Page:Harvard Law Review Volume 12.djvu/207

187 CONTRIBUTION BETWEEN PERSONS. iS/ mon carriers, to whom is committed, and who innocently carry away, property which has been stolen from the owner. . . . The form of action, then, is not the criterion. We must look further. We must look for personal participation, personal culpability, personal knowledge. If we do not find these circumstances, but perceive only a liability in the eye of the law, growing out of a mere relation to the perpetrator of the wrong, the maxim of law that there is no contribution among wrongdoers is not to be applied. Indeed, we think this maxim too much broken in upon at this day to be called with propriety a rule of law, so many are the exceptions to it, as in the cases of master and servant, principal and agent, partners, joint operators, carriers, and the like." In Selz V. Unna,^ parties to a joint wrongful levy upon the goods of Unna had contributed to the payment of a judgment against them, and then sought, under a fraudulent agreement made in the course of one branch of the litigation, to place the vi^hole loss upon Unna, instead of his proportion, which he had already paid. The court declined to disturb the contribution made by the parties themselves, and Mr. Justice Clifford said : — " Equal contribution to discharge a joint liability is not inequitable, even as between wrongdoers, although the law will not, in general, sup- port an action to enforce it where the payments have been unequal. (Merryweather v. Nixan, 8 T. R. i86 ; Bailey v. Bussing, 28 Conn. 455.) Where the liability is joint, equal contribution is just, and it would afford the complainants no ground of relief if it appeared that the arrangement with the marshal was such as is alleged in the bill of complaint. Hav- ing collected three-fourths of the amount of the other defendants, it was quite right that he should, if possible, levy the balance so as to effect equal justice between the parties." In Armstrong County v. Clarion County ,2 a traveller while pass- ing over a bridge between the two counties, plaintiff and defendant, was injured by the breaking down of the bridge due to negligence in its maintenance. The duty of maintaining the bridge rested upon both counties. The traveller sued and recovered (including costs, ^1,597-31) from Armstrong County alone for negligence. Armstrong County paid the judgment, and then brought assumpsit against Clarion County for contribution of its proportion, or one- half the judgment, costs, etc. Read, J., said (pages 219, 220) : — " There can be little doubt that morally Clarion County was bound to pay one-half of the sum recovered from and paid by Armstrong County ; 1 6 Wall. 327 (1867). 2 66 Pa. 218 (1870).