#### Person v. The President & Directors of the State Bank of N. C.

From Wake.

Where a Plaintiff sued out twenty-one warrants on twenty-one notes, amounting in all to one hundred and four dollars, in cases where the causes of action were the same, and the defence was the same In all, the Court compelled Plaintiff to consolidate.

*Person*warranted the State Bank in twenty-one different cases, on their notes, the whole amount of notes being somewhat more than g 100, and having obtained judgments, the Bank appealed to the County Court of Wake. In the County Court, Defendant moved to consolidate the several suits, and the Court ordered them to be consolidated, on condition that the Defendant would not plead in abatement, the want of jurisdiction in the Justice who tried the warrants, and that they would pay the fees of the Clerk and Constable. Defendant acceded to the. terms, and pleaded the general issue, payment and set off, and the cause was put *to*a *Jury, who found*a verdict for the Plaintiff, and assessed his damages to 8127 34 and costs, according to which finding the Court gave judgment, from which Defendant appealed to the Superior Court. The Plaintiff also appealed from the judgment of the Court as to the consolidation. Afterwards, in the Superior Court, Paxton Judge presiding, it was ordered that the appeal of the Plaintiff from the order of consolidation should be dismissed with costs, and the cause stand as one suit. Brought up on appeal by the Defendant ; whereupon, *Person*appealed to this Court.

In this Court, by consent of parties, the records of all the cases in the Superior Court (twenty-one in number) were considered as being before the Court, from which it appeared, that in each case, the *Justice gave*judgment for fifty cents more than the note amounted to, besides i *nterest;*and further, that ten of the notes were protested, and eleven were not.

*295Haywood, for the Bank. —

Tins appeal should be dis-Riissed, for the order of consolidation was no final iudg-w ,J merit. If it be sucli a final judgment that upon it an appeal may be had to this Court, it is also such as that an appeal might have been taken thereon before verdict to the Superior Court, and in either case the appeal of the Plaintiff must be dismissed, as he did not appeal from the order in the County Court before verdict.

A rule to consolidate is matter of discretion in the Court, and it has been repeatedly decided that there can be no appeal from the discretion of one Court to another.

But the County Court acted rightly in ordering these suits to be consolidated. This manner of proceeding is admitted to be law, and the right of the Plaintiff respecting *Bank bills*must be alike, so where a Bank holds several notes of an individual, and if here the Defendant had held the Plaintiff’s notes of the same tenor and due at same time, and had brought twenty-one suits against him, the whole community would have been roused, and this Court would have little hesitation in attaching to such proceedings the character of *shameful*oppression. Shall the mere change of sides between the same parties, require of us to introduce the fable of the Lawyer and Farmer?

From the cases of *Cecil*v. Briggs, 2 *T. Reports*639. 9 *Johnson’s Reports*262, and *Tidd’s Practice*556, it is clearly deducible as a rule on this subject, that wherever there are two or more suits between the same Plaintiff and same Defendant, for notes or other contracts, which may be joined in the same declaration, the Court will give to Defendant a rule to consolidate, and *clearly*so where the notes sued on, fall *due at the same time,*and suits are brought thereon at the same time.

Now here, the Bank bills were not due till demanded, and being all demanded at the same time, then became due to *Jesse Person.*Indeed it may well be urged, that these bills are but written evidence on separate papers of one debt, due by one contract.

*296If the Plaintiff can bring his separate warrants on each bill, and the Defendant be without the right to this ruje, what difference is there in the cases which is to prevent a merchant, from suing out a warrant for each *item*in his account ? And who would be willing to sanction such a practice ?

" It is said however, that the case before the Court is not like that of *Cecil*v. *Briggs,*because in the latter case Defendant was held to *bail.*The Court, in giving their opinion in the case, do not rely on that fact at al!, they only enquire whether the proceedings taken are oppressive *?*And if it be not oppressive, to heap costs on a Defendant to the full amount of his debt or more, I can scarcely conceive that our Courts would regard it so *to*ask *bail*of the Defendant.

It is also argued, that no consolidation must be made where warrants are sued out, because by increasing the sum adjudged in each separate warrant, the Defendant will obtain the benefit of enlarging the stay of execution. If this proves any thing, it is in favor of the Defendant. Our Legislature have clearly intended, that where a man owed 8100, as it might injure him seriously to have his property sacrificed ,the next day after judgment, at the suit of a grinding and oppressive creditor, therefore he might have the privilege of six months time to raise the money, and for less sums shorter periods are allowed. Will this Court permit a practice to grow up that shall control this provision of our law, which has proved so kind a shield to the poorer class of an industrious community? It is manifest that the length of stay is intended to be regulated by the amount of the debt, but a lender of money, or other creditor, need only take twenty notes of his debtor for five dollars each, and instead of six months stay, the Defendant gets only twenty days.

The case of *Smith*v. *Bow ell,*3 JV°. *C. T. Rep.*200, is referred to as conclusive authority against this rule of consolidation; but by a reference to tiiat case, the Court will see that it proceeded entirely on the ground that our *297Legislature having passed a law to prevent the issuing of *due bills,*imposed as a penalty on the maker, that he might be sued on such due hills without regard to the amount, in the County or Superior Court, and that no demand was necessary, and a rule 6f consolidation given to the Defendant would disarm the act of its sting, and virtually repeal its .provisions. It is therefore no authority in this case.

But suppose this Court shall be of the opinion that the consolidation rule was improperly granted, and that it is the right of the Plaintiff to have his separate action. In the County Court this rule is given on payment of Clerk’s and Sheriff's costs, the Defendant accepts the terms, pays the costs, and the Plaintiff then joins issue on the *one consolidated suit,*and takes his verdict. It is too late for him to compiaiu.

Hart, Judge. —

The power which the Courts exercise in consolidating actions, has for its object the attainment of justice with the least expense and vexation to the parties, but in the exercise of this power the decisions have not been'uniform.

In *Smith*v. *Crabb,*2 *Str.*1149, and *Mynot*v. *Bridger, Ibid.*1178, the Court refused to consolidate, because being distinct actions, the Plaintiff might be ready for trial in one action, but unprepared in the other.- But in *Cecil*v. *Briggs,*2 *Term*639, the Court held that not to be a good reason against consolidating two actions, both being brought in assumpsit, the causes of action arising is) the same County, the writs having been sued out on the same day, and the Defendant having been held to bail in both actions $ because they said, if the Defendant was not ready in both actions, but only ready in one, lie might continue both. The reasoning on which this case stands is not satisfactory to the Court, in *Thompson*v. *Shepherd,*9 *Johnson*262 — there three actions were brought by the endorser against the maker on three promissory notes, the notes were dated on different days, for differ-*298entsums, and payable at different times to tiie same person, who endorsed them to the Plaintiff, the writs were issued at the same time and served at the same time. On motion for that purpose, the Court refused to consolidate the actions, because they said different defences might be set up.

In the present case the different suits commenced by way of warrant. The Defendants appealed to this Court; if they ajipealed without just cause, they ought not to ho favored. The Justice gave judgment in each case for fifty cents more (besides interest) than the notes amounted to, amounting in all to $10 50, ten of the notes were protested, eleven were not protested. In this situation of things, the Defendants might have supposed themselves aggrieved. I therefore lay that circumstance, the appeal, out of the way. Where suits were commenced by way of warrant, two warrants would have answered the Plaintiffs purpose to recover $104, as well as twenty-one, and indeed would have been less trouble to him as well as expense to the Defendants. When the warrants were consolidated in the County Court, I can see no injury the Plaintiff was likely to sustain by it; it was altogether improbable there should he different defences, the causes of action were the same. I cannot therefore find fault with the discretion which the Court have exorcised, much expense or cosls is saved by it. Although the authorities before recited differ in some respects, they all agree in this, that the Court possesses the power of consolidating suits when a proper occasion offers. I think the judgment of the Superior Court should be affirmed.

The Chibe-Justice and Judge Henderson, concurring,

Judgment aejtrmed.