that the proceeding assumes, but from the fact that the injured party has actually received satisfaction, or what in law is deemed the equivalent. Therefore, if he accepts the satisfaction voluntarily made by one, that is a bar as to all.' But it has been decided in Indiana that where the wrong consisted [*140] in the conversion by two of certain specific items of prop Turner v. Hitchcock, 20 Iowa, 310; Tompkins. Clay St. R. R. Co., 66 Cal. 164; Urton v. Price, 57 Cal. 270; Lord. Tiffany, 98 N. Y. 412. Release to one releases all. McGehee v. Shafer, 15 Tex. 198, although the release expressly stipulates that the other defendants should not be discharged. Mitchell v. Allen, 25 Hun, 542. Note taken from one, but not paid, is no satisfaction. Ayer v. Ashmead, 31 Conn. 447, lays down the general rule. See Allison v. Connor, 36 Mich. 283; Gilpatrick v. Hunter, 24 Me. 18; Ellis v. Bitzer, 2 Ohio, 89; Bronson v. Fitzhugh, 1 Hill, 185. A partial satisfaction by one is admissible in mitigation of damages sought to be recovered against another. Knapp . Roche, 91 N. Y. 329. In trover against two, after judgment against one and for the other defendant, plaintiff discontinued as to the former by unsealed agreement and sued the other again. Held, that the discontinuance was no bar. Nothing less than a satisfaction operates as a discharge. "Neither recovery of judgment unsatisfied in whole or in part, nor release of one on receipt of partial satisfaction, where it is expressed in the release that the sum paid is received only in part satisfaction, operates as a bar." Sloan v. Herrick, 49 Vt. 327. "When a technical release under seal, imparting consideration, is given, it is a bar to further action. If the contract is not one from which the law deems conclusively that the injured party has been satisfied for the wrong done, then a question of fact arises whether what has been received is in full. If not, it is only a satisfaction pro tanto against another. This doctrine is sustained by the weight of authority in all cases where the amount of the demand is capable of proof and computation, though there is a conflict where damages are mainly in the discretion of the jury as in case of assault." This held in a case where an agreement unsealed for $200 was given in release of one, and was held only a release pro tanto against the other. Ellis o. Esson, 50 Wis. 138. Where a convict in the penitentiary received injuries while employed by contractors, under charge of the penitentiary officers, and he presented to the legislature a petition for relief, and a sum was granted to and received by him: Held, that this was a bar to any suit against the contractors, as the relief received from the State implied that the State was a joint wrong-doer. Metz v. Soule, 40 Iowa, 236. Plaintiff sued H. for libel for publishing three articles in a paper. Two other articles were published in the same paper. He sued defendants for publishing the five, the first three being the same as those covered by the suit against H. After judgment against H. had been paid, defendants moved to vacate the judgment against them. Held, that the plaintiff suffered more than a single injury; that the publication twice by defendants alone of the matter previously published by them and H. jointly was a new erty, it was competent to settle with one on his returning a part of what had been taken, and to proceed afterward against the other.' The decision was expressly confined to the specific facts, and could not safely be carried very far. But where property has been converted, a settlement in respect to a part of it is no bar to a suit for the conversion of the remainder.' 2. Wrongs not Intended. Passing now to the class of unintended wrongs, we find them to consist most commonly in the neglect to perform some duty which the party has assumed by contract, or which the law has imposed because of official position or of some special relation. In such cases several persons may be found blamable, but if it does not follow that all can be held liable to the party wronged. The rule is general in such cases, that the legal wrong is chargeable only to the party who, by his contract, assumed the duty, or upon whom the law imposed it; in other words, as the breach of duty constitutes the wrong, the person who in legal contemplation, is wrong-doer is the person who was burdened with the duty, and who has failed in its performance. The exceptions to the rule must be of those cases in which the act or omission constitutes in itself a positive wrong, independent of any conventional or statutory duty; in which case the party chargeable with it may be held liable, whether subject to the conventional or statutory duty or not. An illustration may, perhaps, make this point sufficiently plain. A common carrier undertakes for the transportation of goods and distinct injury; that so much of the verdict as was based on those publications was not satisfied by the payment of the judgment against H. Woods v. Pangburn, 75 N. Y. 495. Fitzgerald . Smith, 1 Ind. 310. McCrillis. Hawes,, 38 Me. 566; citing Benbridge v. Day, 1 Salk, 218. There are statutes in some States which permit parties to settle with one or more who are jointly liable to them, without discharging the others. Settlement with one not liable was held, in Turner v. Hitchcock, 20 Iowa, 310, not to bar suits against those who were. Citing Wilson . Reed, 3 Johns. 175. 'In an action of tort for malprac tice growing out of a contract for professional services of a firm of physi cians, only the negligent partner was sued. Held, that as the gist of the action was the breach of the contract, all persons jointly liable on the contract must be joined. Whittaker v. Collins, 34 Minn. 299. But where the gist is negligence on the part of the occupants of a building in leav ing an elevator shaft unprotected, the non-joinder of one is immaterial. Fisher v. Cook, 17 N. E. Rep, 763 (Ill.) from the Mississippi to the seaboard. His duty by law is to carry safely and deliver within a reasonable time, and if he fails to do so he can only excuse himself by showing that the delays or injuries have resulted from the act of God or of the public enemy. Let it be supposed that the servants of the carrier are negligent in the performance of their tasks; they do not load the *goods promptly, or they delay trains unreasonably on the [*141] road, and in consequence, when the goods reach their destination, an advantageous market that should have been secured is lost. On these facts it is plain that there has been a breach of the duty owing to the consignor; and a breach, too, for which the servants of the carrier are blamable. But when we proceed to inquire whose duty has not been observed, it is equally plain that it is not that of the servant, for with him the consignor had entered into no relations whatever. The servant owes duties to the carrier, his master, by whom he may be called to account for his negligence; but no third party by whom he has not been employed, can presume to hold him to responsibility for unfaithful service. The consignor must, therefore, find his remedy against the party he employed, and the latter, if he has trusted to negligent servants, must assume the responsibility.' The case supposed is one of mere neglect to do with legal promptness what duty required the master to do or have done. On the other hand, if the servant by some distinct and positive wrongful act shall destroy or injure the goods, there is in contemplation of law a wrong not only by the master but by the servant also by the master, because his conventional duty to carry and deliver safely the goods entrusted to him has failed in performance, and by the servant because, while the wrong done by him is a breach of his contract relations with the master, it would equally be a wrong to the owner of the goods if no such contract relations existed. In making out a cause of action it might be necessary to show the duty in order to bring the responsibility home to the party who was not an active participant in the injury; but whoever was personally instrumental would be responsible, whether he had assumed any conventional duty or not. The obligation to abstain from positive wrongs rests upon every one, and does not depend upon contracts or other circumstances. A similar illustration may be drawn from the class of duties. 1 Shearm. & Redf. on Neg., § 111. springing from the ownership of lands. One may have upon his lands an excavation, which leaves the land of his neighbor without sufficient collateral support. If the land in this condition is left in charge of his servant, who understands the danger to the neighbor's interests, he ought, perhaps, considering [*142] the *question as one of moral obligation, to take such steps. as would prevent the threatened injury; but the legal duty to do so is imposed not on him, but on his master, and the master alone can be looked to, in case injury should occur. But if the servant himself, in the absence of the master, were to dig the pit, his personal responsibility for the resulting injury might be insisted upon. The distinction here is between an injury which might have been avoided by active steps which the law did not require of the servant, and an injury which his negligence has caused. Negligence is always unlawful.' The case of carriers of persons is a conspicuous instance in which the failure of a servant to observe due care may constitute a legal wrong to third parties, and render him and his master jointly responsible. In undertaking to carry, the carrier assumes the duty to carry safely, so far as the highest vigilance will enable him to do so. A railroad company, acting as such carrier, employs an engineer, whose duty to the company is to run the train with skill and prudence. Now, although there are no contract relations between the engineer and the person who is to be carried, yet, when an individual is placed in a position of responsibility, and the property, and especially the persons of others, are entrusted to his prudence, his skill, and his fidelity, so that his negligence may inflict serious, and, perhaps, irreparable injury, it is reasonable that the law should make it the right of every person thus circumstanced to demand from him a vigilance corresponding to the responsibility. And this we understand to be the rule. The negligence in such cases is that of both master and 1 Richardson v. Kimball, 28 Me. 463. A. owned a boiler and ran a saw mill. B. and C. entered into partnership with him to build and run a grist mill, using A.'s boiler certain days in the week. On the other days A. used it to run his saw mill. On one of these latter it exploded, B. and C. owned a quarter interest in the boiler. Held, B. and C. were not liable for the injury caused by the explosion. Young . Bransford, 12 Lea, 232. Hutchinson v. York, etc. R. R. Co., 5 Exch. 343, 350, per ALDERSON, B.; McMillan v. Saratoga, etc. R. R. Co., 20 Barb. 449, 454, per ALLEN, Ch. J. See Shearm. & Redf. on Neg. SS 112, 115. servant, and the liability, as in other cases where two or more are chargeable with a wrong, may be enforced in a suit against one or against both.' The joint liability would seem to be still *plainer where the servant is guilty of a positive [*143] act of misfeasance to the property or person being carried. When a train conductor puts a man off the cars without justification, or commits an assault on a passenger in the cars, or runs his train past a station where passengers are to be left, or is guilty of any other misconduct of a like nature, the person injured is under no obligation to look beyond him for redress. Nevertheless, he may, at his option, unite the railroad company as a defendant, or sue it separately.' And in the case of carriers of persons, the obligation not to expose life or limb to injury by negligence is one which is independent of contract relations, and exists, whether a consideration has been received for the carriage or not. The duty to carry safely one who is received for carriage is a public duty, and a contract or the payment of fare is not necessary to create it. This is the rule which has been applied to railroad companies, and it should be the rule governing 1 Cary . Webster, 1 Str. 480; Wilson v. Peto, 6 Moore, 47; Johnson v. Barber, 10 Ill. 425; Carman v. Steubenville, etc., R. R. Co., 4 Ohio, (N. 6.) 399; Suydam v. Moore, 8 Barb. 358, 363; Bailey v. Bailey, 61 Me. 361;* Wright. Wilcox, 19 Wend. 343; Montfort. Hughes, 3 E. D. Smith, 591. Perhaps the courts of Massachusetts would not sustain a joint liability, unless the master was present and participating. See Parsons . Winchell, 5 Cush. 592. In New York the doctrine of the text is considered unquestionable. See Phelps . Wait, 30 N. Y. 78. Defendant furnished horses and wagon and another man drove them to carry passengers for him. They divided the money so earned. The driver in the absence of defendant negligently ran over the plaintiff. Defendant held liable for the negligence of his associate in the common enterprise. Stroher o. Elting, 97 N. Y. 102, The Massachu setts doctrine was followed in Campbell v. Portland Sugar Co., 62 Me. 552; S. C. 16 Am. Rep. 503. 2 Goddard v. Grand Trunk R. R. Co., 57 Me. 202; S. C. 2 Am. Rep. 39; Burnham v. Grand Trunk R. R. Co., 63 Me. 298; S. C. 18 Am. Rep. 220; Priest v. Hudson Riv. R. R. Co., 40 How. Pr. 456; Coleman v. N. Y. & N. H. R. R. Co., 106 Mass. 160; Redding. South Carolina R. R. Co., 3 S. C. Rep. 1; S. C. 16 Am. Rep. 681; Baltimore, etc., R. R. Co. v. Blocher, 27 Md. 277; Moore v. Fitchburg R. R. Co., 4 Gray, 465; Pennsylvania R. R. Co. v. Vandiver, 42 Penn. 365; Brokaw v. New Jersey R. R. Co., 32 N. J. 328; Kline v. Central Pacific R. R. Co., 39 Cal. 587. 3 Nolton v. Western R. R. Co., 15 N. Y. 444; Derby v. Reading R. R. Co., 14 How. 468; Jacobus St. Paul R. R. Co., 20 Minn. 125; Marshall v. York, etc., Railway Co., 11 C. B. 655. See cases Ch. XX, page *642. |