feazors is not so unqualified as the defendant's argument would require it to be. On this last point, *Merryweather v. Nixan, 8 T. R. 186, was cited *65] at the trial for the defendant, where one of two parties, against whom jointly there had been a recovery in an action of tort (for injury to a mill), sued the other for contribution, and was nonsuited: but there Lord Kenyon distinguished the case from cases of indemnity where one man employed another to do acts not unlawful in themselves, for the purpose of asserting a right. [TAUNTON, J. Merryweather v. Nixan, 8 T. R. 186, is rather an unsatisfactory case; it is shortly reported, and the nature of the injury does not appear. In that case, Philips v. Biggs, Hardres, 164, was mentioned, in which no decision is given, and it is said that the Court doubted, and likened the case of the two sheriffs of Middlesex, in an action for escape, to that of two joint obligors. In Adamson v. Jarvis, 4 Bing. 72, the Court, in giving judgment said "Every man who employs another to do an act which the employer appears to have a right to authorise him to do, undertakes to indemify him for all such acts as would be lawful if the employer had the authority he pretends to have:" and they confined the doctrine that wrongdoers cannot have redress or contribution, as against each other, to cases where the person seeking redress must have known that he was doing an unlawful act. In Colburn v. Patmore, 1 C. M. & R. 73; S. C. 4 Tyrwh. 677, the proprietor of a newspaper sued his editor for inserting a libel without the knowledge of the plaintiff, for which the plaintiff had been convicted and fined; and Lord Lyndhurst said, "I entertain little doubt that a person who is declared by the law to be guilty of a crime cannot be allowed to recover *damages against another who has participated in its *66] commission:" but there the plaintiff was an actual criminal; and, indeed, the decision of the case was founded on a distinct ground. In Humphrys v. Pratt, 2 Dow & Clarke, 288, the House of Lords held that a sheriff, who, at the request of an execution creditor, had seized goods not belonging to the debtor, but pointed out by the creditor as the debtor's goods, might recover from the creditor indemnity for the damages and costs of an action in which the real owner recovered against the sheriff. If an act be indifferent in itself, and become lawful or unlawful only from the circumstances attending it, then the party who orders it to be done may be made answerable for its consequences to the party acting upon the order. In Fletcher v. Harcot, Hutton, 55; S. C. as Battersey's case, Winch, 48, the plaintiff declared that the defendant had arrested one B. on a commission of rebellion, and had requested the plaintiff to keep him as prisoner, and had promised to indemnify; that the plaintiff had kept him, and that B. had afterwards recovered against the plaintiff for false imprisonment; the jury found for the plaintiff on an issue of non-assumpsit; and, on motion in arrest, the plaintiff had judgment, the Court saying, that he which doth a thing which may be lawful, and the illegality thereof appear not to him, he which employs the party and assumes to save him harmless, shall be charged. In Farebrother v. Ansley, 1 Camp. 343, it was held that the sheriff is not bound by implied promise to indemnify an auctioneer, who has, at the request of the sheriff's officer, sold goods belonging to a stranger who recovers against him; and *that, if the sheriff be made by such party a joint de*67] fendant with the auctioneer, the latter, in the event of execution being levied upon him alone, cannot come upon the sheriff for contribution. The ground of that decision was, that the officers were liable to the sheriff, not the sheriff to the officers, who had involved him in the trespass. In a note to the case, Fletcher v. Harcot, Hutton, 55; S. C. as Battersey's case, Winch, 48, is cited; and the reporter adds, that he has not been able to find any case deciding how far a promise of indemnity will be implied, where one ignorantly commits a trespass at the request of another. Martyn v. Blithman, Yelv. 197, is cited in the same note; the effect of that case is, that an express promise to indemnify a party against the consequences of an act known by that party to be illegal, will not be a ground of action. Whether the promise in Fletcher v. Har

cot, Hutton, 55; S. C. as Battersey's case, Winch, 48, was express or implied does not appear.

Again, the plaintiffs are not fixed with the knowledge that the right of stoppage in transitu was determined, even if it was determined. The only facts within their knowledge were, the arrival at the wharf, the order given by the defendant to separate the goods for the parties and to have them taken away, and the delivery of the two casks. In Hanson v. Meyer, 6 East, 614, it was held, that a weighing by a warehouse keeper, by the order of the owner, of a part of an article sold in the mass, for the purpose of delivery, and a delivery of that part, did not amount to a delivery of the whole, although the order of the vendor to the warehouse keeper was, to weigh and deliver the whole: Winks v. Hassall, 9 B. & C. 372; Dixon v. *Yates, 5 B. & Ad. 313, and Miles v. Gorton, 2 Cr. & M. 504, S. C. 4 Tyrwh. 295, are authorities to shew that the partial delivery does not entitle the assignees in this case to maintain trover. New v. Swain, 1 Dan. & Lloyd, 193, shews that the casks, while lying at the wharf, were not to be considered as in the possession of the assignees. The order of October the 9th, 1830, was revocable: Gibson v. Minet, Ry. & M. 68. At any rate, the defendant, by giving the order of November the 2d, 1830, to the plaintiffs, undertook to them, that he was still owner of the goods; and he has affirmed their act by taking the proceeds from another party, and allowing the goods to remain in the hands of Moline.

[*68

Waddington for the defendant. If the letters objected to be held admissible, it will be on the ground that the court and jury ought to have known the position of all the parties, for the purpose of seeing how the question of stoppage in transitu stood. But, independently of these letters, the facts shew fully that the plaintiffs knew the right of the stoppage in transitu to have been determined. The general rule is that, where an entire quantity of goods is sent to a wharfinger under a single contract, to be delivered to the vendee, there the delivery of part determines the right of stoppage: Slubey v. Heyward, 2 H. Bl. 504; Hammond v. Anderson, 1 N. R. 69. And this principle was recognized in Crawshay v. Eades, 1 B. & C. 181, (see the judgments of Bayley, J., and Best, J., pp. 183, 185,) as not admitting of argument; though in the particular case, the decision turned upon *the delivery of part not having taken place in fact. Now the plaintiffs here were cognizant of such a delivery. Two casks were taken by Nyren and Wilson, from the custody of the plaintiffs, about the 20th October, 1830; and these were a part of the whole quantity which the order of October the 9th, 1830, had directed the plaintiffs to set apart for Nyren and Wilson. Besides, the language of the plaintiffs in their notices of the 3d of November and 10th of November, 1831, shewed that they knew there was no right of stoppage. Assuming, then, the fact of this knowledge, two questions arise. The first is, whether, under the circumstances, a promise by the defendant to indemnify the plaintiffs can be implied; if it can, it is not disputed by the defendant, that such a promise will have the same legal effect as an express one. The second question is, whether an express promise, in this case, would support an action.

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First, it has never been decided that a promise to indemnify will be implied where there has not been either a mistake as to facts, or a misrepresentation by the party charged. In Fletcher v. Harcot, Hutton 55; S. C. as Battersey's case, Winch, 48, the question arose after verdict, at which stage the fact of the promise could not be disputed. The question in Adamson v. Jarvis, 4 Bing. 66, also arose after verdict. Many of the remarks made in the judgment in that case were unnecessary to the decision. And the passage cited (4 Bing. 72.) with approbation from Lord Kenyon's judgment in Merryweather v. Nixan, 8 T. R. 186, that the decision there "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," is rather in favour of the defendant, than

against him; for here the plaintiffs, as has been shewn, knew that they [*70

were detaining what another person had a right to have. The true principle of the decision of Adamson v. Jarvis occurs in a later part of the judgment, (4 Bing. 73,) "that if a man, having the possession of property which gives him the character of owner, affirms that he is owner, and thereby induces a man to buy, when in point of fact the affirmant is not the owner, he is liable to an action." So in Humphrys v. Pratt, 2 Dow. & Clark, 288, there was a distinct assertion of a particular fact. Now, in the present case, there was nothing like a false assertion on the part of the defendant. The notion of implying such a promise seems to have been first raised in Farebrother v. Ansley, 1 Campb. 343; and there Lord Ellenborough, in the earlier stage of the case, says that there can be no contribution among joint wrong-doers; the wrong-doing there was only an employment of an auctioneer, by the sheriff, to sell goods; and the "trespass" (which is the expression used by Lord Ellenborough) was merely a conversion; and he said that, even supposing that the plaintiff had been employed by the defendants, it did not follow that they were bound to indemnify him. In Wilson v. Milner, 2 Campb. 452, a sheriff had seized goods in execution, for which the assignees of the defendant sued him in trover and recovered, and he then sued the execution creditor; but Lord Ellenborough said, that among joint tort-feazors there was neither contribution nor implied promise of indemnity, and the plaintiff failed as to that part of his demand, though, at the

*71] same time, he was allowed to recover the *fruits of the levy, which he had paid to the execution creditor under a mistake as to facts, as money had and received. In Langdon v. African Company, Prec. Chan. 221, (cited in Vin. Abr. Master and Servant, (G.) pl. 5,) a person in the service of the company had seized a ship, which was condemned for prize, and the cargo was accounted for to the company; but afterwards a freighter recovered a judgment against that person's executor; and the company was decreed in equity to indemnify the executor, though he was not allowed relief in equity against the freighter, because he might have defended himself at law;(a) from which it may be inferred that the executor could not have recovered at law against the company.

Secondly, even if there were an express promise, the Court would not allow the plaintiff to recover on it, for no express promise in consideration that another will commit a breach of duty is good in law; Selwyn's N. P. Assumpsit I, p. 61, (8th edit. 1831,) and note to Barber v. Fox, 2 Wms. Saund. 137 e, note (b). Now, the dealing with the goods otherwise than the plaintiffs were bound to deal with them, is a breach of duty, Streeter v. Horlock, 1 Bing. 34, where the Court said, p. 36, "Whenever, as in this case, an order is given previously to the delivery of goods to a carrier or other bailee, to deal with them, when delivered, in a particular manner, to which he assents, and afterwards the goods are delivered to him accordingly, a duty arises on his part, upon the receipt by him of the goods, to deal with them according to the order previously *72] given and assented to." It may be said here, that the order given *by the defendant to the plaintiffs was revoked; and it is true that, as between the vendor and his wharfinger, the former may absolve the latter from his duty, but he cannot relieve him from the duty to the vendee, previously cast upon him. It is to be observed, too, that the consideration laid is, not merely that the plaintiffs would deliver the goods to a third person, but that they would not deliver them to Nyren and Wilson. In Pitcher v. Bailey, 8 East, 171, the principle here contended for on the part of the defendant was acted upon, although there was an express promise. A banker is bound to pay a check which his customer, having funds at his bank, gives to a third person: Marzetti v. Williams, 1 B. & Ad. 415. Now, suppose a person were to go to the banker and promise to indemnify him for not paying the check, could an action be sup

(4) This reason is assigned in the marginal note; but it does not appear expressly in the body of the report.

ported on such promise? [TAUNTON, J. That might, or might not be a breach of duty. Lord DENMAN, C. J. Suppose, in the case you put, there were a doubt whether the banker was bound to pay to the particular customer. PATTESON, J. You put the case of a mere stranger promising to indemnify; that is very unlike the present case.] There does not appear to have been, in the present case, any dispute as to the right, nor any misrepresentation as to facts. Lastly, even if there be a legal promise to indemnify, it has been complied with, and the transaction is closed; for the defendant, in the letter of the 17th of November, 1831, offers to put eight casks into the hands of the plaintiffs, which the latter accept, and endeavour to make their bargain with the assignees; and, after the assignees have declined to accept the casks, the *plaintiffs do not again communicate with the defendant till the 21st of January, 1832, at which time the defendant was entitled to consider the transaction closed.

[*73

Chilton, in reply. It does not appear that the plaintiffs lost any time in communicating to the defendant the refusal of the assignees to accept the eight casks; the assignees were probably deliberating in the intermediate time. In Wilson v. Milner, 2 Campb. 252, the creditor does not appear to have directed the sheriff to seize the specific goods, but only the debtor's goods; here there is an express order to detain the goods in question. Even if a request would not imply a promise to indemnify, an order, which was given in the present case, must do As to the delivery, a delivery of part amounts to a delivery of all, only where there are circumstances to show that it is meant as such. [TAUNTON, J. No; on the contrary, a partial delivery is a delivery of the whole, unless circumstances show that it is not so meant.]

80.

Lord DENMAN, C. J. It is quite unnecessary to inquire whether there was a good defence to the action brought by Nyren and Wilson: perhaps that inquiry might not be advantageous to the plaintiffs; for, if there was a defence, it may be said that the plaintiffs ought to have made it. However, supposing there was a bonâ fide doubt, the plaintiffs had a right to act upon the instructions of the defendant, and detain the goods, and may come upon him for the consequences of their so doing. Taking this as a question of fact, I have no doubt that a jury at Guildhall would have said that the *parties un[*74 derstood that there was an engagement to indemnify. On the 2d of November, 1830, the brother of the defendant, by his authority, personally gave directions to the plaintiffs not to deliver the goods to Nyren and Wilson; and, on the same day, the plaintiffs received from the same authority a signed order to deliver to Elliott. If the jury had been asked, as commercial men, whether an indemnity was implied, they must have said that it was. Or, supposing the question to rest on the implication of law, why should not the law say that such an order carries an indemnity with it, if the act be not criminal? The case of Merryweather v. Nixan, 8 T. R. 186, seems to me to have been strained beyond what the decision will bear. The present case is an exception to the general rule. The general rule is, that between wrongdoers there is neither indemnity nor contribution: the exception is, where the act is not clearly illegal in itself. And Merryweather v. Nixan, 8 T. R. 186, was, besides, only a refusal of a rule nisi. I do not see the distinction between contribution and indemnity; but it appears to me that there is nothing to prevent either in this case. was perfectly competent to the defendant to say, "I claim the goods; do you keep them for me" and the plaintiffs were not bound to exercise their judg ment on this claim, though they were acquainted with all the facts. If they were acting bonâ fide, I cannot conceive what rule there can be to hinder the defendant from being liable for the risk. In Farebrother v. Ansley, 1 Campb. 345, Lord Ellenborough seems merely to have spoken of the general rule in Merryweather v. Nixan, 8 T. R. 186, without referring to the exceptions. In Wilson v. Milner, 2 Campb. 452, *he certainly did go to the point. That, however, is only a nisi prius decision; and if the effect of it was, that,

It

[*75

wherever it turns out that the parties are wrong, there can be no indemnity, I think the decision is not sustainable. In Adamson v. Jarvis, 4 Bing. 66, we have the observations of a learned person, familiar with commercial law. He says, 4 Bing. 72, "Auctioneers, brokers, factors, and agents, do not take regular indemnities. These would be indeed surprised, if, having sold goods for a man and paid him the proceeds, and having suffered afterwards in an action at the suit of the true owners, they were to find themselves wrongdoers, and could not recover compensation from him who had induced them to do the wrong.' Fletcher v. Harcot, Hutton, 55; S. C. as Battersey's case, Winch, 48, shows that there may be an indemnity between wrongdoers, unless it appears that they have been jointly concerned in doing what the party complaining knew to be illegal. The act there done was a very strong one; yet, though it turned out to be entirely wrong, the indemnity was allowed. Now, whether the promise there was express or implied, it would have equally been void if against public policy. That case seems to me to go to this full extent; that where one party induces another to do an act which is not legally supportable, and yet is not clearly in itself a breach of law, the party so inducing shall be answerable to the other for the consequences.

TAUNTON, J. I am of the same opinion. The principle laid down in Merryweather v. Nixan, 8 T. R. 186, is too *plain to be mistaken; the law *76] will not imply an indemnity between wrongdoers. But the case is altered when the matter is indifferent in itself, and when it turns upon circumstances, whether the act be wrong or not. The act done here, by changing the destination of the goods at the order of the defendant, was not clearly illegal, and, therefore, was not within the rule of Merryweather v. Nixan, 8 T. R. 186.

PATTESON, J. I am clearly of opinion, on the facts of this particular case, that the plaintiffs are entitled to recover. The objection to the reception of the letters is not much pressed; and, indeed, that question is quite immaterial, since the original order from Nyren and Wilson must have been received by the defendant, and that is the only part of the correspondence which is to the point now before us. The principal question is, whether the defendant undertook to indemnify the plaintiffs. No express undertaking is found; but I think that, if the facts had been put to the jury, they would have found such a contract. There could not be a plainer case of a command not to deliver than appears from what took place on the 2d of November, 1830. Then it is said that both are wrongdoers, but I think that is not so. Whether there was a right of stoppage in transitu, it is not material to determine. It is enough if there was any doubt. And surely the acquiescence of the plaintiffs in the order of the defendant to stop the casks would have been enough to support an express promise. The parties were not plainly wrongdoers, in the sense in which that word is *used in the cases referred to for the defendant. This was a claim *77] which might possibly be resisted; and an implied promise to indemnify may be inferred from the plaintiffs' consenting to resist. As to the supposed waiver on the part of the plaintiffs, the facts will not bear out the supposition; the eight casks, spoken of in the letter of the 17th of November, 1832, were not sent to the plaintiffs by way of indemnity, but in the hope that Nyren and Wilson might be persuaded to accept them.

WILLIAMS, J. I am of the same opinion. This case bears no analogy to those in which an indemnity is claimed for acts obviously unlawful, like breaches of the peace, nor to cases in which the conduct of the parties is in contravention of public policy. It is a mere interference with a particular contract. The defendant requests the plaintiffs to do an act which is at the time equivocal, as we may fairly infer from the arguments we have heard on the subject; at any rate, it was so far doubtful, that it could not be notoriously illegal. Then the defendant gives a written order, changing the destination of the goods, which are thereupon delivered in pursuance of that order. Here there is nothing