'We have looked in vain through the referee’s findings of fact for any thing to warrant his conclusion that the defendants entered into any joint undertaking with this plaintiff. The circumstances relied upon as rendering O’Brien liable, would show a separate liability, if any thing, and they tend to negative, rather than to support any inference that either he or the plaintiff understood that O’Brien was to be jointly responsible with Stewart. The finding of law is consequently without any support in the facts.

The judgment must be set aside, and judgment entered in this court for the defendant O’Brien, with costs of both courts.