Hatcher, John H.

English

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Volume 47 Issue 2 Article 4 February 1941 Battersey's Case (1623): Some Ups and Downs of the Rule Three Pronounced, Affecting Contributions between Joint Wrongdoers John H. Hatcher West Virginia Supreme Court of Appeals Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Common Law Commons, and the Torts Commons Recommended Citation John H. Hatcher, Battersey's Case (1623): Some Ups and Downs of the Rule Three Pronounced, Affecting Contributions between Joint Wrongdoers, 47 W. Va. L. Rev. (1941). Available at: https://researchrepository.wvu.edu/wvlr/vol47/iss2/4 This Article is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact beau.smith@mail.wvu.edu. BATTERSEY'S CASE (1623)SOME UPS AND DOWNS OF THE RULE THERE PRONOUNCED, AFFECT-ING CONTRIBUTIONS BETWEEN JOINT WRONGDOERS.JonN H. HATmCm*The earliest English cases I have found of actions betweenjoint wrongdoers-are Arundel v. Gardiner," and Battersey's Case,2decided in 1622 and 1623, respectively. Each case permitted therecovery of indemnity. The former declared no abstract principleof law. The latter said indemnity could not be had where thetortious act "appears in itself to be unlawful, but otherwise it is,as in our case, where the act stands indifferent." My attentionhas been drawn to no other such action antedating 1799 (thoughdoubtless there were many), when Merryweather v. Nixan,3 with-out reference to any earlier decision on this subject, is taken tohave held that no contribution whatever could be had betweenjoint tortfeasors. This holding was recognized in Farebrother v.Avsley,4 Wilson v. Milner,5 and other cases of that generation.But, in 1827, Adamson v. Jarvis6 limited hat holding in this man-ner: "from reason, justice and sound policy, the rule that wrong-doers cannot have redress or contribution against each other, isconfined to cases where the person seeking redress must be pre-sumed to have known that he was doing an unlawful act." Thislimitation was followed in Betts v. Gibbons,7 in which Battersey'sCase was referred to, though sub nom. Fletcher v. Harcot, 'ChiefJustice Lord Denman saying, "The case of ferryweather v. Nixanseems to me to have been strained beyond what the decision willbear ... The general rule is that between wrongdoers there isneither indemnity nor contribution; the exception is where the actis not clearly illegal in itself."" And as far as I am advised, thisexception to the general rule has remained the law of England tothis day.' The exception was recognized in the United States, cer-F ormer judge of the Supreme Court of Appeals. Charleston, West Virginia.1 Cro. Jac. 652, 79 Eng. Rep. R. 563 (1622).2 Winch 49, 124 Eng. Rep. R. 41, sub. 'om. Fletcher v. Harcot, Hutton 55,123 Eng. Rep. R. 1097 (1623).a 8 T. R. 186, 101 Eng. Rep. R. 1337 (1799).4 1 Camp. 343, 170 Eng. Rep. R. 979 (1808).G 2 Camp. 452, 170 Eng. Rep. R. 1215 (1810).a 4 Bing. 66, 130 Eng. Rep. R. 693 (1827).72 Ad. & E. 57, 111 ,ng. Rep. R. 22 (1834).8At p. 74. Accord: Pearson v. Shelton, 1 Mv. & W. 504, 150 Eng. Rep. R.533 (1836).0 See PoLLo x, ToRTs (13th ed.) 203.1Hatcher: Battersey's Case (1623): Some Ups and Downs of the Rule Three ProDisseminated by The Research Repository @ WVU, 1941BATTERSEY'S CASEtainly as early as 1800 in the New York case of Allaire v. Oulandl,1Othough no citation of authority or statement of law was made. In1819, however, the same court in Coventry v. Barton," (anotherindemnity case), recognized the exception, citing Battersey's Caseand other authorities. Then, in 1823, in Thweatt's Adm'r v.Jones," Judge Green, though not mentioning Battersey's Case,declared, in effect, its postulate. After discussing the reason under-lying the general rule against contribution amongst joint wrong-doers, he said the reason "does not apply to torts or injuries arisingfrom mistakes or accidents .... The act which precludes a partyfront the right to claim contribution from those who are equallyliable to the burthen as himself, must be malum in se, as actualfraud or voluntary wrong." Since the supreme court of Virginiaprior to the Civil War was the curial predecessor of our own court,further comment on the Thweatt-Jones suit would seem pertinent.In this suit contribution was sought by the administrator of aninspector of tobacco against the administrator of a co-inspector onaccount of judgments paid by the former, inasmuch as "nakedly"alleged in the bill, "the recoveries were for a joint malversationin office." The trial chancellor dismissed the bill. The Virginiacourt then consisted of five judges, Fleming, Green, Coalter, Ca-bell and Brooke. Fleming was absent when the cause was decided.Green and Cabell would have" reversed the decree; Coalter andBrooke affirmed it; so it stood. Cabell stated as a general principle,that contribution would not be enforced among the participators ina tort; but that the principle had never been extended "to the non-performance of a civil obligation or duty, where that non-perform-ance does not proceed ex maleficio." Both Coalter and Brookestated the general principle above; both recognized that there wereexceptions to it; but both were of opinion that the allegations ofthe bill were insufficient to bring the suit within an exception.Coalter did not define abstractly what joint wrongs were not in-eluded in the general rule. Brooke said that courts of equitywould "relieve in all cases, in which the parties are in aequaZi jure,but would not do so where the parties are in pari dellcto." Thesyllabus (presumably prepared by Peyton Randolph) would up-hold the right of contribution in equity, where the dereliction"does not proceed ex maZleficio or from some actual fraud or volun-tary wrong." Recognition of this qualification followed in a num-1 2 Johns..52 (N. Y. 1800).1117 Johns. 142 (N. Y. 1819).121 Rand. 328 (Va. 1823). -2West Virginia Law Review, Vol. 47, Iss. 2 [1941], Art. 4https://researchrepository.wvu.edu/wvlr/vol47/iss2/4WEST VIRGINIA LAW QUARTERLY 125ber of cases, including Bailey v. Bussing,13 which, after reviewingthe English decisions, including Battersey's Case, held: "The rulethat there can be no contribution among wrongdoers, has so manyexceptions that it can hardly with propriety be called a generalrule. It applies properly only to cases where there has been anintentional violation of law, or where the wrongdoer is to be pre-sumed to have known that the act was unlawful." Other earlyaccordant cases are Acheson v. Miller,4 Horbach's Adm'rs v.Elder,5 Hunt v. Lane,8 Davis v. Arledge,'7 Jacobs v. Pollard,""Moore v. Appleton,'9 Ankeny v. Moffett, 0 and Herr v. Barber.2There are many later accordant cases, including such strong easesas Hobbs v. Hurley,2 2 Ellis v. Chicago & Northwestern R .Co.,23Goldman v. Mitchell-Fletcher Co.,24 Eureka Coal Co. v. Louisville& N. R. R.1" Horrabin v. Des Moines,20 and Turner v. Kirkwood.2Exceptions to the general rule (so-called) are noted in many en-cyclopedias and textbooks.28On the other hand a number of the earlier American decisionsdid tadopt the rule of Merryweather v. Nixan, despite its limitationby the English courts. Addison says the rule is that of the states.29But, according to Theodore W. Reath, attorney, who in 1898 care-fully reviewed the decisions 'pronouncing the rule, the facts inevery one showed "either an intentional tort or an act, as a basisof joint liability, which is malum in se or immoral. No case hasbeen found applying the rule to a joint tort or quasi delict not1328 Conn. 455 (1859).14 2 Ohio St. 203 (1853).'t 18 Pa. St. 33 (1851).'a 9 Ind. 248, 250-1 (1857).73 Hill 170 (S. C. 1836).28 10 Cush. 287, 57 Am. Dee. 105 (Mass. 1852).'9 26 Ala. 633 (1855).20 37 Aim. 109, 33 N. W. 320 (1887).212 Mackey 545, 556 (Dist. Col. 1883).22 117 Me. 449, 104 At. 815 (1918).23167 Wis. 392, 167 N. W. 1048 (1918).24292 Pa. 354, 141 AtI. 231 (1928).25219 ALL 286, 122 So. 169 (1929).28198 Iowa 549, 199 N. W. 988, 38 A. L. R. 554 (1924).27 49 F. (2d) 590, 596 (C. C. A. 10th, 1931).28 7 Am. & ENG. ENCY. L.&w 365-6; 13 C. J. 829 et se.; 18 C. T. S. 15 etseg.; (1915) 6 R. C. L. 1054 et segq.; 13 Am. JuR., Contribution § 37 et seg.;CooL=, ToTS (4th ed.) 297 et seg.; I JAGGARD, TORTS (1895) 215-216; PoL-LOOK, ToRTs 203; 1 SHEARMAN & REDFIEmLD, NFGLIGmo (6th ed. 1913) 24b;BisHop, NoN-CONTRACT LAw (1889) 22-23; 2 CHrUY, CoNTCFrATs (11th ed.1881) 897; 2 POmEmOY, EX ROD NARY RFMEDIES 1484.291 ADDIsON, ToRTs (1887) 98.3Hatcher: Battersey's Case (1623): Some Ups and Downs of the Rule Three ProDisseminated by The Research Repository @ WVU, 1941BATTERSEY'S CASEintentional and not immoral.''" Following 1898, a number ofcourts, "the great majority of modern authority", says one com-mentator,81 did deny contribution where the wrongs were neitherintentional nor immoral but simply negligent, notably the supremecourt of Virginia. Walton v. Mifler, 2 decided in 1909, withoutcitation of authority, held flatly that the right of contribution didnot exist among joint tortfeasors. This holding was repeated inseveral later Virginia cases until checked in 1919 by the followingstatute: "Contribution among wrongdoers may be enforced wherethe wrong is a mere act of negligence and involves no moral turpi-tude." Thus the statute revived, in effect, the doctrine of Bat-tersey's Case as well as the judicial declarations in Thweatt'sAdm'r v. Jones, which seemingly had been unchallenged in Vir-ginia from 1823 to 1909. And the Supreme Court pf West Vir-ginia, in Buskirk v. Sanders (1912),31 referred to that decisionand held that contribution between joint tortfeasors may be !had,except where the wrong is malum in se.8 4Some authorities say that the common law did not permit con-tribution among wrongdoers. This statement seems ill-advised.The brief acceptance of the rule of Merryweather v. Nixan by theEnglish courts from 1799 to 1827 cannot be taken to establish therule as the common law of England, when opp6sed by nearly threecenturies of preceding and succeeding English cases limiting therule; and the American cases in line with Merryweather v. Nixancan hardly be taken to establish its rule as the common law of thestates when consistently opposed by such a vigorous array of otherAmerican cases qualifying the rule. It would seem the most to besaid is that the decisions conflict on what 'he common law is. Amidsuch confusion, I see no reason to desert the side of the conflictheretofore adopted by our own court, the side on which lies, accord-ing to Adamson v. Jarvis, "reason, justice and sound policy".This study, obviously, does not include West Virginia RevisedCode (1931) c. 55, art. 7, see. 13.30 Reath, Contribution Between Persons Jointly Charged for Negligence -Merryweather v. Nxan (1898) 12 HARv. L. REV. 176, 182.31 Leflar, Contribution and Indemnity Between Tortfeasors (1932) 81 U. oFPA. L. REv. 140-141.82109 Va. 210, 63 S. E. 458 (1909).88 70 W. Va. 370, 73 S. E. 937 (1912).84Accord: Hutcherson v. Slate, 105 W. Va. 184, 190, 142 S. E. 444 (1928);Payne v. Charleston Nat. Bank, 112 W. Va. 251, 164 S. E. 252 (1932).4West Virginia Law Review, Vol. 47, Iss. 2 [1941], Art. 4https://researchrepository.wvu.edu/wvlr/vol47/iss2/4

Battersey\u27s Case (1623): Some Ups and Downs of the Rule Three Pronounced, Affecting Contributions between Joint Wrongdoers

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Battersey\u27s Case (1623): Some Ups and Downs of the Rule Three Pronounced, Affecting Contributions between Joint Wrongdoers

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