Percy v. Clary

Brent, J., delivered the opinion of the Court. This action was brought to recover from the appellants, executors of James Percy, certain rents which he had received in his lifetime from the United States Government, for the occupation of the property of Rebecca Clary, the appellee, as a temporary hospital. Among other defences, that of set-off was relied upon. To support it, the appellants offered in evidence the record of a judgment against Rebecca Clary and James Percy, which it was conceded had been fully paid by Percy.

This judgment had been recovered against them as co-defendants, by a certain George Clise, for a trespass “ in forcibly expelling and removing him from his dwelling house and close.” The offer was made with a proffer to follow it up by proof, that Rebecca Clary had rented the property to Cliso, who was in possession of it on the 4th of March, 1862, claiming to be entitled to hold it for a year longer; that she went to his house on that day and told his family they must move out immediately, as she had rented the property to the United States for a hospital; that she remained there in the house until the United States troops came and put out the family and furniture of Clise on the same day; that James Percy was not present and that the only proof against him was that he aided her in endeavoring to get the rents of the property, from that time, settled and paid over, and that on such evidence the verdict was rendered against both. They also offered to prove that the counsel employed by Percy, for Mrs. Clary and himself in that suit, and who defended the same, were paid each $100, and that the same was reasonable; that ho also employed the attorney and agent who collected the rents from the United States, and- that Mrs. Clary furnished the attorney so employed w'ith the necessary vouchers to receive the same, and that he, Percy, never received or charged anything for his services in the matter. Upon objection being made, the Court below refused to allow the evidence to be given, and in this refusal the appellants allege there is error. ²⁵⁰ The recoi’d of the judgment offered shows that it was rendered against these parties as tort-feasors, and having been fully paid by one of them, can the amount thus paid, or any part of it, constitute a sufficient cause of action against the other? The general rule of law is well established, that among wrong doers, there is no contribution or indemnity, Merryweather vs. Nixon, 8 T. R., 186; 2 Grenl.

Ev., sec. 115; 1 Par. on Con., 37, and it is very clear that the judgment offered was not admissible unless it comes within some exception to the rule. The authorities cited and relied upon in the argument for the appellants, are cases in which the wrong committed was not in itself illegal, and where the right to recover rested upon the express or implied assumpsit of the defendant to indemnify a party acting by his authority. Adamson vs. Jarvis, 4 Bing., 66; Betts vs. Gibbin, 2 Adol. & El., 57. Adopting these cases, the doctrine to be deduced from them is: first, that the wrong must not be malum in se; and second, that the party claiming contribution must have acted without any design to violate the law, and as the agent or by the authority of him from whom he seeks to recover.

In 2 Greenl. Ev., sec. 115, it is said, “the exception is that a party may, with respect to innocent acts, give an indemnity to another, which shall be effective; though the act, when it came to be questioned afterwards, would not be sustainable in a Court of Law, against a third person who complained of it. If one person induce another to do an act which cannot be supported, but which he may do without any breach of good faith or desire to break the law, an action on the indemnity, either express or implied, will be supported.” Would the evidence offered and rejected in the Court below have brought the present case within the reason and meaning of this exception ? The wrong complained of, and for which damages were given by the