Page:Harvard Law Review Volume 12.djvu/198

178 178 HARVARD LAW REVIEW. The general rule has been recently thus stated : — " Where two or more persons are jointly, or jointly and severally, bound to pay a sum of money, and one or more of them are compelled to pay the whole, or more than his or their share, those paying may recover from those not paying the aliquot proportion which they ought to pay." ^ Green, J., in the early Virginia case of Thweatt v. Jones,^ has succinctly stated the reason and the limitations of the decision in Merryweather v. Nixan as follows : — " The reason why the law refuses its aid to enforce contribution amongst wrongdoers is, that they may be intimidated from committing the wrong, by the danger of each being made responsible for all the con- sequences ; a reason which does not apply to torts or injuries arising from mistakes or accidents, or involuntary omissions in the discharge of official duties." In considering the facts in Merryweather v. Nixan, and in apply- ing that decision, it is important to bear in mind that the meaning of the word "tort" at the time of the decision in 1799 was limited and narrow. None of the early writers, such as Bacon, accurately defined torts, but the actions which they treat as torts are prac- tically all actions such as batteries, slanders, etc., which were, of course, wilful or intentional wrongs. At that time the word " tort" had not come to be applied to the vast number of quasi delicts now known and classified as actions sounding in tort and arising out of mere negligence or unintentional injury. The classi- fication of such actions as technical torts is of comparatively recent date. It is, therefore, vital to a correct understanding of the decision, that this limited meaning of the word " tort " — /. e.., a wilful or intentional wrong — be remembered. The vagueness of the term " tort," even at the present time, was commented upon by Lord Halsbury in a recent important authority on contribu- tion, — Palmer v. Wick & Pulteneytown Steam Shipping Company.^ Lord Halsbury there said : — " The difficulty which has arisen is, I think, one of words. The word 'tort' in English law is not always used with strict logical precision. The same act may sometimes be treated as a breach of contract and some- times as a tort. But ' tort ' in its strictest meaning, as it seems to me 1 7 Am. & Eng. Enc. of Law (2d ed), 326, title " Contribution and Exoneration." 2 I Randolph, 328 (Va., 1823). » l. R. (1894) H. L. (Sc.) A. C. 318.