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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, not on the ground that the actions were improperly brought [41] in the 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 plaintiffs attorney.

CRESSWELL J. concurred.
Rule refused (a)?.

[42] Norton v. POWELL. April 20, 1842.

[S. C. 11 L. J. C. P. 202.] 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)?-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.--Quære, 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

(a)? In The Royal Exchange Company v. - 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. 598, 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; Mynot 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. 731 ; Grimstone v. Burgers, Barnes, 176.

(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 shewn 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 (a).

indemnify him for any loss he might be called upon to sustain through the immoral or dishonest conduct of the said E. T., whilst the said E. T. [43] should continue in the plaintiff's employment as such traveller and salesman. Averment: 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 [44] the said goods and chattels to his own 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 formâ. The fourth plea, (to the same count), traversed the notice, and the request to indemnify 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 on the said Sunday, in [45] that behalf mentioned, modo et forma ; upon 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) THOMAS W. POWELL,

“19 Haymarket “Witness, to the signature of Mr. Powell,

“ Robert Mereweather.”

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 [46] amount of the clothes supplied to Tarrand, 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 (a)? This objection was overruled by the Lord Chief Baron, 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 81. 16s., on the ground that Howell's evidence was inadmissible.

First: there was a variance between the declaration and the contract proved. In the first place it was alleged to be the promise by the defendant alone, but though signed by him only, it was drawn up in the plural number. [Tindal C. J. It is like a joint and several promissory note. A note may be good, if drawn up in the plural number, though signed by one person only. [47] Besides the point is not raised on the record (a)?] Then, the consideration is not truly stated; it is alleged in the declaration that the consideration was, that the plaintiff “would then engage" Tarrand, whereas in fact he had been previously engaged by him, and the real consideration was, that he would continue him in his service, and should have been so stated; Wain v. Warlters (5 East, 10; 1 J. P. Smith, 299), Saunders v. Wakefield (4 B. & Ald. 595). [Cresswell J. The plaintiff avers that he did afterwards engage Tarrand in service; why did not the defendant traverse that allegation if it was incorrect. By not doing so he has admitted it? Coltman J. The defendant is seeking to vary the written contract by parol.]

Secondly, as to the second plea, the evidence sufficiently shewed that the contract was in fact made on a Sunday. (Cresswell J. If a man write to his creditor on a Sunday admitting the debt, and promising to pay it, can this be said to be a void contract under the statute of Charles ? Tindal C. J. I cannot say that I think that this was a contract, which, if made on a Sunday, was in the ordinary way of business. In the case of partnership, there is an implied authority, that one partner may enter

(a) See Russell v. Blake, ante, vol. ï. 374, 6 & 7 Vict. c. 85.

(a)? If the evidence had shewn a continuous engagement, subsisting at the time of the promise, a question might have arisen whether the word “engaging," in the guarantee, must not be understood as meaning “having engaged,” in which case the guarantee would be void for not shewing that such bygone 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 shewing the prior and subsisting 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 shewn.

(a): If the intended co-promisor had actually signed the guarantee, the non-joinder would have been pleadable only in abatement. It might also be contended, that the words “we the undersigned” and “witness our hands” shewed that the party first signing did not mean to enter into the engagement alone, and that until both had signed, the contract was conditional and incomplete.

into ordinary contracts, and thereby bind the firm ; but he cannot bind them by giving guarantees (d).

Per curiam. Rule refused on first and second points.

[48] Upon the third point, as to the reduction of damages, the court granted a rule nisi ; which on a subsequent day (8th May), was made absolute by consent.

M'LAUGHLIN V. PRYOR. April 26, 1842.

(S. C. 4 Scott, N. R. 655 ; 11 L. J. C. P. 169: at Nisi Prius, Car. & M. 354. Adopted,

Pidgeon v. Legge, 1857, 5 W. R. 650; Holmes v. Mather, 1875, L. R. 10 Ex. 269. See Jones v. Liverpool Corporation, 1885, 14 Q. B. D. 890.]

A party, consisting of the defendant and others, hired for a day's excursion a carriage

and post horses, driven by postilions, who were the servants of the owner of the horses. The defendant rode upon the box. The postilions, in endeavouring to force their way into a line of carriages, overturned a gig, and seriously injured the plaintiff, who was in the gig. The defendant, at the time and afterwards, held himself out as responsible for the accident, and used expressions shewing that he had a control over the postilions at the time it happened :-Held, that he was liable in trespass.

Trespass. The declaration stated that the defendant heretofore, to wit, on, &c., with force and arms forced and drove a certain carriage and certain harness attached thereto, and with which the same was then being drawn, upon and against a certain carriage, to wit, a gig, in which the plaintiff was then riding in and along a certain public and common highway, and thereby pulled over and upset the said gig, and thereby the plaintiff was then cast and thrown with great force and violence from and out of the said gig, to and upon the ground there, and was there greatly bruised, hurt, and wounded, &c. (with special damage in loss of business as a newspaper editor, and in the employment of other persons to publish the same).

Pleas : first, not guilty ; on which issue was joined ; secondly, that at the time when, &c. the plaintiff was being driven in the said carriage called a gig, by a person whose name is to the defendant unknown, in and along the said highway, and at the said time when, &c. the same was so carelessly and negligently and improperly driven, stopped and managed by the said person in the said highway, near to the said carriage and harness so forced and driven by the defendants as in the declar-[49]-ation mentioned, that by reason thereof the said carriage and harness, without any default or wrong on the part of the defendant, was forced and driven by the defendant upon and against the said carriage called a gig, and thereby pulled over and upset the same, and occasioned the said injuries and damages in the said declaration mentioned ; and so the defendant says that if any hurt or damage then happened to the plaintiff, the same was caused and occasioned by the said negligent, careless, and improper driving of the said carriage called a gig, and not by any default of the defendant, which is the said supposed trespass in the said declaration mentioned.

Replication to this plea, de injuriâ.

At the trial before I'indal C. J., at the sittings in London after last Trinity term, the following facts were given in evidence on the part of the plaintiff.

On the 3d of June 1840, the plaintiff was proceeding to Epsom races in a pony gig, belonging to and driven by one Mason. The defendant, who, together with a party of friends, had hired a carriage and four post-horses, driven by two postilions in the service of the owner of the horses, was on his way to the same place. The defendant and another person rode on the box of this carriage. At the toll-bar at Sutton a line of carriages had formed, and Mason's gig was in that line. The carriage in which the defendant and his friends were driving came up to the toll-bar about the same time with Mason's gig, but the carriage was out of the line. Mason's gig was advancing at the time slowly in the line (there being a stoppage for the purpose of taking toll at the gate), when the postilion on the wheel-horse of the carriage in

(d) See Duncan v. Lowndes, 3 Campb. 478; ante, 42 (a).

which the defendant was seated, called out to the postilion on the leader, “go in there.” The latter immediately turned his horses' heads before Mason's gig. Mason endeavoured to keep his pony in [50] the line, when the man on the wheel-horse of the carriage again called out, “Go on, you are all right there.” The postilion on the leader again pushed his horses forward, and the trace of the wheel horse caught the wheel of Mason's gig and pulled it over, and both the plaintiff and Mason fell out. Some one in the carriage called out, “Go on, go on!” but Mason got up, and laying hold of the horses' heads, stopped them; telling the party in the carriage that they should not move on ; for he was determined to take the horses back to the Cock at Sutton, until he knew to whom they belonged. Several of the parties then got out of the carriage, and the defendant said to Mason, “ If you do that, in what an awkward predicament you will place us—we can neither get to the races nor get home.” After some further discussion, he added, “I will settle it with you here now; I will give you money to any amount; tell me what you want, you shall have it.” Mason refused to settle the matter then, and at last the defendant gave his card to him, saying that he would be answerable for all that had occurred, if he would allow him to proceed. The carriage then drove on. Some days afterwards Mason called on the defendant at his chambers, and told him he came about the damage done to the chaise. The plaintiff said it should be repaired; he was in duty bound to repair it, and that he would send a man to look at it. He did not do so however, and Mason, having got it repaired, called again upon the defendant with the account, who said he would pay it, and was about to do so, when he added, “I shall not pay it now, for if I pay you this amount, Mr. M‘Laughlin will expect me to pay whatever demand he may make upon me; you shall be paid it, but I shall not pay it now ; I will settle Mr. M'Laughlin's affair before I settle yours.” Some dispute then arose between the parties as to the accident, and the defend-[51]-ant said, “If you had quietly gone out of the line it would not have happened ; If you had done that, I had intended to have pulled up and let you in again, in the front.” He added, that the general way of going to races was to cut out and cut in, and get on in the best way one could. Mason then said to the defendant, “If you will give me up the proprietor of the horses and carriage, I will exonerate you from the repair of the chaise altogether;" but the defendant said he should give up no names, he had made himself liable for the damage that had occurred. The plaintiff was very seriously injured by the upsetting of the gig, and had become permanently lame.

It was contended on the part of the defendant, on the authority of Laugher v. Pointer (5 B. & C. 547 ; 8 D. & R. 556), and Quarman v. Burnett (6 M. & W. 499), that, not being the owner of the carriage and horses, he was not liable to the action. The Lord Chief Justice however ruled that those cases did not apply to an action of trespass, but reserved leave to the defendant to move to enter a nonsuit.

Evidence was called, on the part of the defendant, to shew that the defendant had called out to the postboys to let Mason's gig drive on before them; and that the gig had been driven against the horses of the carriage. The post-boy who rode the leaders on the occasion (the other one being absent from the country), stated that they had no orders to break into the line, that “nobody said any thing to them."

The Lord Chief Justice told the jury, that in order to find a verdict for the plaintiff, they must be satisfied that the accident arose from the carriage driving against the gig, and not from the gig driving against the carriage. The jury found a verdict for the plaintiff, damages 6001.

[52] Channell Serjt., having in Michaelmas term last, obtained a rule nisi to enter a nonsuit, pursuant to the leave reserved ;

Talfourd Serjt. now shewed cause. It is submitted that the defendant is responsible for the injury done to the plaintiff. The defendant being on ihe box of the carriage, and having the opportunity of seeing what was passing, and possessing the power of controlling the postilions, must be held to have sanctioned them in their attempt to break the line of carriages; and if so, such sanction made him a trespasser. In point of fact, the evidence at the trial shewed that the parties on the box were exercising a control over the post-boys, and giving them directions. In Gregory v. Piper (9 B. & C. 591, + Mann. & Ryl. 500), a master ordered a servant to lay down rubbish near his neighbours' wall, but so as not to touch it. The servant used ordinary care in executing the orders of his master, but some of the rubbish naturally ran against the wall. It was held that trespass might be maintained against the master, he being liable in that

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