WALI ULLAH,J. - (1.) I agree to the order proposed to be passed in this appeal. I, however, wish to deal with the main question of law which has been discussed in this case.
(2.) THE main question of law which calls for decision in this case is whether the rule laid down in the English case, Merryweather v. Nixon, (1799) 8 T. R. 186 : 16 R. R. 810 : 101 E. R. 1337, applies to India. On this question, there is a serious conflict of judicial opinion in India. There is a serious conflict of opinion even in this Court. This is the principal reason for reference of this case to a Full Bench. The case of Merryweather v. Nixon was decided by the Kings Bench in 1799 by Lord Kenyon, C. J. It was a Court of Common Law as distinct from a Court of Equity. It was an action based upon an implied "assumpsit" on those facts. The plaintiff and the defendant had destroyed the machinery and injured the mill of a millowner. The mill owner brought an action on the case against both of them. Having recovered - 840 he levied the whole on the plaintiff. Thereupon the plaintiff brought an action, upon an implied assumpsit, against the defendant for a contribution of a moiety, as for so much money paid to his use. It may be noted here, in passing, that an action upon an assumpsit in En glish Law was an action for the recovery of damages, whether liquidated or unliquidated, for the breach of a parol or a simple contract, either express or implied. It was, however, abolished by the Common Law Procedure Act of 1854. It is, therefore, clear that the plaintiff based his claim on an implied contract. The plaintiff was nonsuited as it was held in substance, though not in so many words, that no implied promise to pay could be inferred in the circumstances of the case. It must be observed that the reasons to be found in the judgment of Lord Kenyon as well as the statement of the facts of the case are very meagre. The rule deduced from the actual decision and commonly known as the rule in Merryweather v. Nixon, however, is formulated in these terms : There is no contribution among joint tort -feasors or joint -wrong doers i. e. if a decree is given against two or more defendants, but the whole decretal amount be realised from one defendant alone, he has no right to claim an indemnity, or contribution, from the other or others. This rule became well established at Common Law in England. It did not, however, escape serious criticisms at the hands of learned Judges who, with the gradual predominance of equitable considerations in later years, felt that the case of Merryweather v. Nixon was decided on a very narrow ground and that in that case the rule laid down was very imperfectly considered and formulated. Even the right of Merryweather v. Nixon to be treated as a leading case has been seriously questioned : See, for instance, the preface to volume 16 of the Revised Reports where it is characterised as "being really neither an adequate nor an accurate authority." Again, in Betts v. Gibbins, (1834) 2 A and E 57, Taunton J. spoke about the case thus : "Rather an unsatisfactory case. It is shortly reported and the nature of the injury does not appear."
(3.) IN course of time certain qualifications were engrafted on the original rule by later authorities as well as by statutes. Particular reference may be made to the case of Adamson v. Jarvis, (1827) 4 Bing 66 at p. 73, in which the plaintiff, an auctioneer, was considered to be entitled to an indemnity from the defendant (client) who had instructed him to sell goods to which, it subsequently appeared, he had no title. Best, C. J. in delivering the judgment of the Court observed: "From the inclination of the Court in this last case and from the concluding part of Lord Kenyons judgment in Merryweather v. Nixon and from reason, justice, and sound policy, the rule that wrong doers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act." Again, reference may be made to the case of Betts v. Gibbins, (1834) 2 A and E 57, where Lord Denman observed: "The general rule is that between wrong -doers there is neither indemnity nor contribution: the exception is where the act is not illegal in itself. " In Palmer v. Wick and P. S. Shipping Co., (1894) A. C. 318 at p. 324 Lord Herschell L. C. quotes these observations with approval and regards them as establishing a right of contribution in a case of joint negligence. ;