1839. TOPLIS บ. GRANE. On the 21st of January the goods distrained were duly condemned, and some of them were removed from Armstrong's premises to Messrs. Warlters and Co.'s ware-rooms in Farringdon Street, preparatory to a sale; of which removal the Defendant had notice. On the 23d of January a clerk of Messrs. Warlters called on the Defendant, and stated that Mr. Marks, the claimant's attorney, had called upon Messrs. Warlters, and said that he had got a note from the Defendant to deliver up the goods; when the Defendant said that Messrs. Warlters were to go on with his, Defendant's, instructions till the same were contradicted. On the 24th of January the Defendant called upon the Plaintiffs, and told them they were to go on with the distress, and that he would give them a further guaranty. On the 25th of January the Defendant called upon Messrs. Warlters, and stated he would write to them that evening or the following morning; and that the goods were not to be removed till then. Messrs. Warlters then advertised the goods for sale, on Friday the 27th of January. On the 28th of January the Defendant wrote to the Plaintiffs," As the goods are not yet sold, I must request you to consider my letter to you of the 20th instant, containing an undertaking on the part of Mrs. Osborne to indemnify you for selling them, as revoked. I must leave you to exercise your own discretion as to selling them or not; but if you wish for any other indemnity or guaranty, I will with pleasure apply to Mrs. Osborne for her sanction." The case then set out a voluminous correspondence, from which it appeared that the ten claimants proceeded with their actions against Warlters and Co.: the Defendant refused to give any indemnity, or any positive instructions as to defending the actions or selling the goods and ultimately, judgment having been given for the claimant in one action, the others were all compromised, Warlters and Co. restoring the goods and paying the claimants' taxed costs. Warlters and Co. then sued the Plaintiffs for the amount they had paid in those actions, and for their own charges for distraining, and recovered against the Plaintiffs 1647. 9s.: the Plaintiff's costs of defending that action were 217. 6d. : making in the whole 1857.9s. 6d. The Court was to be at liberty to draw any inferences of fact which the jury, under the circumstances, might have drawn ; and the parties agreed to be concluded by the finding of the Court upon the whole matter: and the question for the opinion of the Court was, whether, under the circumstances, the Defendant was liable or not, and, if he was, to what amount; and the verdict and judgment was to be entered accordingly. The case was argued during the sittings in Banc after Hilary term, by Wightman, for the Plaintiffs, who contended that the Defendant, by his letter of the 14th of January, and the specific orders given on the 23d, 24th, and 25th, had made himself responsible to the Plaintiffs; and, as his warrant of distress was addressed to the Plaintiffs or their agent, the striking out the name Toplis, and inserting that of Warlters, was immaterial: at all events, it was sanctioned by the order given to Warlters and Co. on the 23d of January to go on with the distress. W. H. Watson, for the Defendant, argued that the indemnity given by the Defendant extended only to legal acts of the bailiff; for a wrong-doer cannot claim an indemnity: that it was binding on Mrs. Osborne and not on the Defendant; or, if binding on the Defendant, that it was an indemnity by Brooks, Grane, and 1839. TOPLIS บ. GRANE. 1839. TOPLIS v. GRANE. Co., and not by the Defendant alone; Burrell v. Jones (a): also that, if it turned out to be an executed contract when the declaration alleged it to be executory, the variance was fatal. Com. Dig. Action on the Case on Assumpsit, F. 6. The warrant of the 14th of January contained no specific authority, and, therefore, if the goods were not distrainable, there was no indemnity, and the bailiff, not the Defendant, must be liable. In Adamson v. Jarvis (b) there was a specific authority given by the defendant to the auctioneer to sell the goods in question: so in Humphreys v. Pratt (c) the defendant, who had desired certain cows to be taken in execution, was held responsible to the sheriff because he had given a specific authority, and for his own benefit. The Defendant here, had given no express indemnity; and though, where the facts warrant it, an indemnity may be implied from facts, Betts v. Gibbins (d), yet in Farebrother v. Ansley (e) it was held that there is no implied promise on the part of a sheriff to indemnify an auctioneer who sells goods under a fi. fa., when employed to do so by the sheriff's officer to whom the warrant is directed, and the Plaintiff's attorney in the original cause; although the sheriff certifies to the excise office that he himself has seized and sold the goods. Wilson v. Milner (g) confirms the same principle. Here, it was impossible to imply from the facts an intention to give an indemnity, for the Defendant was not a principal, but merely attorney or agent for Mrs. Osborne. And an attorney is not liable as principal, unless he explicitly undertakes such a liability; Robins v. Bridge (h), Hartop v. Juckes. (i) (a) 3 B. & Ald. 47. (e) 1 Campb. 343. At all events, the Defendant was not responsible for the employment of Warlters and Co. There was no authority for erasing the name of Toplis and inserting another; nor, after the erasure, any evidence that the name of Toplis had ever been there. In Housin v. Barrow (a), the sheriff directed a warrant to one Moore, and all his other officers, to arrest the Defendant, and Moore having afterwards inserted the name of Cook, it was held, that the warrant was illegal, and that the arrest by Cook was consequently void: and the same principle was acted on in Burslem v. Fern. (b) The rest of the argument turned on various questions of fact raised by the special case. Wightman, in reply. Where the authority is illegal, both parties knowing it to be illegal, no indemnity can arise; Shackell v. Rosier (c); but where a defendant directs a party to take certain goods which he thinks himself authorised to take, he is bound to indemnify his own agent; Adamson v. Jarvis; Betts v. Gibbins. Cur. adv. vult. TINDAL C. J. The declaration in this case consisted of a special count upon a promise of indemnity, alleged to be made by the Defendant to the Plaintiffs, and of the common indebitatus counts, for work and labour, for money paid, and for money due upon an account stated. To the whole of which declaration the Defendant pleaded non assumpsit, and to different parts of the declaration ten other pleas. As it will be necessary to consider separately the issue raised upon each of these pleas, it will be most convenient to take them in their order, and to apply the facts found in the special case separately to each plea. 1839. TOPLIS v. GRANE. 1839. TOPLIS V. GRANE. The special count states, that "in consideration that the Plaintiffs at the request of the Defendant would by themselves or their agents seize and distrain certain goods and chattels on certain premises, for the recovery of certain arrears of rent alleged to be due to Frances Osborne, he, the Defendant, undertook to indemnify and save harmless the Plaintiffs from all loss, damage, costs, and charges, which should or might arise, or happen to, or be incurred by them, for or by reason of such seizure and distress of the said goods and chattels, or any of them." The plea of non assumpsit, so far as it relates to this special count, puts in issue the promise to indemnify therein alleged; and consequently the first, and indeed the principal question raised upon the record, is, whether the promise to indemnify, as laid in the declaration, is supported or not by the evidence. And we are of opinion, that upon such evidence given at the trial of this action, a jury would have inferred, and would have been justified in inferring, the promise to indemnify as laid in the declaration. It is quite unnecessary to lay it down as a general rule of law, that the broker who enters under an ordinary warrant of distress, and takes goods upon the premises that are privileged by law from distress, can look for indemnity from his employer. In most cases, the broker has a better opportunity of informing himself, as to any exemption from the liability to distress which may belong to the goods found upon the premises, than the landlord or his agent can possibly have. The landlord and the agent, indeed, have frequently no opportunity whatever. To hold, therefore, as a general proposition, that the law gives, in all cases, an indemnity to the broker, would have the effect, in many, of throwing the consequences of his own wrongful act or want of caution from himself upon his employer; |