1842. SHARP ย. as he has the option of selecting the most favourable case to try. Then the question here is, whether there is any real LETHBRIDGE. 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. 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 case. 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, not on the ground that the actions were improperly brought 1842. SHARP บ. 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 LETHBRIDGE. 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. Rule refused. (a) (a) In The Royal Exchange fendant had been held to bail Company v. in each. Consolidation was re- 1842. April 20. the contract declared upon, -being a contract which, under the statute of NORTON V. POWELL. A plea, that 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 might be called upon to sustain through the immoral or dishonest conduct of the said E. T., whilst the said E. T. frauds, required the defendant's signaturewas 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. 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. (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). 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 1842. NORTON บ. POWELL. 1842. NORTON V. POWELL. 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 salesinan 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 |