Page:Harvard Law Review Volume 12.djvu/208

1 88 HARVARD LAW REVTEIV. and the question is, does not the law make the moral obligation a legal one?" After commenting upon Merryweather v. Nixan, and other cases, Judge Read answered his query as follows (pages 221, 222) : — " The parties, plaintiff and defendant, are two municipal corporations, jointly bound to keep this bridge in repair. These bodies can act only by their legally constituted agents, their commissioners, who examine the structure and order repair which is done. They erred in judgment, and both were liable for the consequences of that error, and one having paid the whole of the damages is entitled to contribution from the other." In Power v. Hoey,^ directors of a railway company had irregu- larly and improperly accepted promissory notes of one of their number in payment for his shares, and had reported the shares to the company as full paid. Held, that the transaction was not so fraudulent or illegal as to entitle the representative of the debtor to repudiate the debt, and the directors having voluntarily made good to the company the full price of the shares, were held entitled to be indemnified out of the assets of the debtor. In Nickerson v. Wheeler,^ the property of the president of a manufacturing corporation was taken in satisfaction of a decree against him and the other officers, holding them personally liable to a creditor for neglect to file the annual certificates required by law. Held, that the president might have contribution from the other officers, and Devens, J., said : — " It is contended that, as the liability of the plaintiff and defendants to the creditors of the corporation, of which they were officers, arose from their neglect of duty as such officers to file the annual certificate required by the St. of 1862, c. 210, the principle upon which at common law it has been decided that one wrongdoer who has paid the damages re- covered on account of the wrongful act of both is not entitled to contri- bution from the other, applies here, and therefore that the plaintiff cannot maintain this suit. Merryweather v. Nixan, 8 T. R. 186. But although one may have been made liable in tort, he is not necessarily deprived of contribution from another also originally liable, where the foundation of the action is simply negligence on the part of each in carrying on some lawful transaction. Thus, where one of two coach proprietors had been made liable in tort to a party who was injured by the negligence of a ser- vant employed by himself and another, he was entitled to contribution 1 19 W. R. 916 (1871). a 118 Mass. 295 (1875).