Contribution between joint tort-feasors.

newspaper for insertion, he will be jointly liable with the publisher for its publication in the newspaper, though possibly he may also be severally liable in respect of the publication to the publisher. In an old case (a) it was held that slander cannot be joint any more than the tongues of the slanderers can be said to be one, a line of reasoning which would equally prevent the possibility of trespasses being joint.

As a general rule there can be no contribution between joint tort-feasors, that is to say, if an action being brought for a joint tort, and one wrong-doer pay the whole damages recovered, he cannot recover over a proportion of the damages from the others (b).

Where several persons combine to do some act which at the time of its commission they know to be unlawful, as where they combine to commit an assault or to publish a libel, no promise of contribution or of indemnity can be implied. For any express promise to pay would be void as founded on an illegal consideration, and for the same reason any promise to be implied from the conduct of the parties would, of course, be equally void. But where the party seeking contribution from the other wrongdoers did not, at the time of doing the act, know it to be unlawful, the objection on the score of illegality does not hold good (c). But even in those cases in which the joint wrongdoers did not intend to do anything unlawful, the mere fact that the damages have been levied wholly against one does not of itself give rise to an obligation upon the others to contribute. It might well be considered reasonable that as in the case of joint debtors such an obligation should exist, but it is settled law that it does not. The rule of Merryweather v. Nixan, which in this respect is anomalous and "does not appear to be founded on any principle of justice, or equity, or even of public policy” (d), has been too long the law of the land to be now open to question. In order to give rise to an implied promise of indemnity or con

(a) Chamberlaine v. Willmore, (1621)

Palm. 313.

(b) Merryweather v. Nixan, (1799) 8 T. R. 186.

(c) Adamson v. Jarvis, (1827) 4 Bing. 66; Betts v. Gibbons, (1834) 2

A. & E. 57; and per Lord Herschell in Palmer v. Wick and Pulteney Town Steam Shipping Co., (1894) A. C. at p. 324.

(d) See per Lord Herschell (1894) A. C. at p. 324.

tribution there must be the relationship of principal and agent between the tort-feasors, or, at all events, a request by one party to the other to do the act complained of (a).

Upon the rule, however, that there can be no contribution where the party seeking it knew at the time of doing the act that it was unlawful, an exception has been engrafted by the Directors Liability Act, 1890 (53 & 54 Vict. c. 64). By s. 3 of that Act directors, promoters, and persons authorising the issue of a prospectus are to be liable to subscribers for loss sustained by reason of any untrue statement in the prospectus, subject to certain limitations. And by s. 5 every person who "has become liable to make any payment under the provisions of this Act shall be entitled to recover contribution, as in cases of contract, from any other person who if sued separately would have been liable to make the same payment." Persons who fraudulently issue a prospectus which they know to be false are no doubt liable at common law, but that fact does not exclude their being also liable under the provisions of the Act, and they are consequently entitled to the relief afforded by the section (b).

plaintiff in

tort.

Where a tort was committed to some subject-matter in which Joint several persons were jointly interested, non-joinder of any of the parties so interested as plaintiffs was formerly matter for a plea in abatement, but if no such plea was raised, the parties who sued were entitled to recover damages in proportion to their interests in the subject-matter. Thus one of several joint owners of a chattel might recover for the injury to his share (c), leaving his co-owners to recover in another action for the injury to their shares (d).

Pleas of abatement are now abolished (e), and the present mode of objecting to non-joinder is by application at chambers to have the necessary parties added (ƒ), but if no such application be made or, being made, is refused, the old rule will presumably

(a) As to the circumstances under which a request will raise an implication of the promise, see Sheffield Corporation v. Barclay, (1903) 2 K. B. 580 (reversed (1905) A. C. 392) where all the earlier authorities are considered.

(b) Gerson v. Simpson, (1903) 2 K. B.

197.

(c) Bloxam v. Hubbard, (1804) 5
East, 407; Addison v. Overend, (1796)
6 T. R. 766.

(d) Sedgeworth v. Overend, (1797) 7
T. R. 279. See below, p. 185.
(e) Ord. XXI. rule 20.
(f) Ord. XVI. rule 11.

Principal and
Agent.

Two classes of agents

servants and

contractors.

still hold good, that the party suing may recover in proportion to his interest and no more.

In the case of libel on a member of a firm there may well be a double injury, one to the reputation of the individual member (a), and another to the reputation of the firm (b), for which distinct actions will lie; and presumably the individual member, after recovering in an action for the injury to himself personally, may sue alone in a second action for the damage to the firm in respect of his interest in it.

Not only is a person liable for torts committed by himself, but he is also, subject to certain conditions, liable for torts committed by his agents. If indeed the tort of the agent has been either primarily authorised or subsequently ratified by the principal, it is the act of the principal himself, and no difficulty as to his liability arises (c). Moreover, under certain circumstances, the principal, whether an individual or a corporate body, will be liable even for the unauthorised torts of his agents (d).

Nor will the fact that the act complained of, although within the scope of the agent's employment, was done in the interests of the agent himself and not of his principal exonerate the latter from liability to third parties (e).

And this rule applies even in cases where the terms of the written authority under which the agent acted were unknown to the third party at the time when the act complained of was committed (ƒ).

In considering what those circumstances are, which render a principal liable for the unauthorised torts of his agent, it is necessary in the first place to distinguish between those cases in which the principal, by the terms of the employment, express or understood, reserves to himself a power of controlling the agent in the execution of the work that he is employed to do, and of dismissing him for disobedience of orders, and those cases in which

(a) Harrison v. Bevington, (1838) 8 C. & P. 708.

(b) Forster v. Lawson, (1826) Bing.

452.

(e) Carter v. St. Mary Abbott's, Kensington, (1900) 64 J. P. 548, C. A. And

see above, p. 60.

(d) Holliday v. National Telephone Co., (1899) 2 Q. B. 392, C. A.

(e) Hambro v. Burnand & Others. (1904) 2 K. B. 10, C. A. (f) S. C.

the principal does not reserve to himself any such power. Agents of the latter class are generally spoken of as independent contractors; though even when an independent contractor is employed, recent decisions seem to show that a principal cannot always divest himself of responsibility towards third parties by proving, in evidence, that the actual tort-feasor was a person over whom he had reserved no control (a).

Those agents of the former class whose employment is more or less continuous are usually styled servants, while those whose employment is intermittent or confined to a particular occasion, are usually called by the generic name of agents. Between servants, however, and other agents over whom the employer reserves control, there is no distinction in point of law; the employer is liable for the torts of the one to the same extent and subject to the same conditions as he is liable for the torts of the other. For the sake of brevity, therefore, it may be convenient to speak of all those classes of agents over whom the employer reserves control under the name of servants, as in contradistinction to contractors over whom such control is not reserved (b).

In every case the question whether an agent is employed as a servant or as a contractor is a question of intention, and therefore a question of fact. Where the agent is one "who is recognised by the law as exercising a distinct calling" (c) involving for its exercise a certain degree of skill and experience, there is a strong presumption that the employer did not reserve any control over one who presumably knows much better how to do the work than himself, and therefore if one employ a licensed drover to

(a) The Snark, (1899) P. 74; 80 L. T. 25; Hill v. Tottenham Urban Council, (1898) 79 L. T. 495; Mileham v. St. Marylebone Borough Council, (1903) 1 L. G. R. 412.

(b) The definition above given of an independent contractor would undoubt edly include a solicitor, for a lay client obviously does not usually reserve to himself any power of controlling the solicitor in the conduct of the business which he is employed to do, and yet it has been held that where a solicitor of a

judgment creditor negligently directed the sheriff to take the goods of the wrong person in execution, the client was liable for the act of the solicitor (Jarmain v. Hooper, (1843) 6 M. & G. 827). But that decision must be regarded as anomalous. If such a question were to arise for the first time at the present day, it would probably be decided otherwise. See the judgment of Jessel, M.R., in Smith v. Keal, (1882) 9 Q. B. D. 340.

(c) Per Lord Denman, Milligan v. Wedge, (1840) 12 A. &. E. p. 741.

Essentials of relationship of master and servant.

drive a bullock for him through the streets the drover will not be the servant of the party employing him (a), by reason of the contractor, under such or cognate circumstances, choosing alike the method in which the work is to be done and the persons who are to do it; though, as before stated, the mere fact of a principal employing an independent person does not necessarily relieve him from personal liability for the tortious acts of the persons so employed (b). Thus if an owner of property employ an independent contractor to rebuild his house, and the builder's workmen so negligently perform their duty as to injure the property of an adjoining owner, the building proprietor, as well as the builder, is responsible to the aggrieved third party for the tortious act (c). On the other hand, where the agent is a person not exercising an independent employment, but is directly under the personal control or supervision of his employer, the inference is that he is employed as a servant and not as a contractor, although he may be specially retained as a person skilled in the particular duty or office for which he is engaged. And this presumption is strengthened when from the nature of the employment it may be reasonably supposed that the person employed has no higher degree of skill or experience than the employer, as where an ordinary labourer is employed to clean out a drain, the inference under such circumstances being that he is employed as a servant and not as a contractor (d).

To constitute the relationship of master and servant for this purpose there is no necessity for any consideration for the service. If a person employ another to do some act on his behalf gratuitously, as where the owner of a carriage gets a friend to drive it for him (e), the employer will be liable for the manner in which the act is done, to the same extent to which he would be so liable if the agent were paid. If A. lends his servant to B. for a job, the servant becomes ad hoc the servant of B., though B. pays nothing for his services (f). The question is whether

(a) Per Coleridge, J., Milligan v. Wedge, (1840) 12 A. & E. p. 742.

(b) Duke v. Courage, (1882) 46 J. P. 453. (c) Dalton v. Angus, (1881) 6 App. Cas. 740; Hughes v. Percival, (1813) 8 App. Cas. 443.

(d) Sadler v. Henlock, (1855) 4 E. & B.

570.

(e) Wheatley v. Patrick, (1837) 2 M. &. W. 650.

(f) Donovan v. Laing Wharton & Down Construction Syndicate, (1892) I Q. B. 629.