Mr. Justice Sutheeland, who heard this motion, inquired, in the progress of the argument, whether there was not a distinction between the case of several counts for separate and distinct causes of action, some of which counts were good and others bad, and the case of several counts upon one and the same cause ofi action, differing in form and the mode of statement, but in substance the same.
In the former case, where evidence was given, applicable as well to one count as the other, it might well be imagined that there would be danger in permitting an abandonment of the postea; but in the latter it was not perceived how the defendant could by possibility be injured. After the argument, the judge took time to consider and at a subsequent day granted the motion. See Sayre v. Jewett, ante 136.