Page:Harvard Law Review Volume 12.djvu/202

182 1 82 HARVARD LAW REVIEW. In Boyer v. Bolender/ one of several directors of an insurance company paid off a judgment recovered against the directors jointly for the fraudulent appropriation of the company's money to their own use. Contribution was denied him against his co-directors. It will be seen that in every American case where the rule of Merryweather v. Nixan has been applied the facts show either an intentional tort or an act, as the basis of joint liability, which is malum in se or immoral. No case has been found applying the rule to a joint tort or quasi delict not intentional and not immoral. II. Even though parties are in pari delicto, contribution will be allowed for joint quasi delicts where the wrong or tort was not wilfuly mali- cious, intentional, unlawful, or immoral. As the scope of this paper is limited to the discussion of the rules governing contribution, those cases wherein indemnity has been recovered or denied will not be discussed ; but as they involve collateral and equally important questions, reference to some of the more instructive of them will be found in the foot-note.^ As an instance of the confusion of mind which the text-writers have shown in dealing with this branch of the subjects of contri- bution, we may refer to Webb's Pollock on Torts, page 233, wherein no less an authority than Sir Frederick Pollock stated the rule to be that " a wilful or negligent wrongdoer has no claim to contribu- tion or indemnity ; " but after the word " negligent " he added an original note, " I am not sure that authority covers this," and thus left the subject speculative, as he cited no case in support of his proposition, so far as that proposition related to mere negligence. In Clerk & Lindsell's Torts'^ an admirable discussion will be 1 129 Pa. 324 (1889). > Adamson v. Jarvis, 4 Bing. 66 (1827) ; Betts v. Gibbins, 2 Ad. & El. 57 (1834) ; Lowell z/. Boston & Lowell R. R. Co., 40 Pick. 24 (Mass., 1839); Gower z/. Emery, i8 Me. 79 (1841) ; Jacobs v. Pollard, 10 Cush. 287 (Mass., 1852) ; Moore v. Appleton, 26 Ala. 633 (1855); Chicago V. Robbins, 2 Black, 418 (1862); Chicago v. Robbins, 4 Wall. 657 (1866) ; Gray J/. Boston Gaslight Co., 114 Mass. 149 (1873) J Churchill v. Holt, 127 Mass. 165 (1879), and the same case again reported in 131 Mass. 67 (1881); Old Colony R. R. Co. V. Slavens (Mass., 18S9), 38 Am. &Eng. R. Cas. 382 ; Rochester v. Campbell, 123 N. Y. 405 (1890) ; Gulf, C. & S. F. Ry. Co. v. Galveston, H. & S. A. Ry. Co., 83 Tex. 509 (1892) ; O. S. Nav. Co. v. Compania T. Espaniola, 134 N. Y. 461 (1892) ; Cincinnati, etc. R. Co. V. L. & N. R. Co., 97 Ky. 128 (1795) >' '^^^ Englishman and The Australia (1894), P. 239 (1895), P. 212; District of Columbia v. Washington Gaslight Co., 161 U. S 316 (1896) ; and Wilhelm v. Defiance, 50 N. E. Rep. 18 (Ohio, 1898).
 * 2d ed., 1896, note b, p. 66.