Page:Harvard Law Review Volume 12.djvu/205

185 CONTRIBUTION BETWEEN PERSONS. 18$ nothing inconsistent with the supposition that the tobacco was lost to the owners by a fraud practiced upon the inspectors or by their mistake." " The case seems to me to resolve itself into these propositions. When parties are equally bound to bear a burthen, and are in aequali jure, that is, liable from the same circumstances existing as to both, con- tribution is due of right, in equity ; that this general proposition is liable to one exception, namely, that the party who would otherwise be entitled to such contribution, forfeits such right if the joint liability arose from an act malum in se, a fraud or voluntary tort, in which he participated ; that when it is shown that the parties were originally equally bound, and stood in aequali jure, the party who has paid all, is entitled of course to contribution, unless it be shown on the other side that his right has been forfeited as aforesaid, by his own wrongful act. No such fact is alleged or proved in this case."^ In Wooley v. Batte,^ one of two partners owning a stage-coach sustained a recovery by a passenger who was injured by the neg- ligence of the coachman. Upon suit against his partner for con- tribution the court held him entitled to recover, and refused to apply Merryweather v. Nixan. In Pearson v. Skelton,^ the parties were jointly interested in a stage-coach. By the negligence of the driver a person was in- jured, and a recovery had against the plaintiff, who thereupon sued the defendant for contribution. One defence attempted to be in- terposed was that contribution could not be had because the lia- bility grew out of a tort, but the court held that this ground was not tenable. In Horbach v. Elder,* several persons were engaged as co-part- ners in operating a stage line. By the negligence of a driver a passenger was injured, and he sued and recovered from one of the co-partners, who thereupon sued the others, and was held entitled to recover contribution from them. 1 Five judges were upon the bench at the time this case was decided, and four de- livered opinions, two being in favor of and two against contribution. The reporter states that Fleming, P., the fifth judge, was absent during the period of the cases in I Randolph, and as the lower court had refused contribution the result would seem to have been a denial of the right by divided court, but the reporter also states in his syl- labus that contribution was allowed. Possibly the explanation of this apparent anom- aly is that Fleming, P., did actually join in the decision of this particular case, and held with Green, J., that contribution should be allowed. Or, as is more likely, at least three of the judges agreed upon the syllabus, although Judge Brooke thought the case one of " malversation " or wilful wrong, and, therefore, not a case for contribution. ^ 2 C. & P. 417 (1826). 8 I M. & W. 504 (1836).
 * 18 Pa. 33(1851).