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 Plaintiffs from and against the same payments and all damages in respect of the premises; nevertheless, the Defendant, not regarding his promise and undertaking, did not, nor would, when he was so requested, or at any other time, indemnify and save harmless the Plaintiffs from such payments to T. Warlters, W. Warlters, and S. Lovejoy, of the last mentioned sums of money or any part thereof, or of all damages in respect thereof, but wholly neglected and refused so to do: by means whereof they, for recovering damages on occasion of the premises, afterwards impleaded the Plaintiffs in a certain action in his Majesty's Court of Exchequer, and such proceedings were thereupon had in the said Court, that the said T. Warlters, W. Warlters, and S. Lovejoy, afterwards, by the consideration and judgment of the Court, recovered against the Plaintiffs a large sum of money on occasion of the premises, and of their costs by them about their suit in that behalf expended, to wit, 1647. 9s., which sum of money the Plaintiffs afterwards, to wit, on, &c., were forced and obliged to pay, and did then pay to T. Warlters, W. Warlters, and S. Lovejoy: and the Plaintiffs were also forced and obliged to lay out and expend, and did lay out and expend, a large sum, to wit, 50%., in and about their defence in the said action: from which said several sums of money so paid by the Plaintiffs, the Defendant had not indemnified and saved harmless the Plaintiffs, although often requested so to do, but had therein wholly failed and made default, con 1839. TOPLIS V. GRANE. 1839. TOPLIS บ. GRANE. trary to the form and effect of the said promise and undertaking of the Defendant so by him made. The Plaintiffs also alleged as a further breach, that although they had been put to and had incurred divers other costs and charges, to wit, 100%., on occasion of the premises; and although afterwards, on the 4th of June 1835, the Plaintiffs required the Defendant to indemnify them the said costs, charges, and expenses, yet the Defendant, not regarding his said promise, had not indemnified the Plaintiffs, nor paid to them the said moneys, or any part of them. The declaration also contained indebitatus counts,each claiming 200l.,- for the price and value of work done and materials for the same provided by the Plaintiffs; for money paid for the use of the Defendant; and for money found to be due on an account stated. The Defendant pleaded, first, non assumpsit, upon which issue was joined. Secondly, as to so much of the causes of action in the first count mentioned as related to the employment of T. Warlters, W. Warlters, and S. Lovejoy, by the Plaintiffs in that count mentioned, that the Defendant did not assent to the employment of them to make such seizure and distress modo et formâ; upon which issue was joined. Eighthly, as to the first count, that the Plaintiffs were damnified as in that count mentioned, by and through the negligence, misconduct, and default of the Plaintiffs and their servants, and by and through the want of skill, care, and attention of the Plaintiffs and of their servants, and not further or otherwise. Eleventhly, as to the second and third counts, that the said work in the second count mentioned, was done and performed by the Plaintiffs, upon the retainer of the Defendant, for the purpose of distraining for certain arrears of rent in and upon certain premises; and that the materials therein also mentioned were provided by the Plaintiffs in and about the same; and that the money in the third count mentioned was paid and disbursed by the Plaintiffs in and about the said work upon the said retainer, and for the purpose aforesaid; and that the work was done and performed by the Plaintiffs in so negligent, unskilful, and improper a manner, that by and through the default, negligence, and want of skill, care, and attention of the Plaintiffs in that behalf, the said work and the materials for the same provided, and the disbursements so made, became and were wholly useless and of no value whatsoever to the Defendant; whereof the Plaintiffs, at the time in the second and third counts mentioned, had notice. To the eighth plea, the Plaintiffs replied, that they were not damnified as in the first count mentioned, by and through the negligence, misconduct, or default of the Plaintiffs or their servants, or by or through the want of skill, care, or attention of the Plaintiffs or their servants, modo et formâ: upon which issue was joined. To the eleventh, that the work in the second count mentioned was not done and performed by the Plaintiffs in so negligent, unskilful, or improper a manner, that by and through the default, negligence, want of skill, care, or attention of the Plaintiffs in that behalf, the work and materials for the same provided, and the disbursements so made in respect of the same, became and were wholly useless, and of no value whatever to the Defendant, modo et formâ; upon which issue was joined. The action was brought to recover the sum of 1857. 9s. 6d. under the following circumstances. The Plaintiffs, at the several times hereinafter mentioned, were partners as auctioneers and valuers, under the firm of Toplis and Son. The Defendant is an attorney; and from a period anterior to Christmas 1831, 1839. TOPLIS V. GRANE. 1839. TOPLIS บ. GRANE. until the 24th of June 1832, carried on business as such in partnership with Brooks and Cooper; since that time he has practised as an attorney without a partner. At Christmas 1831, the sum of 210l. 15s. 6d. became due from William Armstrong to Frances Osborne, the aunt of the Defendant, in the first count respectively named, for rent of the premises in the first count referred to. William Armstrong was an auctioneer; and the lower part of the premises was used by him for the purpose of an auction room. On the afternoon of Saturday the 14th of January 1832, the Defendant called at the Plaintiffs' office, but not finding them there, he gave their clerk the following written authority to distrain:- To Messrs. Toplis, or their agent,—I do hereby authorise you, or your agent, to seize and distrain the several goods and chattels on the premises, No. 5. New Bridge Street, in the parish of St. Bride's, in the city of London, for the sum of 210l. 15s. 6d. for arrears of rent due from William Armstrong to Frances Osborne, at Christmas last and for so doing this shall be a sufficient warrant or authority. As witness," &c. : The Defendant desired the clerk to get the distress levied forthwith, as there was a large quantity of furniture in the auction room. On being informed that both the Plaintiffs were absent, he said, unless he could get the distress levied at once, he must take it elsewhere to be done; whereupon the clerk observed, that as soon as any one came in it should be attended to. The clerk altered the warrant by erasing the name Toplis, and substituting the name of Warlters, and by introducing after the words "or their agent," the name of "Joshua Gray." He then took the warrant, as altered, to Messrs Warlters and Lovejoy, with directions to execute the same forthwith: and early on Monday morning the 16th of January, Messrs. Warlters and Lovejoy, by their clerk, Joshua Gray, distrained all the goods on the Their man, Jonathan premises for the arrears of rent. Afterwards, the Plaintiffs informed the Defendant of the levying of the distress, by the following letter: "Sir- We beg respectfully to inform you, that the levy and distress was made on the effects at Armstrong's which produced a strong sensation on the parties interested, and they have made many threats on the subject, but we presume there will be no difficulty." On the 19th of January, Messrs. Warlters and Co. were served with written notices directed to them and to the Defendant, and to the said Frances Osborne, of claims of some of the goods by ten different persons, as being their property; whereupon Messrs. Warlters handed over such respective notices to the Defendant. On the same day the Plaintiffs sent their clerk to the Defendant, to request that he would give them further directions, and an express indemnity before they proceeded further with the distress: when the Defendant wrote to the Plaintiffs the following letter: "Sir-We hereby undertake on the part of Mrs. Osborne, to indemnify you for proceeding to sell the goods distrained on the premises, No. 5. New Bridge Street. 20 January, 1832. Your obedient servants, Brooks, Grane, and Cooper. To Messrs. Toplis and Son." Whereupon the Plaintiffs forwarded the same to Messrs. Warlters, with the addition underwritten of the following indemnity, which they required: · "We hereby undertake to indemnify you in the above matter. James Toplis and Son. To Messrs. Warlters and Lovejoy." 1839. TOPLIS ข. GRANE. |