individuals who are not common carriers. If a person volunteers, through himself or his servants, to transport others by modes or under circumstances calculated to expose them to danger, he should be held to assume the duty of care in so doing, and the duty to make compensation, in case he should become the instrument of a negligent injury to his charge. The case of a libel in a newspaper may give us a further illustration of joint and several liability for a tort. A libel may be written by a subordinate and published in the paper without the knowledge of the proprietor, but the proprietor will nevertheless be responsible, though the publication may have been entirely against his desire, and offensive to him when brought to [*144] his *knowledge. The publication of the paper is in law his act, whether managed by him in person or intrusted to agents; and if he fails to exclude libelous matter he fails in that supervision of his own business which is due to the public, and he cannot excuse himself by showing that he did not authorize a wrong which it was his duty to guard against and render impossible.' But the subordinate is responsible also, because he, like every other person, is under obligation at all times and in all positions to abstain from inflicting the injury of defamation. A corporation has been held responsible to persons to whom its agent, acting within the apparent scope of his powers, had issued fraudulent certificates of stock, whereby they were defrauded. The responsibility of both principal and agent here would seem unquestionable, the agent being the active wrongdoer and the principal responsible for his acts. Contribution and Indemnity as Between Wrong-Doers. 1 Dunn v. Hall, 1 Ind. 344; Buckley . Knapp, 48 Mo. 152; Perrett v. Times Newspaper, 25 La. Ann. 170; Dole v. Lyon, 10 Johns. 446; Wilson v. Noonan, 27 Wis. 598. New York & N. H. R. R. Co. v. Schuyler, 17 N. Y. 593; Same v. Same, 34 N. Y. 30. See Bridgeport Bank v. N. Y. & N. H. R. R. Co., 30 Conn. 231. From failure to keep a highway in repair whereby injury is suffered, one highway commissioner may be As liable, although the negligence is that of the three commissioners. Not being a corporation, there is no reason for making an exception to the general rule that any one of several wrong doers may be sued. Babcock v. Gifford, 29 Hun, 186. Distinguishing Bassett v. Fish, 75 N. Y. 303, where school trustees were held not individually liable for negligence because they were a body corporate. under the rules already laid down the party wronged may, at his election, compel any one of the parties chargeable with the act, or any number less than the whole, to compensate him for the injury, it becomes a consideration of the highest importance to the person or persons thus singled out and compelled to bear the loss, whether the others who were equally liable may be compelled to contribute for his relief. On this subject there is a general rule, and there are also some very important exceptions. The general rule may be found expressed in the maxim that no man can make his own misconduct the ground for an action in his own favor. If he suffers because of his own wrong-doing, the law will not relieve him. The law cannot recognize equities as springing from a wrong in favor of one concerned in committing it.' *But there are some exceptions to the general rule which [*145] rest upon reasons at least as forcible as those which support the rule itself. They are of cases where, although the law holds all the parties liable as wrong-doers to the injured party, yet as between themselves some of them may not be wrong doers at all, and their equity to require the others to respond for all the damages may be complete. There are many such cases where the wrongs are unintentional, or where the party, by reason of some relation, is made chargeable with the conduct of others. A case in point is where a railroad company is made to pay damages for an injury caused by the carelessness of one of its servants. Here the injured party may justly hold both the 'Merryweather v. Nixan, 8 T. R. 180; Pearson v. Skelton, 1 M. & W. 504; Wooley v. Batte, 2 C. & P. 417; Adamson v. Jarvis, 4 Bing. 66; Colburn. Patmore, 1 C. M. & R. 73; Mitchell v. Cockburne, 2 H. Bl, 379; Cumpston v. Lambert, 18 Ohio, 81; Selz . Unna, 1 Biss. 521; S. C. in Error, 6 Wal. 327; Minnis ». Johnson, 1 Duv. 171; Armstrong Co. v. Clarion Co., 66 Penn. St. 218; Philadelphia v. Collins, 68 Penn. St. 106; Coventry v. Barton, 17 Johns. 142; Stone v. Hooker, 9 Cow. 154; Miller v. Fenton, 11 Paige, 18; Rhea v, White, 3 Head, 121; Anderson v. Saylors, Id. 551; Percy . Clary, 32 Md. 245; Spalding V. Oakes 42 Vt. 343; 2 Where the owner or occupant of premises creates a nuisance in the sidewalk adjoining the same, without the authority of the municipal authorities, either express or implied, and the city is compelled to pay damages to a person for a personal injury, caused by the same, the author of such a nuisance will be responsible to the city for the damages so paid by it. Gridley v. City of Bloomington, 68 Ill. 47. See Chicago v. Robbins, 2 Black, 418 and cases p. *626 company and its servants to responsibility; but the actual wrong, so far as it is one in morals, is on the part of the servant alone, and the company is holden only through its obligation to be accountable for the action of those to whom it entrusts its business. As between the company and its servants the latter alone is the wrong-doer, and in calling upon him for indemnity, the company bases no claim upon its own misfeasance or default, but upon that of the servant himself." On the other hand, suppose the servant be directed by the officers of the company to do a certain act which it turns out they had no right to do, and for doing which he is made to pay damages. Here, if the act was a plain and manifest wrong, as would be leaving the cars to commit a battery, the servant can have no indemnity, because he must have known the act to be unlawful; but if the act directed was one he had reason to sup pose was legal, and he obeyed directions on that supposi[*146] tion, it *would ill become the railroad company to demand that he be treated as a wrong-doer when called upon to indemnify him against the consequences of the act its officers had directed. In such a case the servant is not in morals a wrong-doer at all, and his claim to indemnity would be based upon a faithful obedience to orders which he had a right to presume were rightful, nothing to the contrary appearing.' A similar case is presented where an officer executes imperfect or defective process under a promise of indemnity, or in good post. Where a lot owner should build a walk and in default of his doing it the duty falls upon a public board, he and it are not joint tort feasors if from failure to build it, a traveller is injured. Detroit v. Chaffee, 37 N. W. Rep. 882 (Mich.) Where damage has been done by failure of defendant to repair a bridge, as was its duty, to one dealing with plaintiff and using the bridge, and plaintiff has paid for the damage, he may have indemnity from party chargeable directly with duty of repairing the bridge. Minneapolis Mill Co. v. Wheeler, 31 Minn. 121. See Mainwaring v. Brandon, 8 Taunt. 202; S. C. 2 Moore, 125; Res pass v. Morton, Hardin, 234; Smith e. 2 Humphries v. Pratt, 2 D. & Clark, 288; Morris v. Brokley, 8 East. 172, note; Walker v. Hunter, 2 M. G. & S. 324; Bond v. Ward, 7 Mass. 125; Spangler v. Commonwealth, 16 S. & R. 68; Commonwealth o. Van Dyke, 57 Penn. St. 34; Tarr v. Northey, 17 Me. 113; Howard v. Clark, 43 Mo. 344; Chamberlain v. Beller, 18 N. Y. 115; Howev. Buffalo, etc., R. R. Co., 37 N. Y. 297; Nelson v. Cook, 17 Ill. 446; Grace v. Mitchell, 31 Wis. 533; S. C. 11 Am. Rep. 613; Long v. Neville, 36 Cal. 455. faith serves process on the wrong person or property, on a like promise, or at the special request or under the direction of the plaintiff. In general, as already stated, the officer must take upon himself the responsibility for all action which purports to be official,' and if he serves void process, or renders himself a trespasser in the service of valid process, it does not excuse him that he had for the purpose the participation or the advice of the plaintiff or his attorney; that fact only makes another party liable with him. Neither will that fact entitle him to indemnity, for the parties are both wrong-doers, and each is a free agent in what is done, not being at all under the control of the other. But if the question of law or of fact is in doubt, it is not incompetent for the officer to allow the party suing out process to take upon himself the responsibility; and when he does so and agrees to indemnify the officer, the agreement may be enforced. This is upon the same ground, that though as to the party injured both may be technically in the wrong, it is not so as between the parties themselves." Such case may he *contrasted with cases in which the thing done was a [*147] palpable wrong, such, for instance, as the publication of a libel, in which the most formal agreement to indemnify will be void. 'Nelson v. Cook, 17 Ill. 443. Nelson v. Cook, 17 Ill. 443; Crossman v. Owen, 62 Me. 528. As to the right of an officer to demand indemnity, see Commonwealth o. Van Dyke, 57 Penn. St. 34; Chamberlin v. Beller, 18 N. Y. 115; Smith v. Cicotte, 11 Mich. 383; Grace v. Mitchell, 31 Wis. 533; S. C. 11 Am. Rep. 613. A promise to indemnify against liability for an act not known at the time to be unlawful is valid. Coventry v. Barton, 17 Johns. 142; Stone v. Hooker, 9 Cow. 151; Armstrong Co. . Clarion Co., 66 Penn. 218; S. C. 5 Am. Rep. 368; Avery v. Halsey, 14 Pick. 174. Where an officer is induced by the false statements of another as to the ownership of certain property, to take it into his possession, and is sued and compelled to pay damages for so doing, he is entitled to indemnity from the party guilty of the fraud and those assisting him therein. Kenyon. Woodruff, 33 Mich. 310. Shackell v. Rosier, 2 Bing. (N. C.) 634; Arnold v. Clifford, 2 Sumner, 238; Atkins v. Johnson, 43 Vt. 78; S. C. 5 Am. Rep. 260. See Nelson v. Cook, 17 Ill. 443. There is no implied obligation to contribute between tort feasors, and if such liability can be created by express promise the promise must rest upon some other consideration than the fact of the tort and of the relation of the accused parties to each other in the guilty transaction." Nichols . Nowling, 82 Ind. 488. An agreement by a prisoner that if the officer will permit him to go at large he will appear at the The foregoing are cases of indemnity; that is to say, cases in which the party actually in the wrong was compelled to relieve of the whole burden the party only technically in the wrong. But there are cases of contribution which are supported by reasons equally satisfactory. Two persons, we will suppose, are jointly concerned in a transaction, and in carrying it out according to arrangement and without any intent to injure others, they are nevertheless made liable by some invasion of another's right. Here, if one were compelled to make good the loss, we should say his right to contribution was undoubted. As between himself and his associate he was not a wrong-doer at all.' An attempt has been made in some cases to lay down a general rule by which it may be determined in every case whether the party is or is not entitled to contribution. Thus, in [*148] Ohio, *the judicial conclusion is, that "the common sense rule and the legal rule are the same, namely, that when parties think they they are doing a legal and proper act, contribution will be had; but when the parties are conscious of doing a wrong, courts will not interfere." * time of trial or will pay the creditor's debt, is void, and if the officer renders himself liable by accepting it and permitting the prisoner to go, he can recover no indemnity, his act being unlawful. Pitcher v. Bailey, 8 East, 171; De Mesnil v. Dakin, L. R. 3 Q. B. 17; Riley v. Whittiker, 49 N. H. 145; Ayer v. Hutchins, 4 Mass. 370; Appleby v. Clark, 10 Mass. 59; Hopkinson v. Leeds, 78 Penn. St. 396. 1 1 Bailey v. Bussing, 28 Conn. 455; Wooley v. Batte, 2 C. & P. 417; Pearson v. Skelton, 1 M. & W. 504; Horbach's Administrator v. Elder, 18 Penn. St. 33; Moore . Appleton, 26 Ala. 633. This rule has been applied to one of several officers of a corporation who had been held liable to a creditor of the corporation for the neglect of all to file certain certificates as required by statute. "By accepting their positions as officers," it was said, "they impliedly agreed that they would make and publish the an nual certificate, and failing in this, that they would become responsible to the creditors of the corporation. While engaged, therefore, in a lawful business, they have been guilty of a neglect which has exposed them to this liability." As between themselves, therefore, the rules of contribution that prevail between joint contractors, rather than those between joint tort feasors, ought to apply. Nickerson v. Wheeler, 118 Mass. 295, 298. 2 Acheson v. Miller, 2 Ohio, (N. 8.) 203. This was a case of contribution as between sureties, a part of whom had become trespassers in an endeavor to enforce payment of the debt by the principal. Compare Grund v. Van Vleck, 69 Ill. 479, where a partner, not present, and not consenting to the suing out of an illegal distress warrant, was held not responsible in trespass, because of that relation. Citing Petrie . Lamont, 1 C. & M. 57. If |