Toplis and Another v Grane
| Jurisdiction | England & Wales |
| Judgment Date | 21 May 1839 |
| Date | 21 May 1839 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 1245
IN THE COURT OF COMMON PLEAS
S. C. 7 Scott, 620; 2 Arn. 110; 9 L. J. C. P. 180. Followed, Dugdale v. Levering, 1875, L. R. 10 C. P. 196. Applied, Sheffield Corporation v. Barclay, [1903] 2 K. B. 589; [1905] A. C. 399.
toplis and another v. g-rane. May 21, 1839. [S. C. 7 Scott, 620; 2 Arn. 110; 9 L. J. C. P. 180. Followed, Dugdale v. Levering, 1875, L. E. 10 C. P. 196. Applied, Sheffield Om-pwation v. Barclay, [1903] 2 K. B. 589; [1905] A. C. 399.] Defendant, attorney of 0., authorized Plaintiffs, as brokers, to distrain the goods on A.'s premises, for rent due to 0. ; whereupon the distress was made. Some of the goods being privileged from distress, and claimed by the owners, Plaintiffs required an indemnity, which Defendant gave on the part of O., and afterwards said he would give a further guaranty. The owners of the privileged goods having sued and recovered against Plaintiffs, Held, that Defendant was liable to make good the loss they had sustained. The declaration stated, that the Defendant at the time of the making of his promise and undertaking thereinafter mentioned, carried on the business of an attorney and solicitor; that just before the time when, &c., he had represented and affirmed to the Plaintiffs that he was the attorney of one Frances Osborne, and that the said F. Osborne was then lawfully entitled to certain arrears of rent, to wit, 2101. 15s. 6d., due to her at Christmas 1831 from one William. Armstrong, in respect of the rent of certain premises, being No. 5 New Bridge Street, in the parish of St. Bride's, in the city of London; and that she was then entitled to distrain on the said premises for the recovery thereof; and thereupon, on the 14th of January 1832, in consideration thereof, and that the Plaintiffs, at the [637] special instance and request of the Defendant, would, by themselves or their agents, seize and distrain certain goods and chattels on the premises at No. 5 New Bridge Street, for the recovery of the said arrears of rent so alleged to be due to F. Osborne, the Defendant undertook, and then faithfully promised the Plaintiffs to indemnify and save harmless the Plaintiffs from all loss, damage, costs, and charges which should or might arise or happen, or be incurred by them for or by reason of such seizure and distress of the said goods and chattels, or any of them : that the Plaintiffs, confiding in the said promise and undertaking of the Defendant, did then employ certain persons then carrying on the business of brokers in copartnership, to wit, one Thomas Warlters, one William Warlters, and one Samuel Lovejoy, to make such seizure and distress of the said several goods and chattels as agents of the Plaintiffs in that behalf; and the Defendant then assented to the employment of such last mentioned persons by the Plaintiffs. That the said agents of the Plaintiffs did then, to wit, on, &c. as such agents, seize and distrain the said several goods and chattels then being on the premises for the recovery of the arrears of rent alleged by the Defendant to be due to F. Osborne. That after the said seizure and distress, to wit, on, &c., divers large quantities of the said goods and chattels so distrained as aforesaid were claimed by divers persons, on the ground that the same goods and chattels respectively were privileged from the said seizure and distress so made on behalf of F. Osborne; of which claims the Defendant had notice, and was then requested by the Plaintiffs to permit them to return the same goods and 1246 TOPLIS V. GRANE 5 BING. (N. C.) 838. chattels to the said respective claimants, but the Defendant then wholly refused to give such permission, and then directed the Plaintiffs to retain the said goods and chattels, and cause the same [638] to be retained as such distress as aforesaid. That several persons who had so claimed the said several goods and chattels on the ground of their being so privileged from distress and seizure, and who were then at the time of the said distress in fact entitled to the possession of the same goods and chattels respectively, thereupon impleaded said T. Warlters and W. Warlters, together with other persons, in divers, to wit, ten different actions at law, for the recovery of damages in respect of the seizure and detention of the several goods and chattels to which they were so respectively entitled; which said respective actions the Defendant did defend or cause to be defended; and such proceedings were thereupon had in the said several actions that they the said T. Warlters and W. Warlters were afterwards forced and obliged to pay, and did out of the joint funds of themselves and said S. Lovejoy as such copartners, pay unto the said several persons, being Plaintiffs in the respective actions, divers sums of money, amounting in the whole to 1401., for damages in respect of such seizure and distress of and upon their said respective goods and chattels, and in order to compromise the claims and demands of the said several persons in respect thereof, and for certain costs of suit of the respective Plaintiffs in the said actions; and T. Warlters and W. Warlters were also forced and obliged to pay, and did out of the joint funds of themselves and S. Lovejoy, as such copartners, pay divers other sums of money, amounting in the whole to 1501., for costs necessarily incurred by them in respect of the premises, and in and about the keeping and detaining of the said goods and chattels to await the result of the actions; and the said T. Warlters, W. Warlters, and S. Lovejoy, then demanded payment from the Plaintiffs of the several last mentioned sums of money. But although the said respective goods and chattels so claimed as being privi-[639]-leged from the distress and seizure were at the time of such distress and seizure in fact so privileged, whereof the Defendant had due notice; and although afterwards, on the 25th January 1835, the Plaintiffs gave notice to the Defendant of the demand of payment so made upon them by T. Warlters, W. Warlters, and S. Lovejoy, and then requested the Defendant to indemnify and save harmless the...
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