes; on which Howell ordered some buttons, and Tarrand gave an order for some clothes, which were afterwards delivered to him by Howell. A similar transaction took place in October. The amount of the clothes supplied to Tar*46] rand, was 81. 16s. It was also proved, that moneys had been paid to Tarrand by debtors of the plaintiff, which had not been paid over to the latter. It was objected for the defendant, that the consideration for the guarantee was not truly stated in the declaration, the engagement being prior, not subsequent, to the promise.(b) This objection was overruled by the Lord Chief Báron, who also held, that there was not sufficient evidence to support the second plea, inasmuch as there was no promise, till the delivery of the paper to the plaintiff; the mere signing thereof by the defendant not being sufficient. The plaintiff recovered a verdict for 15l. 12s. 6d. Goulburn, Serjt., now moved for a new trial on the ground of variance and of misdirection, or to reduce the verdict to the sum of 8l. 16s., on the ground that Howell's evidence was inadmissible. First: there was a variance between the declaration and the contract (a) See Russell v. Blake, antė, vol. ii. 374, (40 E. C. L. R.,) 6 & 7 Vict. c. 85. (") If the evidence had shown a continuous engagement, subsisting at the time of the proaise, a question might have arisen whether the word "engaging," in the guarantee, must not Je understood as meaning "having engaged," in which case the guarantee would be void for not showing that such by-gone employment had been at the request of the defendant. The proper mode of raising the defence would appear to be, to plead non-assumpsit, and also that the plaintiff did not engage E. T. modo et formâ. Then, upon showing the prior and sub sisting engagement, the defendant would be entitled to a verdict upon the former plea, if "engaging" were read as "having engaged," and upon the latter, if "engaging" were understood to refer to a future engagement, and no dissolution of the prior engagement were shown. VOL. XLIII. 5 |