Page:Harvard Law Review Volume 12.djvu/197

CONTRIBUTION BETWEEN PERSONS. 1 77 and in a few words made evident their appreciation of the dividing line. It seems that Battersey, charged with rebellion from the Cinque Ports, was arrested and brought to the inn of the plaintiff by the defendant, with the request to the plaintiff to keep him a day and night, the defendant at the same time promising to indemnify plaintiff. Although the report does not so state in terms, yet it is inferentially quite evident that Battersey was kept by the plaintiff under duress ; in other words, he was under arrest and physical restraint at the inn of the plaintiff. Battersey had sued the plain- tiff for false arrest, and recovered. In an action upon the assump- sit of defendant to save plaintiff harmless it was held that the plaintiff should recover indemnity against the defendant, and Ho- bert. Chief Justice, and Hutton and Winch, answering the con- tention for the defendant that Battersey had been arrested and detained by the inn-keeper without cause, and that the promise to indemnify the inn-keeper was therefore void, said that, — " Be the imprisonment lawful or not lawful, he might not take notice of that : as if I request another man to enter into another man's ground, and in my name to drive out the beasts, and impound them, and promise to save him harmless, this is a good assumpsit, and yet the act is tortious." And by Hutton, J., it was further said that, — " Where the act appears in itself to be unlawful, there it is otherwise, as if I request you to beat another, and promise to save you harmless, this as- sumpsit is not good, for the act appears in itself to be unlawful, but otherwise it is as in our case, when the act stands indifferent." The case of Philips v. Biggs ^ was, it is true, cited in the argu- ment of Merryweather v. Nixan, but an examination of the report discloses that the point was not decided. It is singularly unfortunate, and has led to misunderstanding, that Merryweather v. Nixan should have been continually treated as stating the " general rule." As a matter of fact that case states not the rule, but the exception. The general rule is that among persons jointly liable the law implies an assumpsit either for in- demnity or contribution, and the exception is that no assumpsit, either express or implied, will be enforced among wilful tort-feasors or wrongdoers. 1 Ilardres, 164 (1659).