Page:Harvard Law Review Volume 12.djvu/204

184 1 84 HARVARD LAW REVIEW. testate had discharged. It appeared that Thweatt and Hinton, who were co-inspectors of tobacco, had by a mere mistake or negligence delivered the receipts therefor, and the tobacco itself, to some person other than the owner. Held, that the rule denying contri- bution among joint tort-feasors does not apply to torts or injuries arising from mistakes or accidents, or involuntary omissions in the discharge of official duties. Merry weather v. Nixan was cited and relied upon to defeat con- tribution, but Green, J., denied its application to the facts before the court, and said : — " Contribution is not due by reason of any contract, express or im- plied. But when any burthen ought, from the relation of the parties, or in respect of property held by them, to be equally borne, and each party is in aeguali Jure, contribution is due, unless the claim to contribution has arisen out of some actual fraud, or voluntary wrofig, in which the party claiming contribution has participated. The mere non-perform- ance or violation of a civil obligation is not such a wrong as will condemn a claim to contribution. The act which precludes a party from the right to claim contribution from those who were equally liable to the burthen as himself, must be malum in se, as actual fraud or voluntary wrong." And again he said : — " Courts of law enforce contribution only in cases where a contract be- tween the parties to that effect may be presumed ; but courts of equity indulge in a larger jurisdiction, and admit contribution whenever the par- ties were originally subject, jointly, to the burthen, and are in aequali jure, and where the party claiming the assistance of the court is not pre- cluded, by his own turpitude, from receiving it. In the case at bar, the only default of the inspectors appears to have been the non-delivery of the tobacco to the owners of it. This might happen in various ways, without imputing fraud or voluntary wrong to the inspectors. It might have been delivered, as is stated in the evidence given in one of the suits at law (which is, however, no evidence against the defendants in this suit), in consequence of the notes or receipts having been delivered to a person producing a forged order. It might have been delivered to an improper person by mere mistake, or stolen ; and, in the absence of all proof, although it might have been embezzled by the inspectors, such embezzlement ought not to be presumed. Fraud is odious, and ought to be proved. Nor do I think that this conclusion ought to be aifected by the statement in the bill that the judgments were recovered for a joint malversation in office. That is a loose expression, corrected by the con- text of the bill, and by the records of those judgments, which exhibit