equivalent to payment, and entitled them to recover out of the special fund. Held, that without considering this point, it was a compulsory payment, because made under stress of legal process. First Nat. Bank v. Watkins, 21 Mich. 483. The recovery establishes that the amount was never lawfully in the special fund, and, consequently, that relators were never lawfully entitled to it. Opinion by COOLEY, J.-People v. City of East Saginaw. - LIBEL-NOTICE OF JUSTIFICATION-MEANING OF INDICTMENT IN ORDINARY LANGUAGE VARIANCE -MEANING OF CURRENT PHRASES JUDICIALLY RECOGNIZED.-Plaintiff being a candidate for Congress, defendant published articles containing charges against his moral character and integrity, and when ued for libel attempted to justify, and gave proof in mitigation of damages. The jury found no cause of action. Held, 1. That where the notice of justification appended to defendant's plea in an action for libel avers that defendant will " prove the truth of the allegations in said declaration contained," it must be taken as meaning the allegations in the libels complained of. 2. That such a general notice of justification is good under the Michigan statute. Cresinger v. Reed, 25 Mich. 450. The objections to such notices are obviated by the practice of compelling a defendant, if requested, to serve particulars of his justification; but where the defendant puts in a general justification he assumes the task of showing one precisely proving the truth of the libelous statements as charged. Whittemoor v. Weiss, 33 Mich. 348. 3. That a statement that plaintiff is under indictment for malversation in office as justice of the peace, is sufficiently justified by proof of a prosecution before a justice for not paying over an assault and battery fine collected by him as justice, Informations have generally superseded indictments, yet the latter term is in ordinary use, and is often employed in judicial opinions, to express any criminal prosecution. 4. That an allegation of stealing whiskey fines is not met by proof of not paying over a fine for an assault. 5. That a charge saying "Then there was that Iowa Beecher business which lost him his place at Grass Lake" (plaintiff was a clergyma n), must be taken as involving a charge of criminal conduct, unless some explanation was given showing an innocent meaning. Courts must recognize the meaning of current phrases which everybody else understands. Defendant was bound to show a loss of position through some charge of immoral conduct affecting plaintiff's clerical character. 6. That the term "pettifoggying shyster," as applied to a lawyer, being well known to lawyers and citizens generally, needs no explanation by witnesses before a jury. 7. That defendant could freely show on what ground of information he acted in publishing the libels. The fact that plaintiff had been convicted of embezzlement of any kind of fines might by common exaggeration develop into such facts as this case shows, and if defendant heard and honestly believed them, evidence of others though not a technical justification, should be received as bearing very strongly upon lack of wrong intent. Opinion by CAMPBELL, C. J.—Bailey v. Kalamazoo Publishing Co. SUPREME COURT OF PENNSYLVANIA. January, 1879. NEGLIGENCE-STREET RAILROAD-EVIDENCE.-In an action against a street railroad company for negligently running over and causing the death of plaintiff's husband while crossing its track at a public crossing, evidence that the car was being driven at a rate of speed more than ordinary, and that the driver did not see the deceased or know of the running over until the car had entirely passed over the body of deceased, is sufficient evidence of negligence to take the case to the jury. Opinion PER CURIAM. West Pennsylvania Pass. R. Co. v. Mulhair.-Reported in full, 6 W. N. 508. NEGLIGENCE-MASTER AND SERVANT- COMMON EMPLOYMENT-SEAMEN INDEPENDENT EMPLOYMENT OF STEVEDORE.-H, a seaman on one of the defendant's steamers, was injured while on duty as night watchman in the port of New Orleans. Neither the master nor the seamen have anything to do with the loading and unloading of the steamers at that port, which, by special contract, is under the exclusive charge of a general stevedore, who employs his own men, uses his own machinery and cargo planks. On the night of the accident, these planks were left without proper support by the fall of the river, and the plaintiff, who had gone forward to learn what was the cause of a noise he had heard, stepped upon one of them, which tilted and threw him overboard. Held (affirming the judgment of the court below), that the questions whether the stevedore was an agent of the defendant or an independent contractor, or whether the plaintiff was a fellow-servant in a common em. ployment, were properly submitted to the jury. Opin. ion PER CURIAM.-Hass v. Phil. & C. S. Co. Reported in full, 6 W. N. 523. NEGLIGENCE-WHAT SUFFICIENT EVIDENCE OF, TO BE SUBMITTED TO JURY-PASSENGER RAILWAY -INJURY TO INFANT NOT A PASSENGER.-1. Although a child is not chargeable with contributory negligence, persons having business in the streets may act upon the belief that an infant will not voluntarily thrust himself under the feet of the horses or the wheels of a carriage, and therefore drivers and others are not bound to provide against possible damages resulting to an infant from his own willful negligence. The failure to provide against such an accident is not negligence. 2. A boy six years old, in attempting to jump on the front platform of a horse car, was run over and injured; the car ran through a thinly populated suburb, was drawn by one horse, and under the care of one man, who performed the duty of both driver and conductor. Held, that the failure of the defendants to place felders on the front platform of the car, and the fact that the driver had gone to the rear of the car in the course of his duty, did not entitle the plaintiff to have the question of the defendant's negligence submitted to the jury. Opinion by GORDON, J. Hestonville Pass. R. Co. v. Connell. Reported in full, 6 W. N. 514. NEGLIGENCE - CONTRIBUTORY NEGLIGENCE RAILROAD COMPANIES-DUTIES WITH REGARD TO CARRYING AND LANDING PASSENGERS.-1. When there is a reasonable doubt as to the facts or as to the inferences to be drawn from them, or when the measure of duty is ordinary and reasonable care, and the degree of care varies according to the circumstances, the question of contributory negligence is necessarily for the jury. 2. A took passage on the P. & T. R. Co. for "Penn Valley," a station on that road. After passing the station immediately preceding his destination, the conductor of the train announced that the next station would be "Penn Valley." As the train slowed up A moved to the front platform of the car, which stopped opposite a platform and depot marked "Penn Valley." It was necessary to cross the track to reach this platform, which was on the left hand side. A stepped off the car platform and was struck by a pass. ing express train of the company defendant and instantly killed. The evidence showed that the train had stopped in obedience to a rule of the company that trains should not pass each other at stations, that "local passenger trains will give preference to through ex press trains," and that the proper landing place for - passengers by the local train was some eighty feet beyond this point, and on the right side: Held, that the question of contributory negligence was properly submitted to the jury. 3. The rule of law that persons about to cross a railroad track must stop, look and listen, and that the failure to do so is negligence per se, “is not always applicable to passengers leaving a train and crossing the track to reach the depot at the point of destination." Opinion by STERRETT, J.-Pennsylvania R. Co. v. White. Reported in full, 6 W. N. 516. NEGLIGENCE-RAILROAD COMPANY CONTRIBUTORY NEGLIGENCE- AT WHAT AGE INFANT'S RESPONSIBILITY FOR NEGLIGENCE IS PRESUMED TO COMMENCE - PROVINCE OF COURT AND JURY.-1. At fourteen years of age a minor is presumed to have sufficient capacity and understanding to be sensible of danger, and to have the power to avoid it, and this presumption will prevail until it is overthrown by clear proof of the absence of such discretion and intelligence as is usual with infants of that age. 2. While the law fixes no arbitrary period when the immunity of childhood ceases for all purposes, it is a question for the court and not for the jury to say at what age an infant's responsibility for negligence, in any given case, must be presumed to commence. 3. A, son of plaintiff, a boy fourteen years and two months old, was killed by a locomotive of the defendant, under such circumstances that it was admitted that, if he had been an adult, the defendant would not have been responsible for his death, for the reason that it was the result of his own rashness in attempting to cross defendant's track immediately in front of the locomotive. No evidence was offered to show that A was of such feeble mind as to be unable to understand the danger or avoid it. Upon this state of facts the court below entered judgment of compulsory non-suit: Held (affirming the judgment of the court below, Agnew, C. J., and Gordon, J., dissenting), that the law presumes that at fourteen years of age an infant has sufficient capacity and understanding to be sensible of danger and to have the power to avoid it; and this presumption can only be rebutted by proof of the absence of such discretion and intelligence as is usual with infants of fourteen years of age. Held, further, that there being, in this case, no such proof to rebut the presumption, and the essential facts not being in dispute, the non-suit was properly entered. Opinion by PAXSON, J.-Nagle v. Alleghany Valley R. Co. Reported in full, 6 W. N. 510. BOOK NOTICES. [NEW BOOKS RECEIVED. Thompson's Liability of Stockholders: F. H. Thomas & Co., St. Louis. Linder's Reminiscences: The Legal News Co., Chicago. Digest of the American Reports: John D. Parsons, Jr., Albany. Iglehart's Pleading and Practice: Callaghan & Co., Chicago.] CASES ARGUED AND DETERMINED in the St. Louis Court of Appeals of the State of Missouri, from May 1, 1877, to December 11, 1877. Reported by A. MOORE BERRY, Official Reporter. St. Louis: F. H. Thomas & Co. 1879. This is the fourth volume of the published decisions of the St. Louis Court of Appeals, and, as far as the reporter's work is concerned, the best of the series yet issued. A well-arranged abstract of the briefs of counsel has taken the place of the long list of authorities which in the former volumes appeared, without division or arrangement of any kind, and which, at the time, we were compelled to criticise quite freely. This change is an earnest of the reporter's endeavor to do his work as well as it can be done, and will, we are sure, be appreciated by the bar. About 100 decisions appear in full, many of which are of general interest; several of them have heretofore appeared in these columns. An admirable feature of this volume is the plan of giving, in the appendix, a digest of the unimportant opinions filed, instead of printing them all in full, as is the custom in Illinois and other States. Over 100 cases are treated in this manner. The printing and binding of the volume are both good. QUERIES AND ANSWERS. [The attention of subscribers is directed to this department, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.] The following queries received during the past month are respectfully submitted to our subscribers for solution, by request of the senders. It is particularly desired that any of our readers who have had similar cases, or have investigated the principles on which they depend, will take the trouble to forward an answer to as many of them as they are able. QUERIES. 16. JUSTICE OF THE PEACE. - Is a justice of the peace punishable at the suit of the party, or liable to an action at the suit of the party in matters in which he has power by law to hear and determine? B. 17. PARTNERSHIP-PARTITION.-A and B, owners of a saw mill-not partnership property-put it on leased ground, and then A sells his share to C. B does not want C with him, but C will neither buy nor sell. Now can B, by any process in law or in equity, have the property sold and proceeds divided. In other words, is there any partition in personal property as in real estate in law or equity? E. Neosho, Mo. 18. A TESTATOR BEQUEATHES TWO-FIFTHS of all his estate to his "son John Gray, his heirs and assigns forever," in one clause of his will. In another clause of the will he says: "It is my desire that the bequest to my son, John Gray, shall be invested in productive real estate, the title thereto to be taken in the name of his children and their heirs and assigns," not subject to the power of alienation by either of their parents. 1st. What estate does John Gray take? 2d Do the after-born children of John Gray share in said estate (provided he takes less than the fee simple), or is it limited to the children then in existence? an estate tail; and dower is an incident of estates tail. Wash. on Real Prop. (4th ed.), vol. 1, p. 107. But by statute in many of the States, what would have been an estate tail at common law is converted into an estate in fee simple, in which the widow is always entitled to dower. "Dower is always allowed where the husband is seized of an estate that the issue of the wife, if she had any, would inherit, although her husband die without issue, and though it is limited over, in case of his so dying, to another." Wash. Real Prop. (4th ed.), vol. 1, p. 265; Thomas' Coke Upon Lit., vol. 1, p. 667; Northcutt v. Whipp., 12 B. Mon. (Ky.) 65; Daniel v. McManama, 1 Bush. (Ky.) 547. The widow of S. is entitled to dower. W. A. S. Hemingsburg, Ky. No. 14. [8 Cent. L. J. 240.] "Heirs of their body" is definite, and certain that the testator only gave a life estate to S.; and hence his widow is not entitled to dower. See rule in Shelley's case, vol. 2 Wash. on Real Prop., p. 596, et seq.; Riggins v. McClellan, 28 Mo. 23. The domicil of the testator may have some effect as to the proper answer to this question, which is not given by E. J. H.; but in this State, numerous cases since the one cited in the 28 Mo. have settled the doctrine that "heirs of his or her body" created only a life estate. Had it been "to his heirs" generally, it would be different, and S. would have taken the fee. JOSEPH M. LOWE. Plattsburg, Mo. No. 11. [8 Cent. L. J. 240.] The disability which prevents the statute of limitation from running, must be continuous and identical. One disability can not be added to another, so as to prolong the time; and if the statute once begins to run, whether before a disability exists or after it has been removed, no intervention of another and subsequent disability can stop it. Stowell v. Zouch, Plowden, 353; Demorest v. Wyncoop, 3 Johns. Chy. 129; Elgar v. Com., 4 Tyngs, Mass. Rep. 182; Cozzens v. Farran's Ex., 5 Cent. L. J. 427; 1 Johns. N. Y. 165; Contra, Eaton v. Sanford, 2 Day (Con.) 523. C. D. MYERS. Bloomington, Ill. No. 14. [8 Cent. L..J. 240.] At common law, an estate tail is created in S., out of which his wife is entitled to dower. 2 Black., book 2, p. 116; 4 Kent's Com., pp. 48 and 49. This is varied by statutes in most of the States, as in Missouri. 2 Wag. St., ch. 140, sec. 4. A. Y. De Soto, Mo. No. 14. [8 Cent. L. J. 240.] By the common law, the widow is dowable; i. e., entitled to one-third of all the lands and tenements in fee simple, fee-tail, general, or as heir in special tail, of which her deceased husband was seized, either in deed or in law, even for an instant, at any time during the coverture. 7 Greenl. 383. And the widow shall be endowed of real estate of which the husband was beneficially seized for his own use, though for an instant of time only. But the widow is not dow If the crime had been committed at the time the decoy package was sent and received by the defendant, then the same presumption would follow as does the possession of the fruits of a crime recently after its commission. But if no crime had been committed, then, however strong may be the evidence of his moral guilt, no legal guilt can be created out of his receipt of the decoy package, notwithstanding he believed it to be the fruits of a crime which he believed had been committed. See opinion by Dillon, J., in United States v. Whittier, 7 Cent. L. J. 51, and the cases cited. Plattsburg, Mo. J. M. L. No. 13. [8 Cent. L. J. 240.] The most that the holder of the coupon can obtain is to share pro rata in the fund. Sewell v. Brainard, 38 Vt. 364; Miller v. Rutland & R. Co., 40 Vt. 399. 2. If the original holder fraudulently concealed from the holders of the 1 onds the fact that the clipped coupons had not been paid, it would seem, on the principle of estoppel in pais, that the clipped coupons would be inferior to the bonds, as long as the clipped coupons remained in the hands of the original holders; and if the assignees of the clipped coupons had notice of the fraud at the time of their purchase, they would also be inferior to the bonds. LISTON MCMILLEN. Oskaloosa, Iowa. NOTES. MR. JUSTICE HUNT is steadily improving. He is now able to move with the aid of an attendant from one room to another, and can articulate some halfdozen words at a time.-Judge Orsamus Cole has been re-elected to the Supreme Bench of Wisconsin, and Judge Campbell to the Supreme Court of Michigan.- -Samuel H. Buskirk, sometime a justice of the Supreme Court of Indiana, died on the 3d inst. at Indianapolis. He was the author of "Buskirk's Practice," a local work of merit.The recent trial of Giovanni Dugi, at Las Vergas, in New Mexico, before Chief Justice Prince, was perhaps the most polyglot affair since the last court at Babel. Dugi, an Italian, was tried for the murder of Buisson, a Frenchman, before an American judge and a jury of ten Mexicans, one German and one Hebrew. The witnesses spoke five languages, and two interpreters were necessary. -The case of John P. Phair, under sentence of death at Windsor, Vt., is a curious one. He was to have been hanged on the 6th of April, 1877, for the murder of Ann E Frieze, but was reprieved by telegram within an hour of the moment fized for execution. Again he was to have been hanged last week, and he was reprieved for six days. At his trial there was some testimony that he left Rutland, the scene of the murder, several hours before the murder was committed. Now, there is a certain Mr. Downing, of Boston, who is per fectly sure that he saw Phair in Providence, R. I., on the very day of the murder. Downing has visited Phair in his cell and positively identifies him. The case will argued again before the Judges of the Supreme Court. The Central Law Journal. SAINT LOUIS, APRIL 18, 1879. lessor. CURRENT TOPICS. IN Regan v, Baldwin, just decided by the Supreme Judicial Court of Massachusetts, the plaintiff brought suit to recover a portion of the rent paid by him to the defendant, his The lease contained no covenant to repair, but provided that, in case of loss or damage by fire, or other unavoidable casualty, the rent should be wholly or proportionately suspended until the premises should be put into proper condition for use and habitation by the lessor. The premises were greatly damaged by fire, and the defendant, though often requested, refused to repair, and refused to suspend or abate the rent, but exacted the whole amount, which the plaintiff paid under protest, in order to save his estate and business. The court, LORD, J., delivering the opinion, he say: "The amount which he (the plaintiff) seeks to reclaim was a sum which he voluntarily paid; he paid it under no mistake of fact, and it has long been held that money paid voluntarily, under no mistake of fact, can not be recovered back." The case ef Moses v. McPherson, 1 Bl. 219, was denied to be authority. See Brisbane v. Dacres, 5 Taunt. 143; Bacon v. Bacon, 17 Pick. 134; Forbes ▾. Appleton, 5 Cush. 115; Benson v. Monroe, 7 Cush. 125; Brown v. McKinally, 1 Esp. 279. The rule laid down in Regan v. Baldwin has been generally adopted in most of the States. See Woodman v. Stout, 28 Ind. 77; Bucknall v. Story, 46 Cal. 589; Potomac Coal Co. v. Cumberland, etc., R. Co., 38 Md. 226; Montgomery v. Gibbs, 40 Ia. 652; Sheldon v. School District, 24 Conn. 88; Cummins v. White, 4 Blackf 356. And the same rule applies where the person making the payment acts in ignorance of facts which he has the means of knowing. West v. Houston, 4 Harr. 170; Mut. Life Ins. Co. v. Wager, 27 Barb. 354; Real Estate Sav. Inst. v. Linder, 74 Pa. St. 371; Wilson v. Baker, 50 Me. 447; Peterborough v. Lancaster, 14 N. H. 382. There are some cases, however, where a recovery is allowed on grounds of public policy, as Vol. 8-No. 16. when an officer is paid in excess of his legal fees. Robinson v. Ezzel, 72 N. C. 231. And so, though both parties supposed the fees legal. De Bow v. United States, 11 Ct. of Cl. 672. A mere apprehension of legal proceedings will not render a payment involuntary. Town of Ligonier v. Ackerman, 46 Ind. 552, and cases cited, supra. Nor will a threat to sell land illegally taxed for payment of the tax. Detroit v. Martin, 34 Mich. 170. Making a protest against the payment does not necessa rily render it involuntary. Id. and cases cited, supra. THE dictum of the great English commentator, that a man's estate should not be made to depend upon a comma, has been followed, in spirit at least, by the Court of Appeals of New York, which, in the late case of Lambert v. People, have declared that his liberty shall not hang on a semicolon. The prisoner was convicted of perjury, in swearing to an affidavit as president of an insurance company, which affidavit was attached to a statement required to be made and deposited with the State Superintendent of Insurance annually. The point in dispute is best seen in an extract from the opinion of MILLER, J.: "One of the most serious questions presented by the error-book in this case, arises in reference to the construction placed upon the affidavit in which the alleged perjury is charged to have been committed. It is claimed by the counsel for the prisoner that the affidavit was made upon ‘information, knowledge, and belief,' while the indictment avers that the oath was absolute and unqualified, and the traverse simply avers it to be untrue. The affidavit was appended to statements to be made by life insurance companies, which, with the verifications, were prepared and issued in blank form by the Insurance Department. The first part of the affidavit states that the deponents named therein are the officers of the said company, and that on the 21st day of December last all the above described assets were the absolute property of the company, free and clear from any liens or claims, except as above stated.' (Here a semicolon is inserted, and then follows an allegation) that the foregoing statement with the schedules and explanations hereunto annexed and by them subscribed, are The a full and correct exhibit of all liabilities,' etc., 'on the said 31st day of December last with the year ending on that day;' and the concluding clause preceded by a comma, viz. 'according to the best of their information, knowledge, and belief respectively.' claim of the prosecution is, that all matters preceding the semicolon are stated unqualifiedly, and that the remainder is qualified by information, knowledge, and belief. It will thus be seen that the legality of the conviction, so far as the question considered is concerned, depends entirely upon the insertion of a semicolon between the words stated in the sentence referred to instead of a comma. The point is certainly a very fine one; but it must be determined in strict accordance with the principle of construction applicable to language which is employed in such a connec. tion. It certainly would be going very far to hold that a person could be convicted of a crime as flagrant as that of perjury, which depends entirely upon the question arising as to the intention of the party, and can only be committed with full knowledge of the falsity of the allegation, and which must at the same time be willful, corrupt, and malicious, upon the mere insertion of a single dot in a sentence, and solely upon the question of precise, accurate, and grammatical punctuation. Upon a question so close and exact, it cannot, we think, be claimed that it must be held as a matter of law under the circumstances existing that the accused committed willful and corrupt perjury. The crime of perjury cannot be predicated upon such a state of facts, as the essential elements of willfulness, corruption, and malice are not manifest. possible misconception, or a mistake in swearing as to the construction of a written instrument, is not enough to warrant an indictment and conviction for perjury. Rex v. Crispigny, 1 Esp. 280; U. S. v. Conner, 3 McLean, 573; U. S. v. Stanley, 6 Id. 409; 3 Whart. C. L. §§ 2199, 2200; Steinman v. McWilliams, 6 Penn. St." 170, 178. The conviction was reversed. A AN action is pending in the English courts against a railroad company, on behalf of the owner of a fishery, for damages arising from the escape of creosote, which killed his fish. The defense is that the creosote leaked through the vessels in which it was sent by the consignor. INNOVATIONS UPON THE RULES OF EVIDENCE. III.-ADDENDUM TO No. II. AND AN EXAMINATION OF THE ADMISSIBILITY OF PAROL TESTIMONY TO VARY THE RIGHTS OF CO-SURETIES TO CONTRIBUTION. Before proceeding with the last of the papers we set out to write under this general head, we desire to add a word to the discussion of the subject of the last paper. Ante, p. 223. Since writing that paper our attention has been called to Ins. Co. v. Mowry, 6. Otto 544. The Supreme Court have there followed the precise line indicated in Ins. Co. v. Davenport. The opinion is written by Mr. Justice Field, who both in his statement of the elementary rule and of the doctrine of estoppel, utterly ignores the exception introduced by Mr. Justice Miller in Ins. Co. v. Wilkinson. And it is a significant fact that while this latter case is at the head of the list of authorities cited in behalf of the defendant in error, it is not mentioned in the opinion of the court. But the doctrine upon which the latter case was decided is wholly ignored. And we venture the prediction that the heresy in the opinion in that case will never be repeated by that high court. But to proceed to our last proposition. Co-obligors or co-promisors, nothing appearing to the contrary, are equally bound as principals to their common obligee or promisee. But as there is usually in the instrument no obligation, covenant or promise operating between the obligors, covenantors or promisors, and as their relations between themselves are usually not fixed by the instrument, this relation may be shown by parol. For while, as between the parties obligor and obligee, promisor and promisor and promisee, or covenantor and covenantee, the instrument is the measure of their rights, yet as the relations between the co-makers are not fixed by the instrument, they must be sought elsewhere, either in writing or by parol. And although this seems at first sight to be an exception to the rule discussed in our two former papers, yet the distinction is so marked that it can hardly be said to be even an exception, but is rather, without the rule itself. There are two varieties of the relation of co-obligor, covenantor or promisor in which controversies frequently occur, and which give rise to the necessity of settling the rights of |