are cases relating to rights, which were not affected; those referred to by Mr. Hawkins were cases relating to procedure. Enactments as to costs have been held by all the Courts to apply to actions commenced before the passing of the Acts in which they are contained. In Cox v. Thomason (1) it was held that a rule of Court relating to the taxation of costs, *which was general in its terms, applied to all taxations after the period when it came into operation, whether the action was commenced before or not. Mr. Chambers says that the enactment now in question takes away a right from the plaintiff. I do not agree with him. The right of the suitor is to bring an action and have it conducted according to the practice of the Court. Pending the action the procedure may be varied, but his right is to have his action conducted according to the existing course of procedure, whatever that may be.

Rule discharged.

ROBERT GRAVES IBBETT v. DE LA SALLE.

(6 H. & N. 233-238; S. C. 30 L. J. Ex. 44.)

A landlord signed a warrant of distress in the following form: "I hereby authorise R. I., or his agent, as my agent, to seize and distrain the goods on the premises, now in the possession of M. G., for 91., being the amount of rent due to me; and for your so doing this shall be your sufficient warrant, authority and indemnification against all costs and charges in respect to any law expenses, action or actions that may arise, as well as any other and all charges or expenses which you or your agent may be at or brought against you or your agent on this account." W. H., the servant of Ř. I., having distrained, an action of trover was brought against him by the tenant for the conversion of certain goods, some of which were alleged not to have been in the inventory, in which action the plaintiff was nonsuited: Held, that, assuming that W. H. had done nothing wrong, the indemnity extended to the costs of defending the action brought against him. THIS was an action in the Mayor's Court. Declaration: that whereas, heretofore, to wit, on &c., at the parish &c., and within the jurisdiction of this Court, in consideration that the plaintiff, at the request of the defendant, would by himself or his agent seize and distrain the goods then on the premises of one Galvin, situate &c., for the sum of 91., being the arrears of rent alleged by the defendant to be due to him for the same at Christmas Day then last, the defendant then and there, within the jurisdiction, promised the plaintiff to indemnify him against all costs and charges in respect of any law expenses, action or actions, that might arise or be brought against the plaintiff or his agent, by reason or in consequence of the said distress; and against all *other charges and expenses, action or actions, that might arise or be brought against the plaintiff or his agent, by reason or in consequence of the said distress; and against all other charges (1) 2 Cr. & J. 498.

R.R.-VOL. CXXIII.

81

IBBETT

v.

and expenses which the plaintiff or his agent might be at on the DE LA SALLE. Said account. Averment that the plaintiff did, by W. H. Ibbett, his agent, seize and distrain, &c.; that in consequence of the distress an action was then and there, and within the jurisdiction, brought by Galvin against W. H. Ibbett, as and being the agent of the plaintiff; and the plaintiff thereby, then and there and within the jurisdiction, incurred and became liable to pay certain costs, to wit 100l., and was and is damnified to the amount thereof; whereof the defendant, then and there and within the jurisdiction, had notice; yet the defendant did not nor would indemnify the plaintiff against the said costs, charges and law expenses, and neglected and refused so to do, &c. Plea. Non assumpsit.

[ *235 ]

At the trial, it appeared that the defendant being the owner of a house, No. 33, Jewin Street, gave to the plaintiff a warrant to distrain, which was as follows:

"Warrant to Distrain.

"Know all men by these presents. I do hereby authorize R. G. Ibbett, or his agent, as my agent, to seize and distrain the goods and chattels on the premises, now in the possession of Mr. Galvin, situate &c., for the sum of 91. 5s., being the amount of rent due to me for the same on Christmas Day last; and for your so doing this shall be your sufficient warrant, authority and indemnification against all costs and charges in respect to any law expenses, action or actions that may arise, as well as any other and all charges or expenses which you or your agent may be at, or brought against you or your agent on this account; nor do I hold you responsible for any goods or chattels clandestinely *removed from the said premises; and I hereby agree to allow you five per cent. on the amount levied

for.

"As witness my hand this 5th day of March, 1859.

"J. T. DE LA SALLE."

The distress was made by W. H. Ibbett, the son of the plaintiff, and the goods were subsequently appraised and sold. An action of trover was commenced by Galvin against W. H. Ibbett for the alleged conversion of certain goods; and it appeared from the attorney's letter that it was charged against him that he had disposed of certain goods beyond those in the inventory; that he had not sold some of those in the inventory, and had not returned to Galvin such goods as remained unsold. At the trial of that action Galvin failed to make out his case and was nonsuited. The bill of costs for defending this action. amounted to 9l. 16s. 8d. This the plaintiff had paid, but he

had not received the amount from Galvin. Upon these facts the learned Judge who tried the cause, being of opinion that the indemnity did not extend to these costs, nonsuited the plaintiff, giving him leave to move to enter a verdict.

Joyce having obtained a rule to set aside the nonsuit and for a new trial, upon the ground that the evidence given and facts admitted disclosed a good cause of action,

Philbrick now showed cause:

The action by Galvin against W. H. Ibbett was for selling goods other than those comprised in the inventory. Now, although it may be true that the defendant is bound to indemnify the plaintiff against all actions brought on account of any act done in the conduct of the distress, the indemnity does not apply to a case where the action is brought for alleged illegal acts done by the broker's man distinct from the distress. In Draper v. Thompson (1), which was an action on a similar indemnity, TINDAL, Ch. J., said: "It never could be intended *that the defendant was to indemnify the plaintiff against the acts of his own servants, and I am of opinion that it (the indemnity) only applies to cases where a distress was illegal, because the landlord had no right to put in such distress." The case resembles in principle Dudley v. Folliot (2), when it was held that a covenant in a conveyance of lands that the grantee might peaceably enjoy without interruption of the grantor and his heirs, or of any other person, does not extend to the acts of wrong-doers, but only of persons claiming by a legal title. The indemnity extends to all acts complained of, as the wrongful acts of the landlord alone or of the landlord and broker. It could not be contended that it was an indemnity to the broker against an unfounded charge of assault. It was only intended to extend to those acts which the broker was bonâ fide entitled to do in exercise of the authority to distrain.

(POLLOCK, C. B.: The effect of the indemnity is, "If you take my place in doing this act I will indemnify you against all costs you may incur, provided that what you do is not illegal on your part." Here the broker is charged with doing something which, in point of fact, he did not do. As to the case of a charge of assault, that is simply a personal charge and wholly beside the distress, and therefore quite different from a charge of doing something wrong with respect to the distress.) Secondly, the plaintiff was not bound to pay the costs of the action of Galvin v. W. H. Ibbett, and therefore he was not legally damnified.

(1) 4 Car. & P. 84.

(2) 1 R. R. 772 (3 T. R. 584).

iBBETT

t.

DE LA SALLE.

[ *236 ]

Kenealy, in support of the rule:

Toplis v. Grane (1) is an authority that when an act has been done by the plaintiff under the express directions of the defendant, which occasions an injury to the rights of third persons, if such an act is not apparently illegal in itself, but is done honestly and bonâ fide in compliance with the defendant's *directions, he shall be bound to indemnify the plaintiff against the consequences thereof. The plaintiff was therefore bound to indemnify his agent, W. H. Ibbett. In Toplis v. Grane the act of the broker was a wrongful act. Here the plaintiff's agent did no wrong. All that can be said is that, while executing the warrant of distress properly, he was charged with having done wrong.

POLLOCK, C. B.:

We are all of opinion that there must be a new trial; and we think that we ought not to send down the case for that purpose without some direction as to the law applicable to the facts. The action appears to have been brought against the broker merely because he was the instrument by means of which the landlord made the distress. It does not appear that he had done anything wrong. The landlord intended to say, "I appoint you as my agent; if you are put to any costs in consequence of acting for me, I agree to indemnify you." According to all that we know of it, this was a vexatious and groundless action against the broker, and therefore within the indemnity. The indemnity does not extend to misconduct on the part of the broker, such as an assault, or seizing goods which he has no right to take, but merely to matters properly arising out of the distress. BRAMWELL, B.:

The case ought to go down to a new trial if we see that the Judge was wrong in nonsuiting the plaintiff. I have some difficulty in construing this indemnity. I think Mr. Philbrick's argument is intelligible and clear; and I am by no means sure that it is not well founded. It may be that the defendant says, "I give you authority to distrain; and, so far as that authority extends, I agree to indemnify you." It may mean, "If it should turn out that I have no title to distrain, I indemnify you.' *If the broker had done wrong, we should probably hold him not entitled to recover upon this indemnity. The indemnity may extend to rightful acts done by the broker in the course of his duty, but for which he may be subjected to an action by the tenant. Again, the construction may be, "I will not be responsible for what is charged as your wrongful act; but I indemnify

(1) 50 R. R. 814 (5 Bing. N. C. 636).

you against what is said to be my wrongful act." The words are, "And for so doing, this shall be your sufficient warrant, authority and indemnification." The authority and indemnification are thus coupled together. I cannot say that I have a a clear opinion upon the construction of this document. CHANNELL, B.:

I think that there ought to be a new trial. The nonsuit proceeded upon the ground that the claim of the plaintiff to be indemnified was not made out. I agree with the view of the Court of Common Pleas in Toplis v. Grane (1). A broker employed to make a distress may refuse to do so if he think fit. He may say, "I know that the tenant is so obstinate that I will not distrain unless I am indemnified against the consequences of all proceedings that may be taken against me." Here the distress appears to have been regular; and, that being. so, the broker has a right to be indemnified. If he had been guilty of any misconduct, he could not have maintained an action to recover damages the result of his own misconduct or default.

WILDE, B.:

Having read the indemnity, I think it was intended to apply. to all actions to which the broker might be subjected, except for the actual misconduct or default of himself or his servants.

Rule absolute.

LAVERY v. TURLEY.

(6 H. & N. 239-240; S. C. 30 L. J. Ex. 49.)

To an action for goods sold the defendant pleaded, that he was possessed of a public-house, and it was agreed that, in consideration that the defendant would give up possession of the same, the plaintiff would pay the defendant 1007., and discharge the defendant from the debt; that the plaintiff paid the 1007., and the defendant quitted the house. The agreement was not in writing: Held, that, having been executed, it was receivable as evidence to prove the plea.

Semble, that the plea, though pleaded as an equitable defence, was a good plea at common law, by way of accord and satisfaction.

DEBT, for goods sold &c.

Plea (inter alia), upon equitable grounds. That after the accruing of the causes of action the defendant was in possession of a public-house and stock in trade, and thereupon it was agreed that in consideration that the defendant, at the request of the plaintiff, would quit the said public-house and premises, and deliver up possession of the same and the stock in trade to the plaintiff, the plaintiff would pay to the defendant the sum of 100l. and give up and discharge and exonerate the defendant from all debts and claims and causes of action in respect of the (1) 50 R. R. 814 (5 Bing. N. C. 636.)