not where it will carry you (see Story Cont. s. 546; Richardson v. Melish, 2 Bing. 229; Boardman v. Thompson, 25 Iowa, 501); and as it is liable to vary with the growth of society and the usages and habits prevailing under changed conditions, the latest judicial opinions on its bearing and operation must necessarily possess a special importance; while the student of comparative jurisprudence must regard with special interest any development of doctrine on such a subject as exemplified by the modern decisions in different countries. One branch of law so affected, on which we find several recent authorities in England, Ireland and America, relates to agreements entered into for the purpose, or in consideration of the compromise of criminal prosecutions, and those cases we propose here to briefly collate.

The Irish cases, indeed, must be supposed to be already pretty familiar to our readers, and need less examination accordingly. See Rourke v. Mealy, 13 Ir. L. T. Rep. 52; London Guarantee and Accident Co. v. Fearnley, 14 Id. 59. The bearing of the last case cited is merely on the question of the duty of prosecution before seeking civil redress; but Rourke v. Mealy will be found to present an able and valuable discussion by Palles, C. B., of the principles upon which agreements to abstain from instituting, or proceeding with prosecutions of a public nature are deemed illegal. It is enough, however, to observe that it was there held that, while on the one hand, a contract to terminate or stifle a prosecution already commenced is illegal, irrespective of a crime having been in fact committed, or of the reasonable and probable grounds of belief in the guilt of the person charged, on the other hand, an agreement to abstain from instituting a threatened prosecution for a criminal offense is not illegal, unless there are reasonable grounds for believing that the alleged offense has been actually committed, or unless each party entered into the ageeement on that assumption. And in Swope v. Jefferson Fire Insurance Co. (10 Reporter,282), decided last May, we find it held by the Supreme Court of Pennsylvania that, in order to avoid a contract or security on the ground that the consideration was the compounding of a crime, the proof of a mere threat of prosecution for a felony, if the instrument were not executed, is not sufficient, there being no proof of the felony or of an agreement not to prosecute. Another subject of decision in Rourke v. Mealy was, that an agreement not to prosecute is not equivalent to, nor does it involve an agreement not to give evidence upon a criminal prosecution instituted by another party. And here may be noted the case of Haines v. Lewis (10 Rep. 526). decided last September, in which we find it held in the Supreme Court of Iowa, that it is the right of the State to have the unbiased testimony of its witnesses in every criminal prosecution, and. therefore, an agreement tending to defeat this right is void as against public policy. The plaintiff sued for a note executed by one Danforth, and placed in the hands of defendant to be delivered

to the plaintiff, in case one Ellen Patterson, a client of plaintiff, should sign a petition to the Governor asking for the pardon of Danforth for an offense of which he was convicted; or if the judgment was reversed on appeal, that she would forbear to prosecute. The court held that he could not recover, Adams, C. J., saying: "The plaintiffs' action is based upon an alleged agreement upon the part of the defendant to deliver to them the two notes made payable to them, and placed in the defendant's hands. With whom such an agreement was made, does not appear from the petition. If it was made solely between Danforth and the defendant, then the defendant was solely Danforth's agent or bailee, and the delivery by Danforth to his own agent or bailee was not such delivery as would put the notes in force. But if the petition had averred an agreement between the defendant and the plaintiffs, they would still not be entitled to recover, unless the agreement was of such a character that we could properly enforce it. The defendant insists that we can not, for the reason that it would be against public policy to do so. It is the right of the State to have the unbiased testimony of all its witnesses in every criminal prosecution. If the tendency of such agreement would be to defeat such right, it can not be upheld. All the notes, including those made payable to the plaintiffs. were executed for the benefit of Ellen Patterson, the prosecuting witness in the criminal case. From the time they were executed and deposited, she had a direct pecuniary interest, not only in securing Danforth's pardon, but, in case that was refused, and the case was reversed and remanded for another trial, in securing his acquittal. From most criminal acts there arises a civil liability, and the person injured is often the prosecuting witness. If the prosecuting witness and defendant can stipulate for the deposit of promissory notes or other property, by the defendant, to be delivered to the prosecuting witness in settlement of the civil liability in case the defendant escapes conviction, and not otherwise, and the courts will enforce such stipulations, it appears to us that such would become a favorite arrangement upon the part of the injured person to enforce the discharge of the civil liability, and upon the part of the defendant to defeat the administration of criminal justice. In this case it is true that there had already been a conviction, and it was hoped that a pardon would be secured; but the possibility of a failure to secure the pardon, and of a reversal by the Supreme Court, and another trial below, we think must have been contemplated by Danforth, and constituted a part of his motive in executing and depositing the notes."

Another question, in relation to the doctrine in hand, which we find to have been the subject of recent discussion both in England (Whitmore v. Farley, 43 L. T. N. S. 192), and America (McMahon v. Smith, 10 Reporter, 486; s. c. 47 Conn. Bredin v. Dorsey, 2 Ky. L. R. 20), is as to whether it is necessary that the crime compounded -hould

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be

be a felony. Reserving the English case cited for fuller and separate discussion in a subsequent paper, we shall first refer to the American decisions. We find that in Partridge v. Hood, 120 Mass. 407, which was not cited in the recent cases next referred to, it was expressly held that it makes no difference whether the offense is or is not more than a misdemeanor. And in Bredin v. Dorsey (ubi supra), decided last year, the Supreme Court of Pennsylvania say: "It is the nature of the crime, not so much whether it be felony or misdemeanor, which is to be considered. Many felonies are not so enormous as some misdemeanors. The law recognizes this in their punishment; for instance, the maximum of imprisonment for one convicted of forgery is ten years, of larceny three. Stifling a prosecution for forgery, though an offense of the same grade as compounding divers felonies, seems to be a graver offense than compounding some felonic comes within the rule, that where the we' society and the vindication of the law are chief objects, the defendant may give in evid ́ the illegality of the contract as a bar to a suit to enforce it, and this to prevent evil which would be produced by enforcing the contract, or allowing it to stand." To the same general effect is McMahon v. Smith (ubi supra), which was not there cited. But, as to the rule requiring criminal proceedings to be taken before civil, see The Hercules, 2 Dods. 376, et cf. Jones v. Clay, 1 B. & P. 91, mentioned in 13 Ir. L. T. 170. In M'Mahon v. Smith (ubi supra), decided last year by the Supreme Court of Connecticut, it appeared that a man having been arrested and lodged in jail upon a criminal proseeution against himself and his son, for obtaining goods under false pretenses, his wife agreed with the parties from whom the goods were obtained, and who had procured the prosecution, that she would give a note with her husband for the value of the goods and for the costs made, and secure it by a mortgage of her real cstate, if they would procure the abandonment of the criminal proceeding and the release of her husband. The note and mortgage were given, and the prosecution was withdrawn. It was held, on a bill to foreclose the mortgage, (1) that a court of equity would not enforce a contract of suretyship so procured; (2) that the note was void as being upon an illegal consideration. Loomis, J., in delivering the opinion of the court, sai: "We consider the case as stated controlled by the recent decision of this court in Town of Sharon v. Gager, 46 Conn. 189, which was a petition to foreclose a mortgage given by one Julia Gager, to secure the town against loss on account of the defalcation of her nephew while he was treasurer of the town. The mortgagor, being feeble in body and excitable in temperament, was approached by a selectman, who informed her that her nephew was a defaulter, and had exposed himself to a criminal prosecution punishable in the State prison, and that he would be so prosecuted and punished unless she secured the town

immediately. In an agitated state of mind she executed the mortgage for the sole purpose of preventing a criminal prosecution. It was held that a court of equity would refuse to enforce a contract of suretyship entered into under such circumstances, and that it did not alter the case that the selectman believed that the nephew was liable to punishment in the State prison. The decision was based on the authority of the cases of Williams v. Bayley, L. R. 1 Eng. & Ir. App. House of Lords, 200, and Davies v. Ins. Co., L. R. 8 Chan. Div. 469, from which full citations were made. In a case like the present, where the intimate relation of husband and wife, or mother and son, exists between the persons accused and the surety, and the husband is actually under arrest, and an express agreement to stifle a pending public prosecution is made and actually consummated, a court of equity is bound to notice, not only the principles of public policy violated, but also the manifest inequality of the parties to the contract, and the unfair advantage taken by one to force an agreement from the other, under the immense pressure which the circumstances must inevitably have produced, and should upon every principle declare that the person so compelled to give security was not a free and voluntary agent, and that the agreement so made must be set aside. But it is argued, in behalf of the petitioners, that, to set aside such a contract, the offense to be compounded must be a felony and not a mere misdemeanor, and that where the parties have a civil remedy, they may agree not to prosecute criminally. It is quite true that a person may settle any claim of private damage as he sees fit, only he may not compromise a public prosecution. But the right to stifle a prosecution does not turn on the question whether the offense is a felony or a misdemeanor. All the authorities hold that an agreement to compound a felony will not be enforced, and that any security based upon such a consideration is void. But as to misdemeanors, a distinction has been made. Some authorities hold that those misdemeanors which are personal in their nature between the parties, such as bastardy and a common assault, unaccompanied with riot or intent to kill, may be compromised. Maurer v. Mitchell, 9 W. & S. 69; Robinson v. Crenshaw, 2 Stew. & P. 276; Price v. Summers, 2 South. 578; Holcomb v. Stimpson, 8 Vt. 141. The last case was a prosecution for bastardy, and the decision was placed on the ground that it was a civil suit. But where the offense is in whole or in part of a public nature, nearly all the authorities hold that no agreement to stifle a prosecution for it can be valid. Fay v. Oatley, 6 Wis. 42; Commonwealth v. Johnson, 3 Cush. 454; Hinesborough v. Sumner, 9 Vt. 23; Bowen v. Buck, 28 Ib. 308; Shaw v. Reed, 30 Me. 105; Shaw v. Spooner, 9 N. H. 197; Clark v. Ricker, 14 Ib. 44; Kimbrough v. Lane, 11 Bush, 556; Peed v. M'Kee, 42 Iowa, 649; Buck v. Bank, 27 Mich. 293; Gardner v. Maxey, 9 B. Mon. 90; Kier v..ehman, C C. B. 308. The cffen:e com

1. An owner of premises adjoining a sidewalk has, in the absence of any law or ordinance to the contrary, a right to make and maintain on his land, an opening or excavation, abutting upon that sidewalk; but it is his duty to so guard it as to render the sidewalk ecure for persons using it, and his neglect to do so will render him liable to all persons thereby injured while lawfully using the sidewalk, and in the exercise of ordinary care.

2. The want of such guards creates a public nuisance, and if the owner lets the premises, and the tenant allows it to remain, they are jointly and severally liable for injuries occasioned thereby, and it is no defense that the premises had been in the same condition as far back as could be remembered, and many years before defendant was in possession of them.

3. It is not incumbent on the plaintiff in the first instance to show that he was free from negligence at the time of the injury-but contributory negligence on his part is a matter of defense, and the burden of showing it is on the defendant. If, however, it appears without any conflict of evidence from the plaintiff's own case, or from the cross-examination of his witnesses, that he was guilty of negligence proximately contributing to produce the injury, it is the duty of the court to take the case from the jury.

4. In passing on a demurrer to the evidence, the court is required to make every inference of fact in favor of the party offering the evidence, which the jury might with any degree of propriety have inferred in his favor; and if then it is insufficient to support a verdict in his favor, the demurrer should be sustained. And, in passing on the demurrer, the court can not make inferences of fact in favor of the defendant, to countervail or overthrow either presumptions of law or inferences of fact in favor of plaintiff. The rule applied to case at bar.

5. A traveler is not required to abandon a convenient or an accustomed route of travel because of dangerous excavations near the highway, unless the use of the way, under such circumstances, would be inconsistent with the exercise of reasonable or ordinary care; and the traveler, if injured, under such circumstances, may recover, notwithstanding his knowledge of the existence of the nuisance, provided he was at the time using ordinary care.

6. Where the deceased fell into an opening on premises abutting or adjoining a highway, the law is that he was guilty of negligence if he did not see it, provided he would have seen it by using ordinary care; and, if he saw it, he was guilty of negligence in not avoiding it, if he could have avoided it by the exercise of ordinary care; and the law presumes the exer

cise of ordinary care on the part of deceased, which presumption is not overthrown by the mere fact of injury. Slight circumstances, however, from which contributory negligence may be inferred, may overcome this presumption, and it is for the jury and not for the court to draw such inferences.

7. Although, under some circumstances, an instruction, by reason of its phraseology, might be misunderstood and mislead the jury, yet if it appears that such was not in fact the case, and that it could have worked no injury, the cause will not be reversed.

The following were the instructions given for plaintiff:

1. The court instructs the jury, that if they believe from the evidence, that the premises described in the petition, at the time therein alleged, belonged to the defendant, and that the opening to the cellar stairway was so constructed as to render the same insecure, dangerous and insufficient to protect passers by, and that from all the testimony and circumstances admitted in evidence, that plaintiff's husband, while exercising ordinary care on his part, was injured in consequence of the careless or negligent manner in which the alley-way or opening thereto was constructed and guarded by defendant, then the plaintiff is entitled to recover, and the finding of the jury should be for plaintiff.

2. The court declares the law to be, that ordinary care means that degree of care which may reasonably be expected of a person in the situation of plaintiff's husband at the time the accident occurred. If the jury are satisfied from the evidence, that while the plaintiff's husband was exercising such ordinary care, he was injured by negligence of the defendant; and shall further find from the evidence, the defendant's negligence was the direct, immediate and proximate cause of the injuries complained of, and without which the accident could not have taken place, then plaintiff is entitled to recover in this action, and the verdict should be for plaintiff. Although the jury may find from the evidence that, at the time of the alleged death of the plaintiff's husband, the defendant was not in actual possession of the premises described in the petition, yet, if they shall further find from the evidence that said premises were in the same condition as when originally constructed, and that when defendant surrendered the control of the premises to Barnes, the opening of the cellar-way was in the same condition as when the accident complained of occurred, and that the same was so unguarded and unprotected as to be dangerous and insufficiently constructed; and that while exercising ordinary care on his part, the plaintiff's husband fell into said cellar-way, and died from injuries that were occasioned by such negligent construction of said premises, then defendant is liable in this action, and the verdict should be for plaintiff.

3. If the jury find for plaintiff, they should assess her damages at such sum as they may deem fair and just under the circumstances shown in evidence, not exceeding five thousand dollars.

The instructions given for defendant were as follows:

1. If the jury find that the injuries and death of said Buesching was directly caused, either in whole or in part, from the want of ordinary care and prudence on his part, then plaintiff can not recover. If the jury find from the evidence, that the existence of the passage-way in question, was, on the night of the accident, lit up by a public lamp, standing on the opposite side of the street, and that it was in open and plain view of deceased; or that he, by the exercise of ordinary care, could have seen it, then plaintiff can not recover, and you must find for the defendant.

2. If the jury should find from the evidence, that the night on which the deceased was killed was dark and rainy, and that the street was not lit up by the lamps near the place of the accident, so as to enable him to see the stairway in question, then the law required of him a greater amount of care in traveling on the street or alley, so as to see that he was in the open and usual way of travel, and not bringing himself in danger of falling into openings, stairways and steps leading into the building on the line of the street.

3. The jury are instructed that the law imposes on persons traveling upon the public streets and alleys of the City of St. Louis, the duty of exercising reasonable and ordinary care and prudence to avoid the dangers incident to such travel. And if you find from the evidence that the death complained of, was caused by a want of ordinary care in deceased, or his failure to look with ordinary care to his steps, so as to avoid danger and injury, or that he might have seen and avoided the stairway by the exercise of ordinary care and prudence, then the plaintiff can not recover.

4. If the jury find from the evidence in the cause, that the deceased knew of the existence and location of the steps leading into the basement of the defendant's house, or could have seen and avoided the same by the exercise of reasonable care while passing on the street, or coming out of the alley, then the plaintiff can not recover. The defendant also asked the court to give the following instruction, which was refused:

If the jury find from the evidence that the defendant made the passage leading from Pine street to the basement of its building in question, and that the same was inclosed by a firm iron railing, excepting the entrance thereto, and that the same was near to, and well lit by a public street-lamp, and had been SO situated and used for the last twenty years, as the means of going into and out of said basement in said building; and that said defendant had no reasonable grounds of believing that anyone passing thereby, with due care and caution, would fall therein, or

be injured thereby, then the plaintiff can not recover, and you must find for the defendant. The other facts sufficiently appear in the opinion.

HOUGH, J., delivered the opinion of the court: This was an action against the St. Louis Gaslight Company as owner, and one Barnes, the tenant in possession of a certain building on Pine street, in the City of St. Louis, for negligence in not guarding the entrance to an area or opening in front of said building, and abutting upon the sidewalk into which it is alleged plaintiff's husband fell on the night of January 224, 1876, and was thereby killed. The building in question is located on the north side of Pine street, and on the west side of and adjoining an alley which runs north and south through the block lying between second and third streets. All the houses on the north side of Pine street between the alley and Third street are set back two feet and six inches from the north line of the sidewalk. The opening in question is about eight feet long east and west, three feet nine inches deep, and two feet five inches wide, and is, therefore, outside the sidewalk, and on defendant's ground, and being designed to furnish means of descent to the cellar or basement of this building, had five straight stone steps, and two winding ones at the bottom, leading to the basement door. The top step, which is eight inches wide, is flush with the east wall of the building which is on the west line of the alley, and the descent into the cellar, therefore, begins just eight inches from the east wall. This opening is guarded by a railing at the west end, and had also a railing on the south side extending to within two feet of the east edge of the top step, so that persons might step from the sidewalk on the second step. But the eastern end or entrance had no guard or barrier of any kind. There are several openings of the same kind in the block, and the testimony tended to show similar openings existed throughout the city. Buesching, at the time of his death, kept a saloon on Chestnut street between Main and Second streets, two blocks distant from the place of the accident, and lived with his family over his saloon. He was an industrious man, attentive to his business, and, though in the habit of drinking, was not a drunkard. He was last seen alive by the barber at a shop on Olive street near Second, who knew him well, and had been in the habit of shaving him every Saturday night for two years. At nine o'clock, P. M. of January 22d, which was Saturday, Buesching went to this barber shop and was shaved. He waited until the shop was closed and asked the barber to drink with him, which he declined to do. It does not appear that deceased took a drink, and the testimony is that there were no saloons then open in that vicinity. The barber testified that when he was at the shop he was rational and knew what he was about. He could not say that he had been drinking, for he saw no effects of it. He further testified: "He might have been drinking, but I never saw him so intox

icated as not to be able to take care of himself and to walk, and never saw him stagger, and never saw him affected by liquor." They walked together from the shop to the corner of Second and Olive streets where they separated, about a quarter to ten o'clock, the barber going west on Olive and the deceased going north on Second. At this time it was thawing and raining, the walks were muddy and slippery, and Buesching was wearing low cut slippers and had neither overcoat nor umbrella. He was never seen alive afterwards. On the next morning about seven o'clock he was found dead at the bottom of the cellar entrance in front of the Gas Company's building, lying on his back with his feet up the steps and his head against the basement door, with his neck broken, and no marks of personal violence on his body. His watch and other valuables were on his person. His pantaloons were unbuttoned for a short distance in front, and there was a urinal in the alley. There was a gas lamp burning that night on the opposite side of the street, thirty-four feet from the cellar way, in which Buesching was found. He had kept a saloon for six years at the corner of Second and Pine streets, half a block distant from this cellar way, which had then been there for nearly twenty years. The plaintiff recovered judgment in the circuit court, which was reversed by the Court of Appeals, the latter court holding that on the facts stated, the circuit court should have taken the case from the jury. The plaintiff brings the case here by appeal.

As the opening was on the defendant's own ground, although abutting upon the sidewalk, they had an undoubted right, in the absence of any law or ordinance to the contrary, to make and maintain it; but it was their duty to so guard the entrance as to render it secure for persons using the sidewalk; and they are liable to all persons lawfully using the sidewalk who, while exercising ordinary caution, are injured thereby. This, we think, is well established by the authorities. In Cooley on Torts, p. 660, it is said: "If one make an excavation so near the line of the highway, that one lawfully making use of the highway, might accidentally fall into it, his duty to erect guards as a protection against such accidents is manifest, and he will be responsible for injuries occasioned by his neglect to do so." In Sherman & Redfield on Negligence, sec. 360, it is said: "Where an area is excavated by the side of the street, it must be surrounded by a secure fence; and where an opening is made into a cellar, it must be covered with a lid or flap of ordinary and sufficient strength. The want of such guards creates a public nuisance, for which the tenant is liable to any person injured thereby, even though the premises were leased in that condition." If the owner lets the premises, with the nuisance upon it. and the tenant allows it to remain, they are jointly and severally liable for injuries occasioned thereby. Id. sec. 361. In Coupland v. Hardingham, 3 Camp. 398, it appeared that there was an area in front of

the defendant's house, which was descended to by three steps from the street, and from which there was a door leading into the basement story of the house; there was no railing or fence to guard the area from the street, and the plaintiff passing by in a dark night, fell into it and had his arm broken. The defense set up was, that the premises had been in exactly the same situation as far back as could be remembered, and many years before the defendant was in possession of them. Lord Ellenborough said, that however long the premises might have been in this situation, as soon as the defendant took possession of them, he was bound to guard against the danger to which the public had been exposed, and that he was liable for the consequences of having neglected to do so, and the learned judge said that the area belonged to the house, and it was a duty which the law cast upon the occupier of the house to render it secure. Thompson on Neg. 327. In Jarvis v. Dean, 3 Bing. 347, the plaintiff recovered damages for injuries sustained by falling into an open, unguarded area adjoining the street, and no question was made as to his right of action. Barnes v. Ward, 67 Eng. Com. Law, 392 (9 M. G. & S.), was an action under Lord Campbell's Act, brough by the administrator of Jane Barnes, to recover damages for her death, occasioned by the failure of the defendant to properly guard, fence off and rail in a certain hole, or area, abutting upon the foot-way, into which, while lawfully passing upon said foot-way, she slipped and fell. This case was most elaborately argued, and in consequence of doubts entertained by the court as to the duty of the defendant to fence off the excavation, a second argument was directed, and, after the fullest consideration and an examination of the original nisi prius records in Coupland v. Hardingham, and Jarvis v. Dean, as to the location of the area in question in those cases, the court said: "It appears to us, after much consideration, that the defendant, in having made that excavation, was guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the land." So, also, in the case of Hadley v. Taylor, Law Rep. 1 C. P. 53, Erle, C. J., said: "The plaintiff seeks compensation for an injury which he has sustained through falling into a hole on the defendants' premises. The hole was not upon the public highway, but distant from it about fourteen inches. I think, however, the defendants (assuming them to be in possession of the adjoining premises) would be liable for a nuisance to the highway, if the excavation were so near to it that a person lawfully using the way, and using ordinary caution, accidentally slipping, might fall into it." To the same effect are Snow v. Provincetown, 120 Mass. 580; Bush v. Johnston, 23 Pa. St. 209; and Temperance Hall Association v. Giles, 33 N. J. Law Rep. 260. In the case last cited, it was held, that in order to show that the area in question was not a nuisance, it was not competent to prove that over a thousand persons had passed and repassed the area every year after