Page:Harvard Law Review Volume 12.djvu/211

191 CONTRIBUTION BETWEEN PERSONS. I9I fective and was negligently used by the stevedore. The family of the workman sued the company and the stevedore jointly, and recovered a judgment which was paid in full by the company. The case as it came to the House of Lords was an action by the company against the stevedore to recover the moiety or one-half of the judgment. Held, affirming the Inner House, that the steve- dore was liable. Lord Herschell, L. C, said : — right to contribution in the case of a delict proper when the liability has arisen from a conscious and therefore moral wrong, nor even whether in every case of quasi-delict a delinquent may obtain relief against his co- delinquent, though I see, as at present advised, no reason to differ from the opinion which I gather my noble and learned friend Lord Watson holds, that such a right may exist. In circumstances such as those with which your Lordships have to deal, I cannot but think that equity and justice are in favor of the conclusion arrived at by the Inner House, and there seems to be no authority compelling a contrary decision. It was urged that the person seeking relief might be the more culpable of the delinquents ; but it is just as likely that he should be the less culpable. In selecting from which of his co-debtors he will obtain payment, the creditor would be guided usually by considerations wholly independent of the relative culpability of those from whom he may recover it. " Much reliance was placed by the learned counsel for the appellant upon the judgment in the English case of Merryweather v. Nixan, 8 T. R. 186. The reasons to be found in Lord Kenyon's judgment, so far as re- ported, are somewhat meagre, and the statement of the facts of the case is not less so. It is now too late to question that decision in this country ; but when I am asked to hold it to be part of the law of Scotland, I am bound to say that it does not appear to me to be founded on any principle of justice or equity, or even of public policy, which justifies its extension to the jurisprudence of other countries. There has certainly been a tendency to limit its application even in England. In the case of Adarason v. Jar- vis, 4 Bing. 66, Best, C. J., in delivering the judgment of the court, re- ferred to the case of Phillips v. Biggs, Hard. 164, which he said was never decided ; ' but the Court of Chancery seemed to consider the case of two sheriffs of Middlesex, where one had paid the damages in an action for an escape, and sued the other for contribution, as like the case of two joint obligors.' He then proceeded as follows : ' From the inclination of the court in this last case, and from the concluding part of Lord Kenyon's judgment in Merryweather v. Nixan, 8 T. R. 186, and from reason, justice, and sound policy, the rule that wrongdoers cannot have redress or contri- bution against each other is confined to cases where the person seeking ^5
 * * It is not necessary in this appeal to decide whether there can be any