Odger's English Common Law

Chapter XV.
joint torts and civil conspiracies.
Joint Torts.
So far we have assumed that the tort on which the action
is founded is the act of a single individual. Often, however,
injury is caused to the plaintiff by the joint act of two
or more persons. These may either act in concert, each
taking some part in the proceeding, or one of them may do
the wrongful act at the bidding of the others. In either
case the wrongful act is a joint tort; and all persons con-
cerned in it are liable jointly and severally for all consequent
damage. 1
It is not necessary that each tortfeasor should be present and personally
take part in the actual commission of the wrong. If a master commands
his servant to commit a trespass or assault and the servant does so in the
absence of his master, both are joint tortfeasors. That his master ordered
him to do so will be no defence. " For the warrant of no man, not even
of the King himself, can excuse the doing of an illegal act ; for although
the commanders are trespassers, so are also the persons who did the fact." 2
And if judgment be given against the servant, he cannot recover any
contribution from his master ;
and any previous promise to indemnify him
against the consequences of his wrongful act will be void. 3
A person who is injured by a joint tort has a right of
action against each of those who were concerned in its
commission. But he is not bound to sue them all ; he may,
if he prefers, sue only one or two of them, and the liability
of the others will be no defence for those sued and will not
mitigate the damages recoverable in respect of the joint tort.
1 Co. Litt. 232 a ; 1 Wms. Saund. 291 f ; Sutton v. Clarke (1815), 6 Taunt. 29 ;
Oreenlands v. Wilmshurst, #c, [1916] 2 A. C. 15.
2 Per cur. in Sands v. Chud and others (1693), 3 Lev. at -p. 352. And see
Mill v. Hawker and others (1875), L. R. 10 Ex. 92 ; Att.-G»n. v. he Wiidon, [1906]
2 Ch. 106 ; Cory % Son, Ltd. v. Lambton and Hetton Collieries (1916), 86 L. J. K. B.
401.
* Shachell v. Rosier (1836), 2 Bing. N. C. 634.