Page:Harvard Law Review Volume 12.djvu/199

CONTRIBUTION BETWEEN PERSONS, 1 79 ought to exclude the right of contribution which would imply a presumed contract to subscribe towards the commission of a wrong. It seems to me, therefore, that the distinction between classes of torts or quasi delicts and delicts proper is reasonable and just, though I doubt whether in dealing with an English case one would be at liberty to adopt such a distinction." With the true meaning of " tort " in mind we turn then to the facts in Merryweather v. Nixan, where a judgment had been re- covered against the plaintiff and defendant jointly in an action for injury to a reversionary interest in a mill and for trover for machin- ery. The whole damages were levied against the plaintiff, who thereupon sued his co-wrongdoer for contribution. The judgment of the court, pronounced by Lord Kenyon, was that there could be no contribution. Although the decision has been sometimes condemned, yet the exception announced by the case had its rise in an enlightened view of the best public policy. The report of the facts in the case is somewhat meagre, but it is clear that the action proceeded on the theory of a malicious and wanton tort and trover. The fact that trover, with plea of not guilty, was the remedy chosen is of itself sufficiently significant and indicates a wilful joint wrong- Upon this theory of the case — and clearly no other theory will explain the subsequent decisions of the English courts comment- ing upon, following, or distinguishing Merryweather v. Nixan — the ethical objections to the decision entirely disappear. To one of two wrongdoers who had maliciously and without color of right injured the reversionary interest in, and had taken the machinery from, the mill, the court said in effect, " As a punishment for the wilful and malicious joint wrong which you have committed, and to intimidate you from again offending, the aid of the machinery of the courts of justice will be denied you when you seek to compel your co-wrongdoer to assume any part of the burden." Unquestionably it would be highly mischievous for the courts to step in and adjust among intentional wrongdoers the damage flow- ing from the wrong. By entertaining such suits the courts would aid intentional wrongdoers in avoiding the consequences of their acts. But limited to the case of intentional wrongdoers, the wis- dom and rough and stern justice of the decision are apparent. Defined within the limits laid down by subsequent English deci- sions, and intended, we think, by Lord Kenyon, the decision, so far from being objectionable even from an ethical point of view, is a