It has long been a familiar maxim that as between joint tort-feasors contribution will not be enforced. This exception to the general rule had its origin in Merry weather v. Nixan,1 decided in 1799 and commonly referred to as the leading case on the subject. One Sharkey had brought an action on the case against the plaintiff and defendant in this case, for an injury done by them to his reversionary estate in a mill, in which was included a count in trover for the machinery belonging to the mill, and having recovered judgment, collected the whole amount thereof from the present plaintiff, who thereupon brought this action for contribution. Lord Kenyon held that the plaintiff was properly nonsuited, but did not state the grounds upon which he based his decision, merely remarking that "he had never before heard of such an action having been brought where the former recovery was for a tort," and adding that his decision "would not affect cases of indemnity, where one man employed another to do acts, not unlawful in themselves, for the purpose of asserting a right."

1 Deering v. Earl of Winchelsea, 1787, 2 Bos. & Pul. 270; s. c. 1 Cox 318; Craythorne v. Swinburne, 1807, 14 Ves. Jr. 160; Mayhew v. Crickett, 1818, 2 Swans.185; In re Sir J. J. Ennis, [1893] 3 Ch. 238; Cobb v. Haynes, 1847, 8 B. Mon. (47 Ky.) 137; Craig & Angle v. Ankeney, 1846, 4 Gill (Md.) 225; Young v. Shunk, 1883, 30 Minn. 503 ; 16 N. W. 402; Barnes p. Cushing, 1901, 168 N. Y. 542 ; 61 N. E. 902; National Surety Co. v. Di Marsico, 1907, 55 Misc. Rep. 302; 105 N. Y. Supp. 272 ; Bright v. Lennon, 1880, 83 N. C. 183 ; Robinson v. Boyd, 1889, 60 Oh. St. 57 ; 53 N. E. 494; Thompson v. Dekum, 1898, 32 Or. 506; 52 Pac. 517, 755; Harris v. Ferguson, 1831, 2 Bailey L. (S. C.) 397; Rudolf v. Malone, 1899, 104 Wis. 470; 80 N. W. 743.

2Golsen v. Brand, 1874, 75 111. 148; Chaffee v. Jones, 1837, 19 Pick. (Mass.) 260; Warner v. Morrison, 1862, 3 Allen (Mass.) 566; Norton v. Coons, 1851, 6 N. Y. 33; Stovall v. Border Grange Bank, 1883, 78 Va. 188.

The maxim is now subject to so many limitations that, stated without qualification, it can hardly be regarded as a rule of law.2