Page:Harvard Law Review Volume 12.djvu/203

183 CONTRIBUTION BETWEEN PERSONS. 1 83 found of the limitations of Merryweather v. Nixan, and it is there said : — " It is sometimes loosely said that there is no contribution between joint tort-feasors, that is to say, that if, on an action being brought for a joint tort, one wrongdoer pays the whole damages recovered, he cannot, whatever the nature of the tort, recover a proportion of the damages from the others. For this wide proposition there is apparently no authority except the head-note to the report of Merryweather v. Nixan in the Term Reports (8 T. R. 186), which head-note does not seem to be borne out by the judgment." Perhaps of all the earlier text-books Broom's Legal Maxims ^ shows the broadest and soundest conception of Merryw^eather v. Nixan. In that work the rule is stated as follows : — " To the above maxim respecting par delictum may also be referred the general rule that an action for contribution cannot be maintained by one of several joint wrongdoers against another, although the one who claims contribution may have been compelled to pay the entire damages recov- ered as compensation for the tortious act. It is, however, expressly laid down that this rule does not extend to cases of indemnity, where one man employs another to do acts not unlawful in themselves for the pur- pose of asserting a right ; and it is also clear, from reason, justice, and sound policy, that this doctrine applies only where the person seeking redress must be presumed to have known that he was doing an unlawful act." In Lingard v. Bromley,^ the Master of the Rolls held that con- tribution would be enforced among assignees in bankruptcy to reimburse a payment by one under an order for a loss occasioned by their joint act. It was said that the loss had been occasioned by " the non-performance of a civil obligation," thus indicating the distinction afterward drawn in the English cases between merely civil neglect, or negligence, and the intentional class of tort for which contribution will not be allowed. In Thweatt v. Jones,^ the complainant filed a bill in chancery asking contribution. Complainant was the administrator of an in- spector of tobacco, while the defendant was the administrator of another inspector of tobacco. There had been previously a judg- ment against the complainant for failure of his intestate to deliver tobacco when legally demanded, which judgment complainant's in- 1 Pages 328, 329. 3 I Ves. & B. 114 (1812). 8 I Randolph, 328 (Va., 1823). 24