Page:Harvard Law Review Volume 12.djvu/200

l80 HARVARD LAW REVIEW. sound, salutary, and indeed necessary rule of law. Properly under- stood, it is confined to those cases wherein the joint wrong was con- fessedly intentional or immoral, or — as a crime or misdemeanor or those borderland offences, like slander — was of such a nature as to raise the presumption of wilfulness and malice. The principal American cases wherein the rule of Merryweather V. Nixan has been applied are the following: — In Peck V. EUis,^ contribution was denied in equity to one of two joint wrongdoers who had fraudulently and without right cut and carried off timber and logs. In Arnold v. Clifford,^ Judge Story held that neither contribu- tion nor indemnity under an express contract would be enforced by the courts for the consequences of the joint publication of a libel. In Miller v. Fenton,^ contribution was denied among officers of a bank who had jointly and fraudulently abstracted the funds. In Hunt V. Lane,* contribution between joint tort-feasors or wrongdoers was denied, and the rule of Merryweather v. Nixan applied, because the complaint seeking contribution did not show what the nature of the tort was, and the court, therefore, assumed that it was of such a class as would fall within the rule. In Rhea v. White,^ complainant sought and was properly denied contribution for the amount of a judgment which he had paid. The judgment was in an action of trover for the joint conversion of certain slaves, and the complainant did not allege in his bill, or prove, that the conversion was made under mistake or in ignorance of the want of title. In Anderson v. Saylors,^ contribution was denied, the judgment for which it was sought being in trover, but the nature of the act not appearing from the report of the case. In Andrews v. Murray,' the opinion of the court stated that one trustee could not have contribution against another for their joint negligence which had resulted in loss ; but the decision was rested upon the fact, found by the court to exist in the case, that the claim paid by plaintiff was not one for which all the trustees were liable. The remark of the court was, therefore, obiter. In Spalding v. Oakes,® the parties had kept upon defendant's farm for their joint use a ram known to both of them to be vicious. 1 2 Johns. Ch. 131 (N. Y., 1816). 2 2 Sumner (U. S.), 238 (1835). 8 II Paige, 18 (N. Y., 1844). * 9 Ind. 248 (1857). 6 3 Head, 121 (Tenn., 1859). « 3 Head, 551 (Tenn., 1859). 7 33 Barb. 354 (N. Y., 1861). » 42 Vt. 343 (1869).