Collinge v Heywood
| Jurisdiction | England & Wales |
| Date | 1839 |
| Court | Court of the Queen's Bench |
English Reports Citation: 112 E.R. 1352
IN THE COURT OF QUEEN'S BENCH
S. C. 1 P. & D. 502; 2 W. W. & H. 107; 8 L. J. Q. B. 98. Not followed, Spark v. Heslop, 1859, 1 El. & El. 563. Referred to, Blyth v. Fladgate, [1891] 2 Ch. 362.
collinge against heywood. Tuesday, January 22d, 1839. On a contract to f3j-l.cn.l6i. indemnify a plaintiff against costs, which he is afterwards called upon to pay, the cause of action arises when he pays, not when the costs are incurred, or the attorney's bill delivered to such plaintiff. Therefore the Statute of Limitation , _ runs from the time of payment. [S. C. 1 P. & D. 502; 2 W. W. & H. 107; 8 L. J. Q. B. 98. Not followed, Spark v. ffeslop, 1839, 1 El. & El. 563. Referred to, Blyth v Fladgate, [1891] 2 Ch. 362.] Assumpsit. The declaration recited that Daniel Potter had distrained plaintiff's goods for rent; that defendant and John Whytel, for certain reasons which the declaration specified, were desirous that plaintiff should replevy, and prosecute an action of replevin against Potter for taking such distress ; and that, in consideration of the premises, and that plaintiff, at defendant's and Whytel's request, had replevied, and commenced an action of replevin (as above), defendant undertook and promised plaintiff " to save, defend, and keep harmless and indemnified the said plaintiff from the said distress, and all costs, damages, and expenses which he, the said plaintiff, had incurred or sustained, or should thereafter incur or sustain, by reason [634] thereof, or by reason of the replevying of the same, or of the said action of replevin so commenced aa aforesaid, or the prosecution thereof." Averment, that plaintiff prosecuted the action, &c., and, the plaint being removed, proceedings were had, &c. And that, although plaintiff necessarily incurred, laid out, and was obliged to pay, and did pay, divers, sums, &c. for costs and expenses of the replevin and of the action, &c. (notice to defendant, and request to him to indemnify), yet defendant, disregarding, &c., did not, nor would, when so requested, or at any time, save or defend plaintiff, or keep him harmless and indemnified from the premises or any part thereof, or from the payments, costs, and charges aforesaid, or any of them, or any part thereof, or from all or any damages in respect thereof, but therein failed, &c. Common counts for work and journies, money paid, &c., and on an account stated. Plea (among others not material here), that the causes of action did not accrue within six years. Verification. Traverse ; and issue thereon. On the trial before Bosanquet J., at the Chester Spring Assizes, 1837, it appeared that the plaintiffs action of replevin was commenced in 1825. The plaintiff put in a written agreement between himself on the one part, and defendant and John Whytel on the other, bearing date April 27th, 1826, whereby, after reciting that Potter claimed part of the rents of certain estates, including the premises held by plaintiff, and had distrained upon him for his alleged proportion of such rents; that defendant and Whytel disputed such claim ; and that it had thereupon been agreed that plaintiff should be indemnified from all damages on account of such distress, or any other distress or action which [635] Potter had commenced, or might commence, against plaintiff on account of the said rent, defendant and Whytel, for themselves, and each of them, did promise plaintiff and agree with him that they, their executors, &c., or some or one of them, did and should from time to time, and at all times thereafter, save, defend, and keep indemnified the plaintiff and his goods, chattels, Ac., " from the said distress, action or actions, suits, costs, damages and expenses which are now pending, or may be hereafter commenced, instituted, or otherwise incurred by reason or means of the said Daniel Potter claiming or suing for his alleged: share or parts of any rent or rents arising from the said estates." It further appeared that certain costs were incurred in the replevin suit in the course of 1826, and that the plaintiff's attorney delivered a bill to him for such costs, which he paid partly in September 1830, and partly in 1831. The present action was commenced June 20th, 1836. The attorney's bill was delivered 9 AD. &E. 838. COLLINGE V. HBYWOOD 1353 more than six years before. The defendant's counsel contended, that the Statute of Limitations began to run from the time when the costs were incurred, not from the time of paying the bill, and, therefore, that the action was too late. The learned Judge, thought otherwise ; and the jury, under his direction, found a verdict for the plaintiff. Evans, in Easter term 1837, moved for a new...
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The Salina
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...does not (unless the contract provides otherwise) arise until the indemnified person can show actual loss: see Collinge v Heywood (1839) 9 Ad. & E. 633. This is, as I understand it, because of promise of indemnity is simply a promise to hold the indemnified person harmless against a specifi......
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