E. T. 1846.
Queen's Bench.

May 2.

DANIEL CONSIDINE

V.

JAMES CONSIDINE.*

A, in 1833, ASSUMPSIT, tried before BRADY, C. B., at the Summer Assizes of being indebted to B for rent, 1845, for the county of Clare. B distrained, whereupon C

pay the rent in

deliver the

and B recover

The first count of the declaration stated, that the defendant was became surety tenant to one Cornelius O'Brien, of certain premises therein menthat A would tioned, at the yearly rent of £192, and that a sum of £110 became December fol- due for rent on the 25th day of March 1833, in consequence of lowing, or re- which Cornelius O'Brien had distrained the defendant's goods and goods to B. A chattels and impounded them; that O'Brien then proposed to abandon did not do so; the distress, if plaintiff would become security that the rent should ed judgment be paid or the goods returned by a certain day; that defendant against C on foot of this gua- applied to plaintiff to become such security, and undertook to rantee, and indemnify him; that relying on this undertaking, plaintiff became compelled C to pay the debt security to O'Brien to have the rent paid by the defendant, or the Held, that to goods delivered up before the 10th of October then ensuing, that in an action by C consequence of this the distress was abandoned; that defendant did against A for a breach of this not pay the rent or deliver up the goods at the time specified; that special agree O'Brien in consequence brought an action against the plantiff in nity, and also Easter Term 1835, and recovered a judgment against him; that for money paid to his use, A plaintiff was, in order to avoid further proceedings against him, could not plead obliged to undertake and promise to pay said judgment by instalments; that he has since paid the same, and that the last instalment the payments was paid on the 29th of July 1844, and that the defendant neglected judgment re- to indemnify him.

by instalments.

ment of indem

the Statute of

Limitations,

on foot of the

covered by B

having all been made

within six years before

The second count was for not indemnifying plaintiff against the amount of a promissory note given by plaintiff to O'Brien for defendant's accommodation; and the declaration contained also the the commence money counts. The defendant pleaded the general issue, the Statute action. Held of Limitations and three pleas of set-off, and the plaintiff replied to also, that C's the pleas of set-off the Statute of Limitations.

ment of the

right to sue on the contract to indemnify was not extin

On the trial the plaintiff proved the facts of the defendant's tenancy to O'Brien, of the rent being in arrear in 1833, of the distress and guished by the abandonment of it on the plaintiff becoming security, and of his becomjudgment recovered ing such security at defendant's request, and on his promise of indemagainst him nifying plaintiff. A letter of the defendant's was also given in evidence by B.

Coram BLACKBURNE, C. J., and CRAMPTON, J.

dated 11th of May 1835, addressed to James Flanagan, his trustee, E. T. 1846. in these words :

"Smithstown, 11th of May 1835.

I hope Caherfinnick will produce sufficient to enable you to pay "Daniel Considine £20 a-year towards the sum of £110, with "interest and costs, which he paid to O'Brien on my account: and I 'hereby authorise you to pay same until said sum with interest and "costs shall be discharged

The proceedings in the action brought by O'Brien against the plaintiff were also proved, and the agreement to pay the amount recovered by that judgment by instalments, and the payment of the last instalment in 1844, and thereupon the plaintiff closed his case.

Counsel for the defendant then called on the learned Judge for a nonsuit, on the ground that the plaintiff had not shown any cause of action against the defendant within six years next before the commencement of this action, the payments being made on foot of the judgment, not in pursuance of the original contract; and the learned Judge being of opinion that plaintiff's right of action first accrued after the recovering the judgment against him, and not after the payment of the last instalment, directed a nonsuit, reserving liberty for the plaintiff to move to have it set aside and turned into a verdict for him for £110, in case the Court above should be of opinion he should not have been nonsuited on the ground aforesaid. A rule nisi having been obtained to set this nonsuit aside, cause was now shown by

Freeman and J. D. Fitzgerald.

This action was brought on the original guarantee, and the payments that were made were on foot of the judgment recovered against plaintiff in 1835, and could not operate to keep that original contract out of the Statute of Limitations. Further, there was no evidence of that contract, and if there was, that debt was extinguished by the judgment: King v. Hoare (a); Lewis v. Jones (b). The Statute of Limitations runs from the breach of the contract, and giving time to a principal discharges the surety: Howell v. Jones (c); Short v. McCarthy (d); Boultbee v. Stubbs (e); Holl v. Hadley (f); Howell v. Young (g). Where a right of action has once accrued, and the

Queen's Bench.

CONSIDINE

บ.

CONSIDINE.

(g) 5 B. & Cr. 259.

E. T. 1846. statute has begun to run, there being then a capacity of suing and Queen's Bench. being sued, the statute continues to run: Rhodes v. Smethurst (a); CONSIDINE Battley v. Faulkner (b); Baker v. Garrett (c); in that case Best, C.J., observes:-"If a man becomes surety for a debtor, the creditor, in

V. CONSIDINE.

case the debtor fails, may recover the debt against the surety, but "not the costs of a fruitless suit against the debtor, unless he gave "notice of his intention to sue."

J. J. Murphy, with Sir Colman O'Loghlen, for the plaintiff. The promise here was to indemnify the plaintiff; and if a person lay out money for another in defending an action, he is entitled to recover it in an action for money paid: Tappin v. Broster (d); Exall v. Partridge (e). We rely on the first count of the declaration and the money counts. Supposing the judgment recovered be the one of 1835, we could not sue the defendant until we showed a damnification by having paid the amount of that judgment, therefore we are not barred by the Statute of Limitations: Huntley v. Sanderson (f). It only begins to run after such a payment: Collinge v. Heywood (g). The debt could not be extinguished by what passed between O'Brien and the plaintiff: Taylor v. Higgins (h); Maxwell v. Jameson (i). The deed of a surety does not extinguish the simple contract debt of a principal: White v. Cuyler (k); nor can a surety call on his principal to pay, until he himself have paid and been damnified by the payment: Taylor v. Mills (l). Here there has been no actual payment of the money by the judgment; a judgment is not considered payment of a debt: Rush v. Purcell (m); Drake v. Mitchell (n). [CRAMPTON, J. We do not consider a security as payment.]-If the Statute of Limitations have begun to run, we must maintain the action even on the money counts; for it did not so begin to run until we paid the amount of the judgment.

J. D. Fitzgerald, in reply.

The gist of an action of assumpsit for violation of a special contract is the breach of such contract, and not any resulting or collateral damage thereby occasioned. The statute runs from the

v. CONSIDINE.

time that contract is broken. The judgment can be no evidence of E. T. 1846. a contract between us and O'Brien. [CRAMPTON, J. The plaintiff Queen's Bench. is only a surety, and cannot complain until he be damnified. Suppose CONSIDINE he had given a warrant of attorney to pay this money to O'Brien, would it be stronger?]-If he fail in paying, judgment is entered on the warrant; then he is damnified by the judgment, but the consideration of a special contract must be proved as laid. Here we have on the pleadings an entire contract, which was broken the moment an action was commenced, in which judgment was obtained: Carr v. Roberts (a); establishing that a judgment obtained against a guaranteed party is a sufficient breach of the contract to indemnify, and that the party so damnified may recover the full amount of the judgment, though but a small sum be paid.

BLACKBURNE, C. J.

The defendant was tenant to Cornelius O'Brien, and in the year 1833, his rent being in arrear, O'Brien distrained his property for this arrear; the plaintiff became his surety, binding himself to the payment of the rent on the 10th of December following, or in default thereof, that the defendant would re-deliver the goods to O'Brien. The defendant did not pay the rent on that day, or re-deliver the goods that had been so distrained; whereupon O'Brien brought an action against the plaintiff on foot of his guarantee and recovered judgment thereon, and the plaintiff paid the debt by three instalments, each made within six years. The question arises, can the Statute of Limitations be pleaded in bar of the present action for the money so paid by the plaintiff for the use of the defendant, the actual payments made by the plaintiff being all made within six years?

It is said there was a complete cause of action on the 10th of December 1833, because the defendant had, at that time, promised to pay the plaintiff or O'Brien; but he did more, he also promised to indemnify the plaintiff. It is not denied that where there is a general contract of indemnity, the surety is entitled to sue when he has actually paid the money. He cannot institute a suit until he has done so. But it is objected that the plaintiff being sued in 1835 and judgment having been recovered against him, the proceeding on that judgment must be taken as the mode by which the landlord made effectual his remedy against the surety. If there was a contract by the defendant to indemnify the plaintiff, the right to sue on it was not extinguished by the judgment recovered by O'Brien against the

(a) 5 B. & Ad. 78.

E. T. 1846. plaintiff, the debt of the defendant to O'Brien still remained due, and Queen's Bench, the defendant's liability on the implied contract of indemnity was in

CONSIDINE

V.

CONSIDINE.

no respect affected by that proceeding.

But then it is said, that the special contract was not in evidence. Suppose that to be so, it is plain from the entire case that the plaintiff paid the rent at the instance of the defendant; therefore whether the case is rested upon the special count or upon the common counts, the action is maintainable.

CRAMPTON, J.

I am of the same opinion with my Lord Chief Justice. The dealing here is a very common one between landlords and tenants. A distress is taken for rent, then due by the defendant to O'Brien, and the plaintiff comes forward and undertakes either to pay the rent, or that the goods shall be returned. He does that by an instrument in writing; but whether in writing or without writing it makes no difference, for at all events the defendant was bound to pay. We have not before us that written undertaking, but if we take it as stated in the first count of the declaration, it appears to be nothing but a contract of indemnity. The contract is, that in consideration of the plaintiff taking upon him the liability to deal with the creditor, the defendant undertakes that he will restore the goods, or will pay the money or indemnify the plaintiff. That is not a contract to pay the plaintiff, but a contract to pay O'Brien, and so far as the plaintiff is concerned it is nothing but a contract to indemnify the plaintiff. That being so, there could be no breach until the plaintiff had suffered, and he did not suffer until the judgment in 1835. The case of Carr v. Roberts is distinguishable from this case; that was an action of covenant, and if the covenant was broken, the plaintiff was entitled to recover for that breach; but here it is an action of assumpsit, and further this is the case of principal and surety, and until the surety was compelled to pay, he could not say he was damnified. The judgment was no damnification, it was a mere change of security.

Order absolute with costs.