1 86 HARVARD LAW REVIEW, In Acheson v. Miller,^ contribution was sought for a wrongful joint levy upon certain goods. The parties who directed the levy believed it to be lawful. The court held that they were wrong- doers, and applied Merryweather v. Nixan, denying contribution. Thus the case was reversed and sent back for re-trial. But when it came before the Supreme Court of Ohio a second time (2 Ohio State, 203, 1853) the unsoundness of the former decision was recognized, the decision in terms overruled and con- tribution allowed, Caldwell, J., saying: —
- ' The rule that no contribution lies between trespassers, we apprehend,
is one not of universal application. We suppose it only applies to cases where the persons have engaged together in doing wantonly or knowingly a wrong. The case may happen that persons may join in performing an act which to them appears to be right and lawful, but which may turn out to be an injury to the rights of some third party,, who may have a right to an action of tort against them. In such case, if one of the parties who have done the act has been compelled to pay the amount of the damage, is it not reasonable that those who were engaged with him in doing the injury should pay their proportion? The common understand- ing and justice of humanity would say that it would be just and right that each of the parties to the transaction should pay his proportion of the damage done by their joint act j and we see no reason why the moral sense of a court shall be shocked by such a result." In Bailey v. Bussing,^ the owner of a coach, after being charged for the negligence of the driver, sued him for contribution, and it was held he could recover. Ellsworth, J., said : —
- ' The reason assigned in the books for denying contribution among
trespassers is that no right of action can be based on a violation of law ; that is, where the act is known to be such, or is apparently of that character. A guilty trespasser, it is said, cannot be allowed to appeal to the law for an indemnity, for he has placed himself without its pale by contemning it, and must ask in vain for its interposition in his behalf If, however, he was innocent of an illegal purpose, ignorant of the nature of the act, which was apparently correct and proper, the rule will change with its reason, and he may then have an indemnity, or, as the case may be, a contribution, — as a servant yielding obedience to the command of his master, or an agent to his principal, in what appears to be right ; an assistant rendering aid to a sheriff in the execution of process ; or com- 1 18 Ohio, I (1849). 2 28 Conn. 455 (1859).
