contract does not usually create a liability as for negligence. In such a case the liability of one of the parties to the other because of negligence is based either on the breach of some duty which is implied as the result of entering into the contractual relation, or from the improper manner of doing some act which the contract provided for; but the mere violation of a contract, where there is no general duty, is not the subject of an action of tort. Courtenay v. Earle, 10 C. B. 83; Tuttle v. Gilbert Manufacturing Co., 145 Mass. 169. As the result of this principle, we conclude that the plaintiff cannot maintain an action against the defendant to recover the damages which she has suffered on the ground of the defendant's negligence in failing to keep his contract to repair. Such is the weight of authority in this country. Miller v. Rinaldo, 21 Misc. Rep. 470; Tuttle v. Gilbert Manufacturing Co., supra; Flynn v. Hatton, 43 How. Pr. 333; Spellman v. Bannigan, 36 Hun, 174."

In substantial accord with such New York case is the recent decision of the Supreme Court of New Jersey in Clyne v. Homes, 39 Atl. Rep. 767. It was therein held that, in the absence of a contract. a landlord is not bound to repair, so as to be liable to a member of the lessee's family injured by the falling of a mantelpiece; that a promise of the landlord to the tenant and a member of the latter's household, made after the letting, to make repairs, is without consideration; and that though a lease require the landlord to make repairs, a member of the tenant's family injured by the falling of a mantelpiece out of repair, cannot recover therefor from the landlord. The following is from the opinion of the New Jersey court:

"These propositions may be considered as settled: First. That an allegation of duty is insufficient; that the facts and circumstances from which the duty arises must be set out in the declaration, and the sufficiency of the pleading must be determined from the facts from which the duty is deducted. Safe Co. v. Ward. 46 N. J. Law, 19; Rader v. Township of Union, 43 N. J. Law, 518; Brown v. Mallett, 5 C. B. 599; Seymour v. Maddox, 16 Q. B. 326. Second. On demise of a house or lands, there is no contract or condition implied that the premises shall be fit and suitable for the use for which the lessee requires them. Murray v. Albertson, 50 N. J. Law, 167, 13 Atl. Rep. 394; Naumberg v. Young, 44 N. J. Law, 331, 344; Mullen v. Rainear. 45 N. J. Law, 520, 523; Heintze v. Bentley, 34 N. J. Eq. 563; Jaffe v. Harteau, 56 N. Y. 398; Tayl. Landl. & Ten. (7th ed.) sec. 382. Bowe v. Hunking, 135 Mass. 380, was a suit brought by the plaintiff, as administrator of his wife, to recover damages for personal injuries occasioned by a defective stairway in a tenement house owned by the defendants, of which she and her husband were tenants. The premises were rented by the husband as tenant at will. There was a defect in the trend of the back stairs, and, the wife coming down this flight of stairs in the

evening, the trend gave way, and she was thrown down and received the injuries complained of. The trial judge ruled as matter of law that the action could not be maintained. The court en banc sustained the ruling. Field, J., in delivering the opinion of the court, said: "There is no warranty implied in the letting of an unfurnished house or tenement that it is reasonably fit for use. The tenant takes an estate in the premises hired. and the persons who occupy by his permission or as members of his family cannot be considered as occupying by the invitation of the landlord, so as to create a greater liability on the part of the landlord to them than to the tenant. The tenant is in possession, and he determines who shall occupy or enter the premises.' In Robbins v. Jones. 15 C. B. (N. S.) 221, the defendant was the owner of certain house and premises, and let them to certain persons, to-wit, Smith Allen Jeffs and Augustus Jeffs. On the premises was a certain area adjoining and under a footway leading to the property of the defendant. Whether the footway was a private way to the houses, or a public footway over the premises demised, was a disputed question of fact. Robbins, the plaintiff, on the 10th of February, 1862, was lawfully passing over and along the footway, and, by reason of its dilapidated, dangerous and unsafe condition. he was thrown into the areaway, and severely hurt and injured, from which injuries he died, and the suit was brought by his administratrix, and resulted in a verdict for the plaintiff. This verdict was set aside, and a nonsuit was entered. The court of common bench, in its opinion, delivered by Earle, C. J., used this language: It is for the plaintiff to make out that the defendant has been guilty of the breach of some duty which he owed to the deceased, and that thereby the accident was occasioned. Whether he has done so may be considered under the following heads: (1) If the passage over the area be considered as a private way to the houses, then the reversioner is not liable, but the occupier. A landlord who lets a house in a dangerous state is not liable to the tenant's customers or guests for accidents happening during the term; for, fraud apart, there is no law against letting a tumbledown house, and the tenant's remedy is upon his contract, if any. In this case there was none-not that that circumstance makes any difference in our opinion.' The other heads under which the case was considered are not relevant to this pleading. In Mullen v. Rainear, supra, the plaintiff was tenant for years of the defendant. While he and his wife were carrying a stove on the balcony, which the tenant had a right to use in connection with the leased premises, the balcony broke down. and by the fall the wife of the plaintiff was injured. The supreme court reversed a judgment in favor of the plaintiff below, on the ground that the court erred in refusing to instruct the jury that the landlady was not bound to make repairs to the balcony unless some agreement on her part was shown. Mr. Justice Dixon, in delivering the

opinion of the court, said: "There is no implied duty on the owner of a house which is in a ruinous and unsafe condition to inform a proposed tenant that it is unfit for habitation, and no action will lie against him for an omission to do so, in the absence of express warranty or deceit. An obligation on the part of the landlord will not be implied that he shall make substantial repairs because of the premises being in a dangerous condition.'

"The exemption of a landlord from liability for injuries sustained by a tenant by reason of the ruinous condition of the demised premises, where there is neither a contract nor fraud, applies as well to members of the family of a tenant as to those who are on the premises by his consent. The subtenant, servant, employee, or even customer of the lessee, is under the same restriction as the lessee himself; because entering under the tenant's title, and not by any invitation, express or implied, from the owner, they assume a like risk. Tayl. Landl. & Ten. (7th ed.) sec. 175a.”

THE JOINT AND SEVERAL LIABILITY OF TORT-FEASORS, AND THEIR RELEASE.

The rule is that he who injures another is liable in damages for such injury, and all who are present and encourage others in doing a wrong, causing injury, are liable for the injury caused the same as if done or inflicted by themselves. And if the injury is done by one under the instructions or by contract with another, such person will be liable, though absent 2 But after the wrong has been done, the mere subsequent approval of it will not create a liability, unless it was done in the interest of the one approving it.3 1st. Joinder of Parties.-When the action is brought for torts founded on joint contract, or ownership, all the parties must be joined as defendants. If, however, they are acting jointly, or by concert in the matter, they may be jointly or severally sued for the full damage. But if their acts are not joint

1 Brown v. Perkins, 1 Allen, 89; Little v. Tingle, 26 Ind. 168; Frontz v. Lenhart, 6 Smith (Pa.), 365; U. S. v. Ricketts, 1 Cranch C. C. 164; Cooper v. Johnson, 81 Mo. 483.

2 Anderson v. Dickie, 26 How. 105; Baxter v. Warner, 6 Hun, 585; Jennings v. Van Schaick, 13 Daily, 438; Fow v. Roberts, 108 Pa. St. 489; Jarvis v. Baxter, 52 N. Y. 109; Wall v. Osborne, 12 Wend. 39.

3 Cooper v. Johnson, 81 Mo. 483; Grund v. Van Vleck, 69 Ill. 478.

Weall v. King, 12 East, 452; Low v. Mumford, 14 Johns. 426; Mitchell v. Tarbutt, 5 T. R. 65.

Sloggy v. Dilworth, 38 Minn. 179; Williams v..

except as to the result, there being no agreement or concert of action between them, a joint action will not lie. Each must be sued

7

for the damages he has individually caused, and not otherwise. In the case of Schuylkill Nav. & Ry. Co. v. Richards, the Supreme Court of Pennsylvania say: "The plaintiff's intestate was the owner of a dam and water power upon the Little Schuylkill river. In process of time, from 1851 to 1858, the basin of the dam became filled with coal dirt, washed down by the stream from the mine above, of several owners, upon Little Schuylkill, Panther Creek and other tributaries. They were separate collieries, worked independently of each other. The plaintiff seeks to charge the defendant below with the whole injury caused by the filling up of his basin. ** Without concert of action no joint suit could be brought against the owners of all the collieries, and clearly this must be the test; for if the defendants can be held liable for the acts of all the others, so each and every other owner can be made liable for all the rest, and the action must be joint and several. But the moment we shall find them jointly sued, the want of concert and the several liability of each would be apparent."'8 However, there seems to be an exception to this rule, for example, in the case of carriers. The non-carrier may be joined with the carrier in a suit for damages caused by a collision, and both held responsible, if both are negligent. The Supreme Court of Minnesota,

Shildon, 10 Wend. 654; Bard v. Yohn, 26 Pa. St. 482; Chipman v. Palmer, 77 N. Y. App. 51; Wallace v. Drew, 59 Barb. 413; Guille v. Swan, 19 J. R. 381; Wood v. Sutcliffe, 8 Eng. L. Eq. 217; Clark v. Bales, 15 Ark. 452; Woodbridge v. Conner, 49 Me. 353; Calder v. Smalley, 66 Iowa, 219; Nagel v. Mo. Pac. Ry., 75 Mo. 653.

6 Chipman v. Palmer, 77 N. Y. 51; Sillick v. Hall, 47 Conn. 260; Bard v. Yohn, 26 Pa. St. 482; Schuylkill Nav. & Ry. Co. v. Richards, 57 Pa. St. 142; Seely v. Alden, 61 Pa. St. 302; Auchmutz v. Ham, 1 Denio, 495; Van Steinberg v. Tobias, 17 Wend. 562; Partenheimer v. Van Order, 20 Barb. 479; Wallace v. Drew, 59 Barb. 413; Sloggy v. Dillworth, 38 Minn. 179; Miller v. Highland Ditch Co., 25 Pac. Rep. 550; Blaisdell v. Stephens, 14 Nev. 17; People v. Mining Co., 66 Cal. 138.

7 57 Pa. St. 142.

8 Russell v. Tomlinson, 2 Conn. 206; Adams v. Hall, 2 Vt. 9; Van Steinberg v. Tobias, 17 Wend. 562; Buddington v. Sherer, 20 Pick. 477; Auchmuntz v. Ham, 1 Denio, 495; Partenheimer v. Van Order, 20 Barb. 479.

9 Railway Co. v. Harrell, 58 Ark. 454; Mathews v. Del. L. & W. R. Co., 56 N. Y. 34; Colegrove v. Ry. Co., 20 N. Y. 492; Cooper v. Trans. Co., 75 N. Y. 116;

in the case of Flaberty v. Ry. Co.,10 say: "If the collision was caused directly by the concurrent negligence of both companies, both are responsible. The collision and the injury having been caused directly by the concurrent wrongful acts or omissions of both defendants, all tending to produce the one resulting event complained of, the action against them jointly is maintainable, though there was no concert of action or common purpose between them."'" The court, in the case of Pugh v. Ry. Co.,12 say: "So, if an injury is produced, not by design, but by the concurrent acts of negligence of two or more persons, although their acts were distinct and separate, still they incur a joint and separate liability for the injury which they produce."'18 The Supreme Court of the United States, in the case of Railway Co. v. Cummings,1 held, that: "In the instruction given we find no error. It was, in effect, that if the negligence of the company contributed to, that is to say, had a share in producing the injury, the company was liable, even though the negligence of a fellow-servant of Cummings was contributory also. If the negligence of the company contributed to, it must have necessarily been an immediate cause of the accident, and it is no defense that another was likewise guilty of wrong." The general rule, that there must be concert of action on the part of defendants before they can be properly joined in the same action, is agreed to by all the authorities. But the rule, as given, in Flaberty v. Ry. Co. and Pugh v. Ry. Co., supra, seems not to be in exact harmony with the general rule. The reasons given by the authorities, in this class of cases, are not altogether plain. Some of them base the right of joinder on the ground of negligence. But it is right hard to see just why, on that ground two railway companies may be joined as de fendants, for an injury they cause; and hold that the parties who filled up the "dam," in Railway Co. v. Schacklet, 105 Ill. 364; Carterville v. Cook, 129 Ill. 152; Cuddy v. Horn, 46 Mich. 596; Railway Co. v. Cummings, 106 U. S. 700.

10 39 Minn. 328.

11 Colegrove v. Ry. Co., 75 Am. Dec. 418; Cuddy v. Horn, 10 N. W. Rep. 32; Tompkins v. Ry. Co., 4 Pac. Rep. 1165; Chipman v. Palmer, 77 N. Y. 51; Cooper v. Trans. Co., 75 N. Y. 116; Brown v. Coxe Bros., 75 Fed. Rep. 689.

12 39 S. W. Rep. 695.

18 Cuddy v. Horn, 46 Mich. 603; Barrett v. Ry. Co., 15 N. Y. 628.

14 106 U. S. 700.

the case of Schuylkill Nav. & Ry. v. Richards, supra, and the owners of the different mines, who injured the plaintiff's lands, in the case of People v. Mining Co. and Miller v. Highland Ditch Co., supra, should not be joined. In each of these cases the right of action against the different parties was recog nized. The defendants in each case were guilty of negligence. And so far as the concurrence or concert of action is concerned, one case presents as much as the other, and that the combined action and negligence of all caused the injury, is certain, in each case. The Supreme Court of Pennsylvania, in the case of Klander v. McGrath,15 puts the matter in a fairly tangible form. The court say: "The plaintiff below declared against the defendant for an injury which she had received. in consequence of the fall of a party-wall negligently sustained by them. The basis of the action was the negligence of the defendants. It is contended now that they could not be held jointly liable. The maintenance of an insecure party-wall was a tort in which they were both participants. The act was single, and it was the occasion of the injury to the plaintiff. It is difficult, therefore, to see why both were not liable and liable jointly. The case is not to be confounded with action for trespass brought for separate acts done by two or more parties defendant. There, if there has been no concert, or common purpose, there is no joint liability. Here the keeping of the wall safe was a common duty, and a failure to do so was a common neglect. The rule often recognized is, that when an injury has re sulted from the concurrent negligence of sev eral persons, they are jointly responsible." One rule for the proper joinder of parties defendant may be said to be: where two or more parties have caused an injury, the ques tion is, is each responsible for the whole injury, if so, then all may be joined. But if each is responsible only for the amount of injury caused by himself, separately, then he must be sued separately. On a close analy sis of the cases this doctrine will be found to govern; if the pleadings show that the injury caused by the parties defendant would not have occurred, or any part thereof, except for their joint acts, then they may be properly joined. But if it appears that the separate

15 35 Pa. St. 128.

16 Colegrove v. Ry. Co., 20 N. Y. 492.

acts of each, independently of all the rest, would have caused some part of the injury, it will not be proper to join them as defendants, unless it be shown, that their acts were by concert or common understanding. In the case of the railway companies the joinder is permitted, because, but for their concurrent acts or negligence, no injury would have been sustained. While in the injury to the "lands" and "dam," in the cases referred to above, the combined acts of all caused the injury, it is true, yet each individually caused some part of it, and would have done so had the others not been acting. Hence, there being no agreement or concert between them, they are each responsible separately and individually for the damage he had caused, and no more. Where the parties act jointly, or by concert, and an injury is caused by such concert of action, each may be said to cause it, and the parties may be jointly or severally sued for the injury. This is the basis upon which all the authorities say the right of joinder of the defendants rest, and upon this theory each of the defendants are liable for the full damage caused," otherwise only his proportionate part.18

2d. Entitled to Satisfaction.-The extent of the plaintiff's right to pursue the different wrongdoers is, to some extent, a disputed question. All the authorities are agreed that the plaintiff has a right to pursue them, or some of them, to a satisfaction. But just what is a satisfaction is the point of dispute. It is well settled by the old English cases that an action pursued to judgment against one would bar any proceedings against the others. But such is not the rule in this country. The rule, as first announced in the case of Livingston v. Bishop by Chief Justice Kent, was "that separate suits may be maintained against wrongdoers, and each prosecuted to judgment, and that no bar arises until satisfaction is had." This doctrine is followed by most all the States of the Union, and was

Railway Co. v. Case, 9 Bush, 728; Barnett v. Ry. Co., 45 N. Y. 628; Tompkins v. St. Ry. Co., 66 Cal. 163; Nagel v. Mo. Pac. Ry. Co., 75 Mo. 653; Minneapolis Mill Co. v. Wheeler, 31 Mich. 121; Fairbanks v. Kerr, 20 Smith (Pa.), 86; Berry v. Fletcher, 1 Dill. 67; Bell v. Morrison, 27 Minn. 68; Huddleston v. West Bellville, 111 Pa. St. 110; Currier v. Swan, 63 Me. 323.

18 Chippman v. Palmer, 77 N. Y. 51; Seely v. Alden, 61 Pa. St. 302; Sloggy v. Dillworth, 38 Minn. 179; Miller v. Highland Ditch Co., 25 Pac. Rep. 550; People v. Mining Co., 66 Cal. 138.

19 1 Johns. 290.

settled by the Supreme Court of the United States in the case of Lovejoy v. Murray,20 where the facts were that the sheriff levied an attachment for Lovejoy & Co. on certain property which belonged to Murray to satisfy another's debt. An indemnity bond was given by Lovejoy & Co., and the property sold under the attachment. Murray sued the sheriff and recovered a judgment for $6.233, and obtained as a credit from the sheriff $830. Afterwards, Murray sued Lovejoy & Co. for the balance, and was allowed to recover. The doctrine of these cases has been followed until it is now practically settled that the plaintiff may maintain as many suits, obtain as many judgments, and sue out as many executions as it may be necessary in order to recover the damages he has sustained; in other words, obtain satisfaction." But only one recovery or satisfaction can be had.22 The measure of damages is said to be that which aims at actual compensation for the injury inflicted.23 This, of course, is subject to exceptions in cases where only nominal damages should be allowed, or cases on the other extreme where exemplary damages are permissible. 24

3d. The Rights of Tort-feasors Against Each Other.-The general rule is that, as between wrongdoers, there is no contribution. 25 But this rule is limited and confined to cases where the person seeking redress

20 3 Wall. 1.

21 Sheldon v. Kibbe, 3 Conn. 214; McGeher v. Shafer, 15 Tex. 198; Sanderson v. Caldwell, 2 Aiken, 195; Os. terhout v. Roberts, 8 Cow. 43; Sharp v. Gray, 5 B. Mon. 4; Blann v. Crocheron, 20 Ala. 320; Knott v. Cunningham, 2 Sneed, 204; Page v. Freeman, 19 Mo. 421; Turner v. Hitchcock, 20 Iowa, 310; Lord v. Tiffany, 98 N. Y. 412; Freeman on Judg., sec. 236.

22 Turner v. Hitchcock, 20 Iowa, 310; Livingston v. Bishop, 1 Johns. 290; Metz v. Soule, 40 Iowa, 236; Brown v. Kencheloe, 3 Coldw. 192; Hammatt v. Wyman, 9 Mass. 137; Drake v. Mitchell, 3 East, 251; Cocke v. Jennor, Hob. 66; Bird v. Randall, 3 Burr. 1345; Murray v. Lovejoy, 2 Cliff. 191; Snow v. Chandler, 10 N. H. 92; Pogel v. Meilke, 60 Wis. 248; Dufresne v. Hutchinson, 3 Taunt. 117; Westbrook v. Mize, 35 Kan. 299; Lord v. Tiffany, 98 N. Y. 412.

23 Seely v. Alden, 61 Pa. St. 302; McKnight v. Ratcliff, 8 Wright, 168; Donty v. Bird, 10 Smith (Pa.), 48; Hart v. Evans, 8 Bar. (Pa.) 22; Walker v. Smith, 1 Wash. C. C. R. 154.

24 Seely v. Alden, 61 Pa. St. 302.

25 Adamson v. Jarvis, 4 Bing. 66; Cumpston v. Lam. bert, 18 Ohio, 81; Selz v. Unna, 6 Wall. 327; Armstrong Co. v. Clarion Co., 66 Pa. St. 218; Pursey v. Clary, 32 Md. 245; Keegan v. Hayden, 14 R. I. 175; Miller v. Fenton, 11 Paige, 18; Churchill v. Holt, 131 Mass. 67; Moore v. Appleton, 26 Ala. 633.

must be presumed to have known that he was doing an unlawful act.26

4th. Release and Part Payment.-First. Before Judgment.-The common law rule is that if two or more persons be bound jointly and severally in an obligation, and the obligee voluntarily and unconditionally release one of them, all are discharged, and either may plead the release in bar. 27 But the legal operation of a release of one or more, of two or more, joint debtors may be restrained by an express provision in the instrument to the effect that it shall not operate as a release of the others.28 And if, on payment by one or more, satisfaction is accepted in full for the injury complained of, it works a release of all.29 It has been held that the law considers the one who has paid for the injury caused by him, has satisfied the injured person as to the whole damage received.30 This doctrine is based upon the theory that there can be no separate estimate of the injury or damage among the several defendants.31 In the case of Gilpatrick v. Hunter,82 the court say: "In a joint trespass or tort, each is considered as sanctioning the acts of all the others, thereby making them his own. Each is liable for the whole damage, as though committed by himself alone, and recovery to the full damage may be had against him." On this ground it is said by the Supreme Court of Ohio, in the case of Ellis v. Bitzer, that "an accord and satisfaction of a joint trespass by one is good for all concerned. The act of

83

26 Armstrong Co. v. Clarion Co., 66 Pa. St. 218; Adamson v. Jarvis, 4 Bing. 66; Avery v. Halsey, 14 Pick. 174; Jacobs v. Pollard, 10 Cush. 287; Gridley v. City of Bloomington, 68 Ill. 47; Bailey v. Bussing, 28 Conn. 455; Moore v. Appleton, 26 Ala. 633; Atchinson v. Miller, 2 Ohio St. 203; Peck v. Ellis, 2 Johns. Ch. 131; Gray v. Gas Light Co., 114 Mass. 149.

27 Whittemore v. Judd Co., 124 N. Y. App. 565; Trotter v. Strong, 63 Ill. 272; Brown v. Ayer, 24 Ga. 288.

28 Whittemore v. Judd Co., 124 N. Y. App. 565; Hood v. Hayward, 124 N. Y. 1; Burke v. Noble, 48 Pa. St. 168; Rogers v. Hosacks, 18 Wend. 319; Ellis v. Esson, 50 Wis. 138; Morgan v. Smith, 70 N. Y. 537.

29 Turner v. Hitchcock, 20 Iowa, 310; Tompkins v. St. Ry., 66 Cal. 163; Urton v. Price, 57 Cal. 270; Lord v. Tiffany, 98 N. Y. 412; McGehe v. Shafer, 15 Tex. 198; Mitchell v. Allen, 25 Hun, 543; Ayer v. Ashmead, 31 Conn. 447.

30 Coke's Litt. 232; Com. Dig. Pleader, 3 M. 12; Ledsham v. Rowe, Hob. 66; Kiffin v. Willis, 4 Mod. 379.

31 Brown v. Allen, 4 Esp. 158; Wynne v. Anderson, 3 Car. & P. 596.

32 24 Me. 18, 41 Am. Dec. 370.

33 2 Ohio, 89, 15 Am. Dec. 534.

one of several joint trespassers is the act of all; they all unite to do an unlawful act, and each is responsible for the acts of the others. The plaintiff may elect to sue them jointly or severally, and may pursue them all, or either, until he has obtained satisfaction, but he can have but one recompense for his injury. The fact that there was an agreement, at the time of the release of one or more of the joint trespassers, that their release should not affect the right to pursue the other trespassers, does not change the rule. It has no valid or binding effect. Each joint trespasser being liable to the extent of the injury done by all, it follows, as a necessary consequence, that satisfaction made by one for his liability operates as a satisfaction for the whole trespass, and a discharge of all concerned. ''34 But the later, and certainly the better rule, is different. A release under seal at common law presumed full and com plete satisfaction for the wrong, and worked a release of all the wrongdoers. In the well considered case of Ellis v. Esson, the Supreme Court of Wisconsin reviewed the authorities and reasons for the rule, and held that "when the release is not a technical one, and is made in connection with an agreement not to prosecute the party to whom given, as to whether or not it works a discharge of all the wrongdoers, is a question which depends on whether or not it was given in full satisfaction of the injury. If it was, then all are discharged, if not, but only as a part satisfaction, then it discharges the others only pro tanto.37

36

The rule that a release of one is a release of all might apply where the liability was joint. But the liability of this character of tort-feasers is joint and several, and that rule cannot be applied.88 It was well said in Ellis

34 Denver & R. G. R. Co. v. Sullivan, 41 Pac. Rep. 501; Eastman v. Grant, 34 Vt. 387; Delong v. Curtis, 35 Hun, 94; Mitchell v. Allen, 25 Hun, 543; Tompkins v. St. Ry. Co., 66 Cal. 163; Urton v. Price, 57 Cal. 270; Ayer v. Ashmead, 31 Conn. 447; Turner v. Hitchcock, 20 Iowa, 310; Bell v. Perry, 43 Iowa, 368. 25 Bronson v. Fitzhugh, 1 Hill, 185; Cocks v. Nash, 9 Bing. 341; Brooks v. Stuart, 9 A. & E. 854. 36 50 Wis. 138.

87 Lovejoy V. Murray, 3 Wall. 1; Bloss v. Plymale, 3 W. Va. 393; Mathews v. Chicopee Mfg. Co., 3 Rob. (N. Y.) 711; Gunther v. Lee, 24 Am. Rep. 504; Pagel v. Meilke, 60 Wis. 248; Smith v. Gayle, 58 Ala. 600; Well on Res Adj., sec. 49.

38 Ellis v. Esson, 50 Wis. 188; Bowen v. Hastings, 47

Wis. 236.