
    *Peck against C. Ellis, impleaded with Ellis and Rowland.
    [* 131 ]
    Equity will not interpose to enforce a contribution between wrong-doers; especially where they do not stand in equal right, or there is not equal equity between them.
    
      April 11th.
    THE petition of the defendant Caleb Ellis stated, that, on the 20th January, 1815, it was decreed, in this suit, that the petitioner, and Isaac Rowland, defendant, should convey to the plaintiff, in fee, their right to an undivided moiety of a lot of land, mentioned in the plaintiff’s bill, and that it be referred to a master to ascertain the value of the saw logs and timber, cut or carried away from the lot by the defendants, or either of them, and that the defendants should pay such value, with the costs of suit. That, on the 12th August, 1815, the master reported that the value of the logs and timber taken and carried away by Rowland, was 890 dollars and 75 cents, and the value of the other timber carried away was 75 dollars and 25 cents, amounting in the whole to 966 dollars. That this report was confirmed, and an execution issued in favor of the plaintiff, against C. Ellis, and Roivland, for that sum, with the costs, exceeding 400 dollars. That the execution was levied on the property of the petitioner, which was advertised for sale by the sheriff of Saratoga, on the 20th oí April, 1816; that Rowland resided in the same county, and had sufficient property. That on the 17th March, 1816, Rowland, as the plaintiff admitted, had paid him the amount of the execution, and that the plaintiff paid the same to James Thompson, Esq., for a debt, and also assigned over the execution to him. That this assignment, as the petitioner was informed, was made for the benefit of Rowland, and the *sheriff had been directed to collect the whole amount of the petitioner, though he ought not to be liable for more than his proportion of the costs of the suit, provided Rowland was able to pay the residue. The petitioner prayed for an order directing the sheriff to collect the whole 966 dollars out of the property of Rowland, and just proportion of the costs only from the petitioner, &c.
    [ * 132 ]
    [ * 133 ]
    The affidavit of Rowland stated, that, on the 31st of October, 1808, he purchased of C. Ellis, 200 pine trees, for sawing, which stood on the lot mentioned, which contained 200 acres; that Ellis affirmed that one half of the lot belonged to him; that the price of the trees was 100 dollars, part of which sum had been paid. That C. Ellis showed Rowland where the trees were to be cut, none of which were removed before the 1st of December, 1808; and on that day Rowland purchased of C. Ellis his moiety of the lot, for 200 dollars, and C. Ellis gave him a deed accordingly, with warranty, and also a covenant to indemnify Rowland against what C. Ellis alleged to be an unfounded claim of his brother-in-law to the lot. The contract, which was produced, recited the purchase, and that Peck, the plaintiff, had threatened that if any person cut timber on the lot, or occupied, he would file a bill in chancery for an injunction; and thereupon C. Ellis covenanted, that he would indemnify Rowland against the said bill or injunction, and of and from all costs and charges arising in consequence thereof, and would defend the suit in chancery, at his own proper costs and charges; and that if the title proved bad, the bond given for the purchase money should be void, and any money paid thereon be refunded. That Rowland, by the agreement, was to have the 200 trees clear, on paying the price of the land; that after the purchase, he, Rowland, continued to cut trees from the land as owner; that Thompson held the assignment of the decree and execution, as trustee, for the benefit of Rowland, and in order to collect the money of C. *Ellis; that any money paid by R. to T. had no relation to the decree or the assignment. That C. Ellis had said to the sheriff that he had no property to satisfy the execution; and Rowland said, that if he paid any part of the damages or costs, under the decree, he was assured the money would be lost.
    The answers of C. Ellis, and J. Rowland, to the bill of the plaintiff, were also read at the hearing of the petition. The former said he was ignorant of the purchase of the lot by the plaintiff, except from vague reports. That the deed to him was executed without any knowledge of any claim of the plaintiff. That when he, afterwards, sold to Rowland, he informed him, that he had heard that the plaintiff had made some pretensions to the lot, but that he, C. E., believed he had abandoned them.
    
      Woodworth, for the petitioner.
    
      Henry, contra.
   The Chancellor.

Though the present application be by nature a by one against another, for contribution, or to have the damages in the execution equally apportioned and levied.

[ * 134 ]

By. the decree in the original suit against these parties, as co-defendants, they were made jointly responsible for the damages assessed for cutting timber, and the'decree on that point appears to have been taken as of course, without objection. There was no question raised as to the joint responsibility of the defendants. The petition is, therefore, to be considered as presented in a case in which the defendants were equally and justly chargeable, as it respected the plaintiff, with the damages for taking his property wrongfully and under fraudulent pretences, without title. It is always immaterial, in such cases, as it regards the rights of the plaintiff, which of the defendants appropriated *to himself the greater part, or the whole of the emoluments of the trespass. Each is answerable for the entire damage.

The application proceeds upon the admission of this principle, and of the correctness of the decree, and it is made for an apportionment of the damages, between the defendants, in respect to each other, and on the ground that the timber was, in fact, taken and enjoyed exclusively by Rowland.

But it appears to me, that as well on the special circumstances of this case, as on general principles, the motion ought not to be granted.

[ * 135 ]

1. Rowland, purchased 200 pine trees for saw logs, of C. Ellis, in October, 1808, for 100 dollars, and paid him part of the money; and when he purchased the land, in December following, the residue of the purchase money due for the trees was, by agreement, merged in the price of the land. There is, then, independently of any other consideration, a just claim by Rowland upon Ellis, for indemnity against the decree, to the amount of the trees so purchased and paid for. But Rowland produces a covenant of indemnity given at the time of his purchase, and for the express purpose of meeting this anticipated claim of Pede. The covenant recites that Peck had threatened that if any person should cut timber, or occupy the lot, he would file a bill in chancery, and obtain an injunction, and it then provides that Ellis will indemnify Rowland “ from the said bill of injunction, and of and from all costs and charges arising in consequence thereof, and will defend the said suit in chancery at his own proper costs and charges.” I cannot perceive any equitable claim that Ellis can have to the interference of this Court in his favor, as to the costs of the suit in this Court. They are expressly within his covenant of indemnity; and the claim of Rowland to indemnity under this covenant, for the damages assessed by the decree, for using the timber, appears to me to be strongly supported. The covenant seems to have been intended against the suit at large. *It was against11 the bill or injunction.” It was from “ all charges arising in consequence thereof.” It was “ to defend the suit in chancery at his own costs and charges.” Rowland was a purchaser for a full consideration. He had heard of the claim of Peck, and he was assured by Ellis that it was utterly groundless ; but, for greater caution, he took not only a deed with a general warranty, but an express covenant of indemnity against any suit in chancery founded on that claim. Rowland intended to be saved harmless in the use and enjoyment of the land, and of this very timber. The covenant expressly anticipated a charge for the cutting of timber, and in the spirit, if not under the legal construction, of that instrument, he ought to be protected by Ellis from the damages awarded by that decree. It is, at least, a case so favorable for Rowland, that I do not think this Court ought to interfere specially, and direct an apportionment of the damages between the two defendants to be made, in levying the execution.

2. These are grounds peculiar to this case, and they are very much strengthened by general considerations applicable to every case of this kind; for the defendants are charged with the value of the timber in the character of joint trespassers taking the mesne profits.

Caleb Ellis purchased the land of James Ellis fraudulently, and with intent to defeat the prior equitable title of Peck. When he sold the land to Rowland, he was conscious of the fraud, and yet he assured Rowland, that the claim of Peck was unfounded and abandoned. Rowland was no party to the original fraud, and might not have believed it. Ellis was guilty of fraud, both as it respected Peck and Rowland. If both defendants were chargeable with fraud, as they undoubtedly were, yet there was all possible difference in the demerit of each, and in the nature and degree of the fraud imputable to both. The fraud in Rowland was legal, or constructive fraud; but in Ellis it was actual fraud, in the first instance, and, afterwards, in the *deception practised upon Rowland, by which he was led to purchase the land, and to use the timber as his own, when the right was in another. I doubt whether a Court of equity has ever aided one tortfeasor against another, in the apportionment of damages jointly assessed, even though they stood equal in wrong; but I am satisfied the Court has never interfered where the party seeking its aid is solely and deeply guilty, and was the cause of leading the other defendant to buy an unsound title. If any interference was proper, in this case, it would be to charge the damages exclusively upon Ellis; though where several persons are each strictly chargeable with damages, it might impair the just remedy of the injured-party to limit the recovery to any one defendant.

Contribution is bmween °difendants stand-1j°rem miuah

Thereisnocontween°n joint trespassers at law'

nor, it seems, in eqmty.

The principle of contribution is equality in bearing a common burden; but equality is not equity between two defendants who stand on such different ground. They must stand in cequali jure, or the rule does not apply. A Court of law will now sustain an action for contribution between two debtors or sureties, under an implied assumpsit arising from the knowledge and operation of the general principle that equality is equity. But a Court of law will not sustain an action between two joint trespassers. In Merryweather v. Nixan, (8 Term Rep. 186.) it was held, that if A. recover in tort against B. and C., and levy the whole damages on one, that defendant cannot sue the other for contribution. I am not apprized of any decision in chancery to the contrary, In Philips v. Biggs, (Hard. 164.) a bill was filed by one of the sheriffs of Middlesex against the other, for contribution, in a case where the damages had been levied on one for an escape suffered by both, and the Court of Exchequer considered it a case of the first impression, and doubted, and no decision appears to have been made. But in the late case of Lingard v. Bromley, (1 Ves. & Beame, 117.) the master of the rolls observed, that where entire damages are recovered against *several defendants for a tort, a Court of justice will not interfere to enforce contribution among the wrong-doers. In Deering v. Earl of Winchelsea, in the exchequer, (2 B. & Puller, 270.) Lord Ch. B. Eyre gave a very able opinion on this subject. He seemed to admit, that if one defendant was the author of the loss for which contribution was claimed, he was not entitled to any, because it was the maxim that a man must come into equity, in respect to such a demand, “ with clean hands.” He placed the whole doctrine of contribution on the ground that the parties were in equal right, and had equality of equity in respect to the burthen. But the present case is not within the reach of this doctrine; for the original purchase of the 200 trees, and the subsequent covenant of indemnity against the suit, and the actual fraud of the one defendant, which was the cause of the decree, are facts which destroy the pretence of any equality of equity between the defendants, and show that the whole charge ought, in justice, to rest on the petitioner. There are many cases in which persons may be all liable to a third party, and yet ought not, in equity, to bear the burthen equally among themselves. (1 Ves. & Beame, 117.)

[ *137 ]

[ * 138 ]

The civil law, like the decision in the K. B. which I have cited, would not allow any action for contribution between defendants condemned in damages for a joint offence, or cause of action arising ex delicto. The defendant on whom the whole was levied had no remedy over. The law would not recognize any of the rights or obligations of copartnership in an association for mischief. Si ex dolo communi conventus prasstiterit tutor, ñeque mandandce sunt actiones, ñeque utilis competit: quia proprii delicti pcenam subit: quce res inr dignum eum fecit, ut a cceteris quid consequatur doli particibus: nec enim ulla societ'as malefciorum, vel communicatio justa damni ex maleficio. (Dig. 27. 3. 1. 14.) Nec societas, aut mandatum flagitiosce rei, ullas vires habet. (Dig. 18. 1. 35. 2.) But Pothier *(Trait. des Obi. No. 282.) considers these as rather scrupulous principles of the Roman lawyers, and says, that the French law is more indulgent, and gives an action to one co-trespasser who has paid the whole debt, and he puts it on the same principle as a contribution between co-sureties. I doubt much of the wisdom of this indulgence. ' Public policy speaks loudly against it. There would be no safety to property if a large combination of trespassers were entitled to the assistance of Courts of justice in the apportionment of the damage. The knowledge that each individual is responsible for the whole, constitutes the great check, Where the contribution is asked for between parties jointly convicted of fraud, I should then, at least, prefer the doctrine of the civil law, and the sanction it has received from the stern, unaccommodating morality of Lord Kenyon. It appears to me more congenial with the spirit and genius of a Court of equity, not to lend an encouraging aid to parties, to apportion between them, by a nice and calculating hand, the penalty of their injustice. But it is evident that the rule even of the French law applies only to the case of two defendants charged with a common debt arising ex delicto, and standing equal in the transaction in relation to each other. On no other possible ground can the equity of contribution arise.

In every view, therefore, which I have taken of this case, I am of opinion that the motion ought to be denied.

Petition refused. 
      
      
         Evans, in his notes to a translation of the treatise of Pothier, gives a preference to the French law on this point, and considers the Roman jurists as over scrupulous; but he seems not to advert to the policy of the rule of the Roman and English law. (2 Evans’s Poth. 80.)
     