Odger's English Common Law

624 JOINT TORTS.
But a judgment against these is a bar to any subsequent
action for the same tort against any one else -who was jointly
liable -with them, even though the judgment in the first
action has not been satisfied. 1 The plaintiff can only bring
one action for a joint tort ; he cannot recover twice over from
different defendants damages for the same injury. So a
release given to one or more of the tortfeasors is a release to
them all, for " the cause of action is one and indivisible." 2
Moreover, according to the strict rule of the common law,
there is no contribution between tortfeasors
;
s that is to
say, if a plaintiff who has recovered damages against two
defendants for a joint tort levies the whole damages on one
of them, that one has no claim against the other for his
share of such damages. Thus a principal, who employed
another to commit a tort on his behalf, cannot be compelled
to compensate his agent for the damages and costs which he
has had to pay the person injured. The proprietor of a
newspaper cannot make his editor recoup him the damages
and costs recovered by a plaintiff in respect of a libel
which the editor carelessly inserted without the knowledge
of the proprietor. 4
Moreover, the jury have no right to split
up the damages awarded into the shares which in their
opinion each defendant ought to pay. 5
The rigour of the common law has, however, been somewhat modified in
recent times. It is now held that where the wrongful act in question is not
clearly illegal, but may have been done in good faith, contribution or
indemnity can be claimed. Thus, an auctioneer, who in good faith sells
goods on behalf of a person who has no right to dispose of them, is entitled
to be indemnified by that person against the claim of the rightful owner.
A similar distinction exists in the case of an express indemnity. If a
person is instructed to do an act which is clearly tortious, and the person
so instructing him undertakes to indemnify him from the consequences of
such act, no action will lie ; yet if the act which he is instructed to do is
not of itself manifestly unlawful, and he does not know it to be so, he can
recover thereon.'
1 Brinsmead v. Harrison (1872), L. B. 7 C. P. 647.
2 Per A. L. Smith, L. J., in Duck v. Mayeu, [1892] 2 Q. B. at p. 513.
3 Merryweather v. Nixan (1799), 1 Sm. L. U., 12th ed., 443 : but see Sheplieard
v. Bray, [1907] 2 Ch. 571.
* Colburn v. Patmore (1834), J. Or. M. & E. 73.
5 DamUni v. Modern Society, Ltd. (1910), 27 Times L. E. 164.
8 Adamson v. Jarvis (1827), 4 Bing. 66.
7 See the remarks of Lord Denman, C. J. , in Betts and another v. Oibbins (1834),
2 A. & E. at p. 74 ; Burrows v. Rhodes and Jameson, [1899] I