negligence on the part of the railroad company.BOWES V. HOPKINS, U. S. C. C. of App., Seventh Cir. cuit, 84 Fed. Rep. 767.

186. RAILROAD COMPANY- Receivers - Liability of Purchaser.-Possession of railroad by receiver after sale, confirmation, deed, and expiration of time within which the court ordered delivery of the property to the purchaser, being at the instance and for the benefit of the purchaser,is as agent of the purchaser, and the latter is liable for damages to shipper occurring during the same.-HOUSTON & T. C. R. Co. v. BATH, Tex., 44 S. W. Rep. 595.

187. RAILROAD COMPANY-Rights of Insurance Company. An insurance company, as intervener in an ac tion for damages from fire set by a railroad company, may make the allegations of plaintiff's petition, which sets forth the acts of negligence of defendant in causing the fire, that plaintiff is a corporation, and owned the property, part of its petition in intervention by way of reference, where it seeks to recover damages upon assignment of insured's right of action.-TEXARKANA & FT. S. RY. Co. v. HARTFORD INS. Co., Tex., 44 8. W. Rep. 533.

188. RAILROAD COMPANY Street Railroads-Negli. gence.-Evidence that, when a street car reached a point nearly opposite where the plaintiff's horses stood waiting for it to pass, they for the first time became frightened at the noise of the bell and car, and jumped forward across the track, immediately ahead of the car, so that it was impossible to stop it after the team started to run away, does not justify an inference that the motorman was negligent.-FLAHERTY V. HARRISON, Wis., 74 N. W. Rep. 360.

189. RAILROAD COMPANIES - Trespasser on Train.The only duty which a railroad company owes to a trespasser on its train is to refrain from injuring him will fully or wantonly or recklessly.-LEONARD V. BOSTON & A. R. R., Mass., 49 N. E. Rep. 621.

190. REAL ESTATE BROKER- Commissions.-Ordinarily a real estate broker, who, for a commission, under. takes to sell land on certain terms, and within a spec. ified period, is not entitled to compensation for his services unless he produce to the owner a purchaser, within the time limited, who is able and willing to buy upon the terms prescribed in the contract of employ. ment.-LANGHORST V. COON, Neb., 74 N. W. Rep. 257.

191. RECEIVER-Appointment.-A bill in equity to restrain trustees to whom property has been conveyed by an insolvent debtor, for the benefit of certain creditors, from disposing of the property, and for the ap pointment of a receiver, will not lie at the instance of other creditors, who have, in another action, sued the debtor, and garnished the trustees, when it does not appear that the trustees are insolvent, or that the property may be dissipated.-CITY NAT. BANK OF DALLAS V. DUNHAM, Tex., 44 S. W. Rep. 605.

192. REPLEVIN-Evidence.-Where property has been taken by distress, evidence is admissible, on behalf of one who seeks to replevin the property under a trust deed executed by the owner of the property, to show that no debt existed upon which a distress warrant could issue.-MASHBURN V. MATHIS, Miss., 23 South. Rep. 179.

193. RES JUDICATA Collateral Attack.-A money judgment recovered in a case in which the defendant sets up a discharge in bankruptcy is conclusive, in a collateral proceeding, both of the fact of indebtedness, and that the discharge did not discharge the particular demand sued on.-CARTER V. COUCH, U. S. C. C. of App., Fifth Circuit, 84 Fed. Rep. 735.

194. REVIEW-Writ of.-A petition for a writ of review is addressed to the discretion of the court, and no exception lies to an order granting or denying it.-STILLMAN V. DONOVAN, Mass., 49 N. E. Rep. 628.

195. SALES-Conditions.-Where one agreed to sell property as soon as a certain feed account owing him by the proposed buyer should be paid, the buyer became the owner of the property when he paid the

amount of such account, though in the meantime he had bought more feed, which he did not pay for, nothing having been said as to what items the payment was to be applied to.-WILLIAMS V. DEEVERS, Tex., 44 S. W. Rep. 587.

196. SALES-Illegality.-It is competent to show that an account stated originated in an illegal transaction. Where an illegal contract for the purchase of property is made with a broker in one place, to be carried out through his correspondents in another, and the purchaser and his broker dealt as principals, the purchaser cannot recover the profits of the purchase, although it is not shown that the purchase by the correspondents is illegal.-WAKEFIELD V. FARNUM, Mass., 49 N. E. Rep. 640.

197. SALES Ratification. Where defendants sold plaintiff's tobacco without his consent, and he, after knowledge of the sale, accepted and retained his share of the proceeds thereof, without notifying defendants of objection to the sale within a reasonable time, and until after a rise in the market, he was bound by the sale.-GIVENS V. CORD, Ky., 44 S. W. Rep. 665.

198. SALES-Wrongful Attachment-Conversion.-An insolvent executed a bill of sale of part of his stock of goods to the agent of creditors, in payment of their claims, and possession was given at the same time. It was agreed that an inventory should be taken, and whatever surplus there was after paying the debts was to be returned to the debtor. The agent of the creditors separated the goods taken by him from the balance of the stock, but, before they could be inventoried or removed, they were levied upon by the sheriff at the suit of other creditors: Held, as against such creditors, the sale was valid.-TRIPLETT V. MORRIS, Tex., 44 8. W. Rep. 684.

199. SLANDER-Complaint.-A complaint alleging that defendant said of plaintiff, a female never married, that she had a miscarriage, and was about to have another, thereby intending, and being so understood, to charge her with the crime of fornication, states a cause of action.-HIBNER V. FLEETWOOD, Ind., 49 N. E. Rep. 697.

200. SLANDER-What Actionable Per Se.-The words, "You are not a decent woman; you do not keep a respectable house," spoken to a woman, are slanderous per se.-LORANGER V. LORANGER, Mich., 74 N. W. Rep.

228.

205. TAXATION-Recovery of Payments.-Where a lot has been sold on foreclosure of an assessment lien for street improvements, and the owner redeems the prop. erty to avoid losing title pending a suit by him to have such judgment declared void, the payment of the money necessary to redeem is not voluntary, and he may recover it back on the judgment being adjudged void.-KEEHN V. MCGILLICUDDY, Ind., 49 N. E. Rep. 609. 206. TRADE MARKS-Injunction.-A bill on behalf of an association of journeymen hatters, against inanufacturers of hats, to enjoin them from using a counterfeit of the union label adopted by it, because the factory is not working under the jurisdiction of such association, cannot be sustained, where it does not allege that said association is the owner thereof, or that it is trading in, the hats or caps to which the label is applied, or has ever put them on the market.SCHMALZ V. WOOLEY, N. J., 39 Atl. Rep. 539.

207. TRIAL-Arguments of Counsel.-Where, in an action on a bond, defendant denies his signature, and states that he has consulted experts in reference thereto, but does not introduce them in evidence, it is within the discretion of the court to permit comment by counsel on such failure to produce.-MCKIM V. FOLEY, Mass., 49 N. E. Rep. 625.

208. TRIAL BY COURT-Findings of Fact.-Under Code Civ. Prac. § 832, which declares that, at the request of either party, a court which is trying a case without a jury shall state, in writing, the conclusions of fact sep. arately from the conclusions of law, such request should be made after the judgment is rendered, and within the time allowed for moving for a new trial.ALBIN CO. V. ELLINGER, Ky., 44 S. W. Rep. 655.

209. TRUSTS-Trust Deed-Enforcement.-A trustee of an implied trust, executing a trust deed providing that the land shall take the course prescribed by the trust, thereby so recognizes the trust that limitations will not run in his favor against the cestui que trust, though the trust deed is not his conveyance, because his name is not in the body of it.-BARNETT V. HOUSTON, Tex., 44 S. W. Rep. 689.

210. TRUSTS-Resulting Trust.-Where the consideration for an absolute conveyance of land is paid by third persons, the grantee takes the title in trust for such persons, by operation of law.-CONDIT V. MAXWELL, Mo., 44 S. W. Rep. 467.

211. TRUSTS-Resulting Trust-Deeds.-Where a pur. chaser obtained a complete title, and, after the vendor's death, he conveyed the land to a legatee of the vendor's claim for the price, in consideration of a release of all demands against the purchaser, the legatee did not receive the conveyance in trust for the estate, but took an absolute fee.-O'Connor v. VineYARD, Tex., 44 S. W. Rep. 485.

212. TRUSTS-Resulting Trust-Evidence to Establish. -Where it is established that the consideration for property conveyed to a wife was paid by her husband, no arbitrary rule exists as to the amount or kind of evidence required to overcome the presumption of fact that the conveyance was intended as a provision for the benefit of the wife alone; and satisfactory proof of a contemporaneous agreement that the wife should by will dispose of the property after her death in a certain manner is sufficient to raise a resulting trust in favor of the husband.-SMITHSONIAN INSTITUTION V. MEECH, U. S. S. C., 18 S. C. Rep. 396.

213. TRUSTS-Liability for Embezzlement by Attorney. A trustee is liable for his attorney's misappropriation of the trust funds where he permitted the attorney to collect money at various times during a period of over four years without making an effort to recover any of the sums, and retained the attorney after he should have known of his misappropriation of the trust funds.-MCROBERTS V. CARNEAL, Ky., 44 S. W. Rep. 442.

214. TRUST DEED-When Executed.-Where a deed conveyed to trustees property to be held by them in trust for the sole use and benefit of a married woman, the trust thus created upon the death of the husband,

even though it occurred prior to the act of 1866, became executed; and therefore, where the widow, be fore the passage of that act, conveyed the property to another person in trust for a child of hers, then in life, with remainder over to any child or children whom the latter might leave surviving her, her deed, though made without the intervention of the trustees named, was effectual to vest the title in accordance with the trust set out therein.-NEW SOUTH BUILDING & LOAN ASSN. V. GANN, Ga., 29 S. E. Rep. 15.

215. VENDOR AND PURCHASER-Action for Price.Where the vendee claimed that the vendor falsely rep resented that he had title, a charge that if the vendee ascertained the representations to be false, and repudiated the contract, and so notified the vendor, then the possession of the vendee, before making the con tract and after repudiating it, would not be the pos session of the vendor, was erroneous, as making the question of title depend on what the vendee ascer tained, and not on the actual facts regarding the title. -PUGHE V. COLEMAN, Tex., 44 S. W. Rep. 576.

216. VENDOR AND PURCHASER-Recovery of Price.Where a grantor included public land in his deed, he is estopped thereby to deny that he undertook to convey such land, and is liable on his warranty of title.HYNES V. PACKARD, Tex., 44 S. W. Rep. 548.

217. VENDOR AND VENDEE-Action for Price-Mis joinder. Where two notes, given for the purchase price of land, are owned by different persons, a joint action to recover on both notes, and to enforce a vendor's lien therefor, may be maintained by the two owners.-FOSTER V. LYONS, Ky., 44 S. W. Rep. 625.

218. VENUE-Right to Change.-A co-defendant cannot sever a suit so as to be sued in the county of his resi dence, where the other defendant is a resident of the county wherein the suit is brought.-WALHOEFER V. HOBGOOD, Tex., 44 8. W. Rep. 566.

219. WILLS-Contemplation of Marriage.-A will giv ing all of testator's property to a certain "single woman," and making her his executrix, does not ap pear to be made in contemplation of marriage, within St. 1892, ch. 118, providing that, if the will shows it was so made, the marriage will not act as a revocation.INGERSOLL V. HOPKINS, Mass., 49 N. E. Rep. 623.

220. WILLS-Defeasible Fee.-Where a devisee of cer tain land, under a will declaring that such devise was made "to her sole and separate use, and shall be free from the control of any husband she may marry, with remainder over to my children, in case she should die without issue," conveyed such land, her conveyance thereof passed the fee simple to her vendee, as against her surviving son, as she took, by virtue of such devise, a fee defeasible only in the event of her death without leaving issue.-LOUISVILLE TRUST Co. v. MAD DOX, Ky., 44 S. W. Rep. 632.

221. WILLS-Recordation-Devisees.-Rev. St. 1889, § 8899, which provided that a copy of every will devising lands should be recorded in the county where the land was situated, being directory merely, the failure to record a will, devising land as required, does not validate the title of one claiming by mesne conveyances from the original purchaser at a tax sale under a judgment void because rendered against the testator after his death. WOLF v. Brown, Mo., 44 S. W. Rep. 733.

222. WITNESS-Impeachment.-Where a witness testifies as to the value of services sued for, and on cross. examination states that he paid C a certain amount for similar services, evidence in contradiction that C was paid a less amount is admissible.-GLASGOW v. HI BREE, Tex., 44 S. W. Rep. 679.

223. WITNESSES-Competency.-A defendant does not waive the objection that plaintiff is incompetent to testify concerning dealings with her deceased agent, where a co-defendant, acting independently of her, in troduces him to formally prove his signature while dealing with such agent, and she does not object until he is asked to state the dealings in detail.-HOLLMAN V. LANGE, Mo., 44 S. W. Rep. 752.

Central Law Journal.

ST. LOUIS, MO., MAY 6, 1898.

The case of Justice v. Lairy, recently decided by the Appellate Court of Indiana, involves questions of special interest to attorneys as members of law partnership firms. It is held that where an attorney at law, who is a member of a law firm, becomes a circuit judge, the partnership is immediately dissolved, since, under the statute of that State, a circuit judge can neither directly nor indirectly practice law in any of the courts of the State, nor give counsel or advice in relation to any business in such courts; that where one member of a law firm becomes a circuit judge, it is immaterial, as affecting the question of dissolution, whether the other member of the firm consented to such withdrawal; that in an action by a member of a law firm to recover for work which had been completed after he had left the firm, the good will of the firm, though a proper item on accounting between the partners, cannot be considered; that where an attorney seeks to recover for work done in a case after his partner had left the firm, it is not an adjudication of partnership accounts to direct a certain sum to be paid for such services; and that where one member of a law firm has withdrawn, a contract of employment of such firm is of a divisible nature, under which a recovery may be had for services, of which the client has already had the benefit, but such withdrawing

partner can have no interest in fees for serv

ices rendered by the remaining member of the firm in concluding that particular business. As regards the main question in this case, the court while not declaring that a different rule should in every instance be applied in closing up the business of a law firm from that applied in other partnerships, yet says that there are sound reasons for holding that when an attorney at law, who is a member of a law firm, becomes a judge of a circuit or other court, at that instant the partnership is dissolved, and that a contract of employment in pending business in such a case is of a divisible nature, under which a recovery may be had for services of which the client has already had the benefit, but that such a per

son can have no interest in any fees for services rendered by the remaining member of the firm in concluding that particular business.

A decision affecting the validity of the United States statutes for the inspection of meat animals, alive and slaughtered, under the auspices of the Department of Agriculture, has been rendered by the United States District Court, Western District of Missouri, in the case of United States v. Boyer, 85 Fed. Rep. 425. The case arose upon the indictment of one Boyer for offering money and regular salaries to assistant meat inspectors to induce them to allow employees of a packing house to carry away condemned carcasses. The defendant's attorney demurred to the indictment on the ground that the carcasses which were inspected were not subjects of interstate commerce, and that therefore the government had no right to impose police regulations at the packing houses. His contention was sustained by the court, which said that the powers of congress were expressly granted or indicated by direct implication, and that the constitution made no provision for the passage of laws creating packinghouse inspection. Congress, the court held, regulated commerce with foreign nations among the several States and with the Indian tribes, but the killing of beef at packing houses could not be classed as interstate commerce, and congress had no power to interfere with matters that should be controlled by the States; in other words, that the specific duty of inspecting animals and carcasses in slaughter houses and similar establishments is exclusively a State and cannot be made a federal function. It was sought on the part of the prosecution to deduce the requisite authority of congress to legislate by implication from the "General Welfare Clause," and also the "Commerce Clause," of the federal constitution. The court, in holding that the "General Welfare Clause" does not furnish the necessary power, takes the broad ground, following Judge Story in his work on the constitution, that such clause 'contains no grant of power whatsoever, but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation."

NOTES OF IMPORTANT DECISIONS.

MALICIOUS PROSECUTION-LIABILITY OF MASTER FOR TORTS OF SERVANT.-In Little Rock Traction & Electric Co. v. Walker, 45 S. W. Rep. 57, decided by the Supreme Court of Arkansas, it was held that a street car company is not liable for the act of its conductor in prosecuting a passenger for violation of a city ordinance making it a misdemeanor for any person to ride on a street car without paying his fare, in the absence of express authority from the company to the conductor to institute such prosecution. The court took the ground that it will not be presumed that because a street car conductor has authority from his company to put people off his car for refusing to pay fare, he has also authority to arrest and prosecute them therefor.

PLEADING-ABATEMENT

ANOTHER ACTION PENDING-EFFECT OF DISMISSAL.-In Wilson v. Milliken, 44 S. W. Rep. 660, decided by the Court of Appeals of Kentucky, it is held that an action pending in a United States court may be pleaded in abatement to a subsequent action commenced between the same parties in the State court in the same district for the same subject-matter and the same kind of relief, since the jurisdiction of the United States court is domestic, in relation to the jurisdiction of the State court within the same territorial limits; that under common law pleading, there is no replication to a plea of former action pending, but nul tiel record, and that the objection of a former suit pending is removed by a dismissal of such suit, even after the plea in abatement in a second suit, where such second action was not brought for vexatious purposes. Du Relle, J., dissents from the conclusion of the court.

-

BORERS' LIENS · PRIORITY ASSIGNEES.-The Supreme Court of Alabama, in Drennan v. Mercantile Trust & Deposit Co., 23 South. Rep. 164, decide that employees of a private mining and coke manufacturing corporation, performing labor within six months prior to the appointment of a receiver under foreclosure of a mortgage covering all the property and income of the corporation, are entitled to be paid out of the gross earnings of the corporation into which such labor had entered for such time, coming into such receiver's hands; that where interveners, as assignees of the claims of laborers against a mining corporation, claim a lien superior to a mortgage upon the earnings of the corporation, their averment that about $40,000 was due the corporation, into which the labor had entered, when a receiver was appointed under foreclosure of the mortgage, is not objectionable because made on information and belief that an assignee of laborers' claims has the same right to assert priority over a mortgage upon the employer's property as the laborers had, and that a peti*ion of intervention, praying that notice of its fil

ing be given to the parties to the pending suit, is sufficient in respect of making parties to the intervention.

MUNICIPAL CORPORATION-DEFECTIVE SIDEWALK-ICE.-In McGowan v. City of Boston, 49 N. E. Rep. 633, decided by the Supreme Judicial Court of Massachusetts, it appeared that a water conductor discharging water across a sidewalk to a gutter had been in the same place for two or three years, and in the winter time water therefrom repeatedly froze on the sidewalk at that place. It was held that under the statute requiring cities to keep their ways reasonably safe, a city is liable for injuries to a person by his falling on ice which had been on the sidewalk at that place for three or four days. The court says: "The case principally relied upon by the defendant is that of Billings v. Worcester, 102 Mass. 329, where water ran from a rain conductor outside the line of the street upon the pavement inside this line, and froze, forming a slippery place, and the town was held by a divided court not to be liable. This was put upon the ground that under Gen. St. ch. 44, § 22, the liability of towns was a special and peculiar one; that it was not based upon the rules of reasonable care, and except in regard to notice, which required reasonable notice to the town if the defect had not existed for 24 hours, the liability of the town was not at all affected by the question of its diligence or notice; and it was said of this rule: 'It permits no excuse, not even "the act of God or the public enemy. It was held that the statute did not apply to mere smooth ice, whatever its origin. In Stanton v. Springfield, 12 Allen, 566, it was held that mere smooth ice did not constitute a defect in a way, and it was said by Mr. Justice Hoar: The formation of thin, but slippery, ice, in our climate, is an effect which may be so suddenly and extensively produced, and which may continue or be renewed for such a length of time, that it would be extremely difficult, if not impossible, for towns to make adequate provision against it.' A previous decision of the court was explained in this way: 'In Hall v. Lowell. 10 Cush 260, two conductors from the roofs of two houses came together, and, by reason of their not being tight, let upon the sidewalk water, that often froze there in the night, and continued for several weeks together. There was therefore a special cause for the formation of ice at the spot, against which the city might have guarded.' We have, however, no occasion to consider whether the case of Billings v. Worcester was correctly decided. While the general rule established by it was subsequently followed in McAuley v. Boston, 113 Mass. 503, towns were held liable for a defective slope covered with smooth ice (Pinkham v. Topsfield, 104 Mass. 78), and for a gutter running across the sidewalk (Fitzgerald v. Woburn, 109 Mass. 204). We assume, however, that, while the general statutes were in force, the rule stated in Billings v. Worcester was the law of the common

wealth. But by chapter 234, St. 1877, sections 122, ch. 44, Gen. St., were repealed; and, by sections 1 and 2 of the new statute, towns and cities were required only to keep their ways reasonably safe, and the provision in regard to 24 hours was omitted. The provisions of St. 1877 were incorporated in Pub. St. ch. 52, §§ 1, 18, which were in force when the accident in this case happened. In Post v. Boston, 141 Mass. 189, 4 N. E. Rep. 815, the distinction between the provisions of the general statutes and those of St. 1877, ch. 234, were clearly pointed out by Mr. Justice C. Allen, who, speaking of the latter statute, said: 'In the first place, it did away with the absolute liability imposed on towns where the defect had existed for twenty-four hours, and exonerated them from liability in all cases where there had been no lack of proper diligence on their part. And it substituted therefor a liability for an injury or damage received through a defect which might have been remedied, or an injury or damage which might have been prevented, by reasonable care and diligence on the part of the town, if such town had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence on its part, although the defect had not existed for any particular length of time, and although the town had no actual notice thereof." In that case a cesspool and its cover, in a highway, were so constructed that, in a heavy rain, the water which would ordinarily flow into the cesspool would lift off the cover, and leave a hole, into which a person might fall, and this liability to become defective was held to be a defect, under Pub. St. ch. 52, § 18, although a different rule was established in a case under the general statutes. Monies v. Lynn, 12 Mass. 165, 171. In Blake v. Lowell, 143 Mass. 296, 9 N. E. Rep. 627, where the defect was an accumulation of ice and snow upon a sidewalk, which had accumulated in the vicinity of a conductor extending from the eaves of a building abutting upon a sidewalk to a gutter across a sidewalk, the defendant requested a ruling that the origin of the ice was not material on the question whether the ice constituted a defect. It was found as a fact that the ice was a defect without reference to its origin, and therefore the request of the defendant became immaterial. It was, however, said by Mr. Justice Devens, in delivering the opinion of the court: We do not intend to intimate that, even if material, the request should have been granted, especially in view of St. 1877, ch. 234, § 2 (Pub. St. ch. 52, § 18). In Adams v. Chicopee, 147 Mass. 440, 18 N. E. Rep. 231, it was held that if smooth, level, and slippery ice is formed upon the surface of a sidewalk. or in depressions therein, by reason of its improper construction or of its condition, a defect may be found to exist such as will render a town liable for an injury caused thereby. It is said by Mr. Justice Knowlton, in delivering the opinion of the court: In the decision in Billings v. Worcester, 102 Mass. 329, there is nothing in conflict with this doctrine, although some of the reasoning in the opinion

seems to lead away from it; but through the change in the law by the enactment of the statute of 1877, ch. 234, that reasoning has become inapplicable to recent cases.' See Olson v. Worcester, 142 Mass. 536, 8 N. E. Rep. 441; Stoddard v. Inhabitants of Winchester, 157 Mass. 567, 573, 32 N. E. Rep. 948. As the law was at the time of the accident, we are of opinion that the cases we have cited show that it was the duty of the city to use reasonable care and diligence, not only to remedy defects, but to guard against causes existing within the limits of the way which were likely to produce such defects. By St. 1892, ch. 419, §§ 66, 136, 137, the city of Boston had full power to prevent water conductors on houses from discharging water upon sidewalks. In Hughes v. City of Lawrence, 160 Mass. 474, 36 N. E. Rep. 485, and Cronin v. City of Holyoke, 162 Mass. 257, 38 N. E. Rep. 445, the water came from a point outside the limits of the way, and they have no application to the case before us. Exceptions overruled."

LANDLORD AND TENANT NEGLIGENCE BREACH OF CONTRACT TO REPAIR.-It is held by the Supreme Court of New York, in Schick v. Fleishhauer, that a tenant is not at liberty, if the landlord fails to keep his contract to repair the premises, to permit them to remain in an unsafe condition, and stay there at the risk of receiving injury, and then recover as for negligence against the landlord for injuries suffered. The court said in part: "The only relation between the parties is that of landlord and tenant. It is well settled in this State that no duty rests upon the landlord to repair premises which he has demised, or to keep them in tenantable condition, and that there can be no obligation to repair except such as may be created by the agreement of the landlord so to do. Witty v. Matthews, 52 N. Y. 752. Where such agreement has been made, the measure of damages for the breach of the contract is the expense of doing the work which the landlord agreed to do, but did not. A contract to repair does not contemplate that, as damages for the failure to keep it, any personal injuries shall grow out of the defective condition of the premises; because the duty of the tenant, if the landlord fails to keep his contract to repair, is to perform the work himself and recover the cost in an action for that purpose, or upon a counterclaim in an action for the rent, or, if the premises are made untenantable by reason of the breach of the contract, the tenant may move out and defend in an action for the rent as upon an eviction. Myers v. Barnes, 35 N. Y. 269; Sparks v. Bassett, 49 Super. Ct. Rep. 270; 2 Taylor on Landlord & Tenant (8th ed.), p. 381. The tenant is not at liberty, if the landlord fails to keep his contract to repair the premises, to permit them to remain in an unsafe condition and to stay there at the risk of receiving injury on account of the defects in the premises, and then recover as for negligence for any injuries that he may suffer. Where the sole relation between two parties is contractual in its nature, a breach of the