Page:Harvard Law Review Volume 12.djvu/201

181 CONTRIBUTION BETWEEN PERSONS. l8l The ram was not restrained, as he should have been, and this fact was known to both parties. The ram escaped and did an injury to a woman, for which recovery was had and paid by plaintiff and defendant, the larger share having been borne by plaintiff. In this attitude of the case plaintiff sued defendant for indemnity or con- tribution ; but this was denied, on the ground evidently that the failure to restrain an animal known to be vicious was a wilful and intentional wrong. In Atkins v. Johnson,^ a journalist (the plaintiff) had published a libellous article upon the faith of a contract with the writer (de- fendant) to indemnify him. There was a recovery against the journalist for the libel, whereupon he sought to recover over in- demnity upon his contract or contribution, but the court denied the right to either; Pierpont, C. J., saying: — " In this case, these parties in the outset conspired to do a wrong to one of their neighbors, by publishing a libel upon his character. The publication of a libel is an illegal act upon its face. This, both parties are presumed to have known," In Wehle v. Haviland,^ contribution was denied as between per- sons who had made a wrongful joint levy of an attachment against certain goods. This case is in conflict with the weight of respec- table authority, and is unsound. But it proceeds on the theory that the levy was an intentional wrong, and even if sound, the case upon its facts is not authority for the denial of contribution among persons jointly liable for mere unintentional negligence. In Boyd v. Gill,^ Wallace, J., said that there could be no contri- bution between trustees who had fraudulently misappropriated the trust funds. In Davis v. Gilhaus,* plaintiff and defendant had been in busi- ness as partners. Defendant was also county treasurer. He used the county funds in the business with the knowledge of plaintiff. Upon dissolution plaintiff was compelled to reimburse the county in full, whereupon he sought contribution, which was denied, on the ground that the facts constituted a joint embezzlement of the public money; and Johnson^ J., said, "That each of these partners were equally guilty in the eye of the law for embezzling the public money is clear." 1 43 Vt. 78 (1870). 2 42 How. Pr. 399 (N. Y. 1872). « 19 Fed. 145 {1883). * 44 Ohio St. 69 (188$).