they can be upheld only when they "shall be adjudged to be just and reasonable." The same crite * * * formance within a year. (3) An exception to the unresponsive portion of an answer to a proper question, answered without objection, does not present a ques-rion is uniformly applied in this country, and no limition for review, a motion to strike out being the proper remedy. (4) Where letters offered in evidence aud excluded do not appear in the printed record, it must be assumed, on appeal, that the trial court rightly determined that they did not relate to the pending controversy. Second Division, Feb. 25, 1890. Warren Chemical and Manufacturing Co. v. Holbrook. Opinion by Parker, J. Affirming 44 Hun, 628. TAXATION-ASSESSMENT-REVIEW OF PROCEEDINGS. — (1) An adjudication as to the value of property in a contest of one year's assessment is conclusive upon the same assessors for the next year, in the absence of change of value, though some of them have received new terms of office. (2) An allegation that relators appeared before the assessors on grievance" day, and asked to have the assessment corrected, not denied or put in issue in the return, must be taken as admitted. (3) Laws of New York of 1880, chapter 296, section 2, providing that a certiorari shall not stay proceedings of officers assessing or collecting taxes, payment of taxes under protest, on the ground that the assessment is excessive, and proceedings are pending for correction thereof, will not bar further prosecution of the proceeding. March 18, 1890. People, ex rel. Warren, v. Carter. Opinion by Earl, J. Ruger, C. J., dissenting. Affirming 8 N. Y. Supp. 937. ASSESSMENT-REVIEW OF PROCEEDINGS.-In a proceeding to review an assessment, it cannot be objected that relators did not seasonably object to the assessment where they allege that they appeared before the assessors on the proper day, and gave notice of judgments theretofore entered reducing assessments for previous years, and the return states, that relators having complained that the valuation was too high, defendants reduced the same. March, 18, 1890. People, ex rel. Warren, v. Carter. Opinion by Earl, J. Ruger, C. J., dissenting. Affirming 8 N. Y. Supp. 937. ABSTRACTS OF VARIOUS RECENT DECISIONS. 6010 - CARRIERS-LIMITING LIABILITY.-A railroad company that has made no reduction in its freight rates in consideration of a stipulation in a bill of lading exempting it from loss by fire; that has furnished its agent with no form for a bill of lading not containing the "fire clause;" and that has given him no authority to submit to the shipper the alternative of paying a higher rate for a shipment with the common-law responsibility attaching to the company is liable for goods destroyed by fire, though the company's officers testify that the company had two freight rates under the restricted liability, the other without —and that, if the shipper had so requested, permission would have been given to ship under a contract without the "fire clause" in it. The stipulation, being unreasonable and unjust, is not a valid limitation of the company's common-law liability as a common carrier. It is now too well settled to admit of debate that the common-law liability of common carriers may be limited by special contract, even to the extent of denuding them of the character of insurers, except as against their own negligence, or that of their agents and servants; and the limitation may be, and is generally, embraced in the bill of lading delivered to the shippers at the time. It is not every such special contract, however, that is effective. To be valid, it must be fairly obtained, and just and reasonable. Under the English Railway and Canal Traffic Act of 1854 (17 & 18 Vict., chap. 31, §7), such stipulations are called "conditions," and tations of the carrier's common-law liability, in whatever form made, will afford protection unless just and reasonable in the eyes of the law. Railroad Co. v. Lockwood, 17 Wall. 357; Hart v. Railroad Co., 112 U. S. 338; Marr v. Telegraph Co., 1 Pickle, 542; Transportation Co. v. Bloch, 2 id. 397. Though such is the generally accepted test, the use of these words (“just and reasonable") will not always meet the requirements of investigation. What will be just and reasonable in one case may not be so in another. The justness and reasonableness of the condition or limitation must of necessity depend upon the peculiar facts and circumstances of every case-the nature of the article to be conveyed, the hazard of the transportation, the surroundings of the parties at the time, and the mutual advantages given and received. Referring to the burden and weight of proof, an eminent British author says: "The burden of proving the reasonableness of a condition lies upon the company. The most cogent evidence in favor of reasonableness is to show that the condition was not forced upon the customer, but that he had a fair alternative of getting rid of the condition, and yet agreed to it." Redman Carr. (2d ed.), p. 66; citing Lewis v. Railway Co., 47 L. J., Q. B. 131. In further treating on the same subject, the same writer, on page 71, says: "To enable a company to rely on an alternative contract offered to the customer, it must appear that such alternative was itself reasonable. A company cannot offer the choice of two unreasonable conditions, and then rely on the one actually chosen." Citing Lloyd v. Ry. Co., 15 Ir. C. L. 37. To the same effect as the latter quotation is the Marr Case, decided by this court in 1886. There the telegraph company was shown to have bad four different rates of charges, with as many different degrees of liability. They were all held to be unreasonable, and the fact that the customer choosing one rate had the option of taking any one of the other three was of no avail to the company, in an action for damages. Marr v. Tel. Co., 1 Pickle, 545. The alternative must be both reasonable and bona fide. If either unreasonable or colorable only, it will be unavailing as a defense to the action against a carrier. A company standing before the public as a common carrier, and enjoying the advantages and franchises as such, must be ready to do the business of a common carrier, with the full measure of responsibility imposed by the common law; and it may at the same time offer to do the same business with a limited liability, the limitation resting upon a sufficient consideration. Au offer or readiness to transport the goods of its customer with the one or the other degree of responsibility, at his option, is as little as can be required of any common carrier. Less than this does not present a bona fide and reasonable alternative. Reduction of freight charges is the usual consideration for the diminution of responsibility on the part of the compaay. One of the leading principles deducible from the English cases is stated by Mr. Redman in these words: "A condition is reasonable which reduces a company's liability to a minimum, if it is coupled with compensating advantages to the customer (such as cheapness of carriage), and the latter has the alternative of getting rid of the condition by paying a reasonably higher rate." Redman Law Ry. Carr., p. 75, § 2. This language puts the law clearly, and meets our unqualified approval. It is reproduced as the law of the two countries in a recent American work. 2 Amer, & Eng. Cyclop. Law, 819. These clauses, similar to the one before us, when based upon a sufficient consideration, have by the Supreme Court of the United States, and by this court, been held to be valid, and to protect the company from liability for loss by fire, caused otherwise than by the negligence of the company or its agents. York Co. v. Railroad Co., 3 Wall. 107; Dillard v. Railroad Co., 2 | the contract in its entirety. Hayward v. Leonard, 7 Lea, 288. In the latter case, the court said: "A lower rate of freight, or something equivalent, will be a sufficient consideration for the stipulation." 2 Lea, 293. In the former it is broadly intimated that a reduction of charges will be presumed to be the consideration for such a stipulation, the language of the court being: ** * *There is no evidence that a consideration was not given for the stipulation. The company, probably, had rates of charges proportioned to the risks they assumed from the nature of the goods carried, and the exemption of losses by fire must necessarily have affected the compensation demanded." 3 Wall. 113. In speaking of a stipulation for a limited liability in a railroad ticket, the New York Court of Appeals said: "Like all contracts, to render such an one valid, it is indispensable that it have some consideration, which it would not have if the passenger paid the full fare fixed by law. *** If the service is reduced, the amount of the reward must be reduced in proportion; and, if the company is relieved from risk, it must make compensation for that relief by the reduction of fare or otherwise." Bissell v. Railroad Co., 25 N. Y. 442. The performance of an act which a party is under a legal obligation to perform does not constitute a good consideration for a promise. Add. Cont., § 4. Hence a mere agreement by a common carrier to transport goods furnishes no consideration for a stipulation for less than common-law liability. Laws. Carr., § 212. Tenn. Sup. Ct., Jan. 30, 1890. Louisville & N. R. Co. v. Gilbert. Opinion by Caldwell, J.; Folkes, J., dissenting. Pick. 181; Smith v. First Cong., etc., 8 id. 178; Cullen v. Sears, 112 Mass. 308; Britton v. Turner, 6 N. H. 481. In other States, like New York, a more rigid rule has been adopted, founded upon the policy of securing full and faithful performance of contracts and of discour aging parties from abandoning their contracts or exe cuting them as their interest or caprice may dictate. Smith v. Brady, 17 N. Y. 173. The severity of the rule has however been much relaxed in subsequent cases in that State, under a very liberal application of the doctrine of "substantial performance." Glacius v. Black, 50 N. Y. 145; Johnson v. De Peyster, id. 666; Phillip v. Gallant, 62 id. 256; Woodward v. Fuller, 80 id. 312; Heckmann v. Pinkney, 81 id. 211. Without now considering or deciding in what cases, if any, a party, who has not substantially performed his contract in its entirety, may recover on a quantum meruit, it would seem clear, from the general principles govern ing the enforcement of contracts, that to entitle a party to recover the contract price in an action on the contract, he must have made a substantial performance of his agreement. But this does not mean exact performance in every slight or unimportant detail. In many cases, such as building contracts, notwithstanding the most honest, diligent and intelligent effort to fully perform in every particular, yet, owing to oversight, inadvertence or some excusable mistake, very often some slight omissions or defects may be discov ered. To hold that a builder could not in any such case recover on his contract would be too rigid a rule to apply to the practical affairs of life. Substantial performance is all that reason or the law requires. Literal compliance in every detail is not required, This is the rule applicable to contracts generally. Thus, in the case of contracts for the sale of real es tate, where the difference or deficiency in certain respects between the property contracted for and that tendered for conveyance is slight in substance, and not material to the enjoyment of the property or inducing the contract-as for example, a difference of a few days in a long term for years, or a slight deficiency in the quantity of the land-it may be made a matter of compensation in value upon equitable principles. Leake Cont. 833. Minn. Sup. Ct., Jan. 29, 1890. Leeds v. Little. Opinion by Mitchell, J. EXTRADITION DISCHARGE OF PRISONER ARREST IN OTHER PROCEEDINGS.-Upon a warrant issued by a commissioner of this court, the prisoner was brought here by the marshal from the State of New Jersey, for examination in a proceeding to extradite him to Austria, upon a charge of embezzlement of public funds. The charge not being sustained, the commissioner discharged the prisoner, and the latter, upon leaving the commissioner's room, was arrested by the sheriff upon an order of arrest in a civil suit in the State court to recover the same funds. Both proceedings were promoted and prosecuted by the same agents and attor neys. Held, that the prisoner was entitled to immun CONTRACT-SUBSTANTIAL-PERFORMANCE.-Where a contractor has in good faith made substantial performance of the terms of a building contract, but there are some slight omissions or defects which are not so essential as to defeat the object of the parties, but are readily susceptible of being remedied so that an allowance out of the contract price will give the other party full indemnity, and, in substance, what he bargained for, the contractor, in an action on the contract, may recover the contract price, less the damages on account of the omissions or defects; and if in such case the other party wishes to claim a deduction on account of such defects or omissions, the burden is upon him to allege and prove his damages. Defendant's contention is, that plaintiffs' contract being an entirety, they to be paid a gross sum on completion of the job, they cannot recover on the contract until it has been fully performed in all respects; that, at most, they can only recover for the reasonable value of the labor and material furuished and performed; and that, in the absence of any evidence showing how much it would cost to remedy the defect referred to, there is nothing to show how much, if any thing, the plaintiffs are entitled to recover; that the burden of showing how much it would cost to remedy the defect was on them, and not on defendant. The question what, if any thing, a contractor, who has in some respect failed to completely perform his contract according to all its provis-ity from arrest until the lapse of a reasonable time to ions, may recover, and whether upon the contract or return to New Jersey, whence he had been brought, on a quantum meruit, is one of some difficulty, and and one day was allowed for that purpose. Held, which has given rise to some diversity of judicial de- further, that to prevent conflicts of jurisdiction, it was cision, especially in the case of building contracts, or competent for the commissioner to direct the marshal others where the party has expended labor and mate- to take the prisoner to the place whence he had been rial upon the land of another which cannot be returned brought, and that he be thereupon discharged. The to him, but which the owner of the land must necescase is in some respects different from that of In re sarily retain and have the benefit of. In some States, Reinitz, 39 Fed. Rep. 204, recently decided by this such as Massachusetts and New Hampshire, the courts court. There, the prisoner, having been extradited to have adopted what is sometimes called the modern this country, and on trial acquitted, was immediately equitable rule, that the party who has the possession arrested in an action of debt, but was discharged ou and enjoyment of the labor and materials of another habeas corpus, and given a reasonable time to remust make compensation for what he has received afturn to Ireland, from whence he came. The printer full allowance has been made to him for any dam-ciples declared by the Supreme Court in the case of age he may have sustained by the non-performance of United States v. Rauscher, 119 U. S. 407, which ad special purpose only, is a presence which no other persons have a right to take advantage of; nor under the law and the treaty that wrongfully forced him here, should he be allowed to suffer disadvantage until, by voluntarily remaining, he waives the privilege and protection to which he is entitled until he has opportunity to return, U. S. Circ. Ct., S. D. N. Y., Jan. 4, 1890. In re Baruch. Opinion by Brown, J. 41 Fed. Rep. 472. judged a subsequent immediate arrest for crime illegal, were there held equally applicable to a subsequent arrest in a civil suit for debt. In the present case the prisoner was not delivered to this country by a foreign government, but was apprehended and held in custody by this government, for the purpose of being delivered to Austria, in accordance with the treaty stipulations, provided, upon the preliminary hearing, a prima facie case should be established. Though some of the arguments and considerations that support the decisions in the case above cited do not apply to the present case, the fundamental principle which was laid down as the basis of the decision in the Rauscher Case seems to me to be equally applicable here. That principle is that the proceeding under the treaty is for a limited and defined purpose only, and that the exercise of jurisdiction over the prisoner for any other purpose than that mentioned in the treaty, until he has an opportunity to return, is a fraud upon the rights of the party extradited, and bad faith to the country which permitted the extradition. 119 U. S. 422. Upon this general principle, in the very recent case of Hope, who had been brought from California upon the requisition of the governor of this State, upon inter-State extradition proceedings, and who, after conviction, and after serving out his sentence, was again immediately arrested upon a requisition of the governor of Delaware to the governor of this State for trial for an offense committed in Delaware, the prisoner was discharged upon habeas corpus before Wheeler, J., in this court; and Governor Hill, after argument, upon the same ground refused the warrant for removal, until after the lapse of a reasonable time for the accused to return to California, whence he had been brought to this State. 40 Alb. L. J. 441. The present case, as it seems to me, cannot be distinguished or excepted from this general principle. If the extradition proceeding and the presence and custody of the prisoner here are for the single-named purpose only, and if the exercise of any other jurisdiction over him, before he has a reasonable time to return, is a perversion of the treaty and the law, a fraud upon the rights of the accused-it is manifestly immaterial at what stage of the extradition proceedings, or in what place in the course of those proceedings, such a perversion or interference with the rights of the prisoner takes place. The same principles must apply to the whole proceedings-the same in the earlier stages as in the final. Here the prisoner was brought from another State before a commis-der a contract he cannot recover the money he has sioner of this court upon an extradition proceeding, and for the purpose of a preliminary trial only. On this preliminary trial he was discharged. Any interference with the right of return, within a reasonable time, to the place from which the prisoner had been taken under the Federal authority, is as much a malappropriation of the extradition proceeding, and a perversion of its purpose, as if the arrest were after a discharge under final trial. The case is not indeed within the letter of section 5275 of the Revised Statutes of the United States, since that section applies only to prisoners delivered by foreign countries to this country; but that section does give statutory sanction in that class of cases to the general principle made applicable by the Supreme Court to extradition proceedings in general; and as above stated, the same general principle is applied to cases of inter-State extradition, although there is no statutory provision covering this point. As the prisoner was therefore brought here involuntarily from New Jersey by force of the Federal law, under treaty provisions, and for no other purpose than an examination under the treaty and the Federal law, common justice demands that he be treated as under the protection of that same Federal law until the lapse of a reasonable time for his return after his discharge. During this period, his enforced presence under a Federal law for treaty purposes, and for this INFANCY CONTRACT AVOIDANCE. Plaintiff, a minor, with the assent of his mother, agreed with defendant to work for him, and that a portion of his wages might be applied to the payment of a debt due defendant from the estate of the deceased father of plaintiff. When the debt had been paid defendant discharged him. Held, that in the absence of a showing that he had any interest in preventing defendant from collecting his debt out of the father's estate, plaintiff was entitled to avoid the contract, and recover either upon a quantum meruit or upon his contract for the balance due him for services rendered. It is clear that the plaintiff was not bound to pay his father's debts; that the contract made in this case was not for necessaries, and was not necessarily beneficial to the plaintiff; and that by our decisions, in order to avoid such a contract, it is generally not necessary that the minor put the other party in statu quo or return the consideration received. Chandler v. Simmons, 97 Mass. 508, 514; Bartlett v. Drake, 100 id. 174; Walsh v. Young, 110 id. 396; Gaffney v. Hayden, id. 137; Bradford v. French, id. 365; Baker v. Stone, 136 id. 405; McCarthy v. Henderson, 138 id. 310. Gaffney v. Hayden, ubi supra, shows that, if the amount of the wages agreed upon had not been as much as the plaintiff's services were worth, the fact that the plaintiff had received his pay while a minor would not prevent him from avoiding the contract, and suing on a quantum meruit. In the opinion the cases of Stone v. Dennison, 13 Pick. 1, and Breed v. Judd, 1 Gray, 455, which the present defendant cites, are considered and distinguished. It is suggested that the plaintiff's agreement that the defendant should apply a part of the wages to the extinguishment of the father's indebtedness makes the actual application of the wages by the defendant equivalent to a payment, in pursuance of this agreement, and before it was revoked, of money by the plaintiff to the defendant for the purpose of extinguishing this debt. It is argued that if a minor voluntarily pays money un paid, when he has received any benefit from the contract, or any part of the consideration, except by rescinding the contract; and that a contract cannot be rescinded unless the other party is put in statu quo; and that, in the present case, it does not appear that the defendant can be put in statu quo because he may have lost his remedy against the estate of the father. See Shurtleff v. Millard, 12 R. I. 272; Robinson v. Weeks, 56 Me. 102; Sparman v. Keim, 83 N. Y. 245; Adams v. Beal, 67 Md. 53; Ex parte Taylor, 8 De Gex, M. & G. 254. It does not appear that the plaintiff did or could receive any benefit, directly or indirectly, from paying his father's debts. It appears that the father died seised of real estate "which he devised to his widow," and which the widow conveyed to his eldest son, the brother of the plaintiff; but it does not appear that the plaintiff was entitled to receive any property from the estate of his father, and therefore it does not appear that the plaintiff bad any interest in preventing the defendant from collecting the debt out of the estate of the father. The action is not to recover money paid. The contract, so far as it related to the payment of the father's debt, would, in ancient times, have been held absolutely void, if made by an infant. We think that the principle contended for, whether it is consistent or not with our decisions, is not applicable to this case. It is necessary for the protection of an infant that he should not be bound by a contract to pay out of his earnings the debt of another person, and the defendant had no right to rely upon such a contract, and forego any remedies he might have had against the estate of the father. Mass. Sup. Jud. Ct., Jan. 2, 1890. Dubé v. Beaudry. Opinion by Field, J. MARRIAGE-DOWER-VALUE. Where the husband and wife are both living, the rule for computing the present value of the wife's contingent right of dower is to calculate the expectation of life of the wife, and the probability of the joint lives of the husband and wife, and from the present value of an annuity payable while the wife lives, deduct the present value of an annuity payable while both are living. What is the real value of the contingent right of dower relinquished, by the aid of modern science is capable of a definite ascertainment; and it is easy to ascertain whether an undue valuation is placed upon it. The rule of computation of the present value of a dower interest is much discussed by the judge, and by the able counsel for the appellees, afterward the judge who delivered the opinion in the case of College v. Powell, supra, and by the reporter, Mr. Conway Robinson, in an elaborate note in the case of Wilson v. Davisson, 2 Rob. (Va.) 384, 419. See however as to this the table prescribed by law (Code Va., § 2281), prescribing the method by which the present value of an annuity, payable at the end of every year that a person, at a given age, may be living, for the ages therein stated. But that table and the prescribed rule will not apply to a case like this; that will apply to a case where the party is entitled at the present to an annuity at the end of each year, for life; but this is a case where there is only an expectation of an annuity. In the case of an annuity, the expectation of life being ascertained by the longevity tables, the calculation is simple (2 Rob. Pr., Old, 380); but where the expectation of life of one party is to be ascertained, and the expectation of death of the other party is to be determined, the question is not determinable by the table in question. If as is suggested, the expectation of life of the wife is to be ascertained, and the expectation of the life of the husband ascertained, and one subtracted from the other, the result is wholly unsatisfactory to common reason. The two parties may be of equal age, and the result would be nothing, whereas the decisions and reason both concur that in every case the contingent right of dower is a valuable right in the wife aud an incumbrance upon the property of the husband, which would hinder, if not prevent, a fair disposition of his real estate for its value. And when the wife is actually older than the husband the result would be the reductio ad absurdum, her contingent right of dower being then less than nothing. The other suggestion made in the argument, that the contingent right of dower shall be ascertained by the evidence of witnesses, is one so full of uncertainty, and so opposite to any thing like uniformity, that it will probably never be adopted by the courts. Mr. Minor (2 Inst. 156) says the mode of estimating the value of the wife's contingent dower interest" is a problem more difficult of determination than the value of the life estate of one who is already a widow, since it involves the computation, not only of the duration of one life, but the chances of surviviorship besides, as between the husband and wife. By the aids of the tables of mortality however and the calculus of chances, tables have been formed exhibiting the present value of a right of dower of a married woman for every $100 worth of her husband's estate whereof she is dowable, for all probable ages of both parties, thus,"-giving a brief extract from the tables referred to, which is taken, as stated, from extensive tables of the description indicated, found in the American Almanac for 1835, page 88, referring to Wilson v. Davisson, supra, which we have seen, and which is applicable to the case of an annuity, In the case of a widow, her interest is readily ascer tained, in any given sum, by the method prescribed in the above-cited section of, the Code of Virginia. But to ascertain the present value of a contingent right of dower, we must calculate by the rules for the ascer tainment of the expectation of life of a person; not only the expectation of life of the wife, but the proba bility of their joint lives. If this is terminated by the death of the wife, she gets nothing; if by the death of the husband, her annuity then commences. From the probability of the life of the wife, deduct the proba bility, not of the life of the husband, but the proba bility of the life of both; and the result is the probability that the wife will be living, and the husband dead. And if, from the probability that the wife will be living at the end of each year, we deduct the probability that both will be living, the result is the fraction representing the probability that the husband will be dead, and wife living. And so, if from the present value of an annuity payable while the wife lives, we deduct the present value of an annuity pay. able while both are living, the remainder will be the present value of an annuity payable while the wife survives the husband. The tables in the American Almanac of 1835 have been compiled upon this principle; and they will be found set forth in full in the Quarterly Law Journal, volume 4, page 1, published in Richmond, in 1859, where the calculations can be found, illustrating the principles upon which they are based; but these cannot properly find place in our opinion, and we cite them, simply. An interesting article by T. B. Sprague, M. A., editor of the Journal of the Institutes of Actuaries, will be found in the Encyclopedia Britannica, volume 2, title "Annuities." See also Bailey's "Life Annuities and Assurances;" De Morgan's paper, "On the Calculation of SingleLife Contingencies," Assur. Mag. 12, 348, 349; Gray's Tables & Formulæ, chap. 8; preface to Davies' Treatise on Annuities; Headriske's papers in the Assur. Mag., No. 1, p. 1, and No. 2, p. 12; 4 Assur. Mag. 185; De Morgan's "Account of a Correspondence between Mr. George Barrett and Mr. Francis Bailey." The calcu lation, in this case, upon the basis of thirty-seven years for the wife and forty-two years for the husband, contained an error, as made by the commissioner, which however appears to be corrected in the decree rendered; and if these tables of longevity or expectation of life are to be accepted, as they must be, in the absence of any thing more simple and satisfactory to the ordinary understanding, there is no error in the decree complained of. But it may be found worthy of consideration by the Legislature whether this valuable property right of the wife, and incumbrance to the alienation of the property of the husband, might not be fixed by law at a certain proportion in every case, so much on the $100 worth of property, as the present value of a vested dower right, without regard to age-a sum in gross. This was done in Hey. ward v. Cuthbert, 1 McCord, 386, by the commissioner, and approved in the case of Wright v. Jennings, 1 Bailey, 280, in the following terms: "It appeared that the commissioners had assessed one-sixth of the feesimple value of the estate, which assessment was sustained; and the same rule has generally prevailed since that period, and I believe, has been approved by experience. We have no table of life annuities in this State (South Carolina), and if we had, the commissioners usually appointed for the performance of this duty would be very incompetent to apply it to the various cases that might arise. I think therefore that we had better adhere to the rule adopted in the case of Heyward, except in extreme cases of youth, on the one hand, or of age or infirmity, on the other, in which something, more or less, according to circumstances may be allowed." The dower interest is fixed, by an arbitrary rule, at one-third for life. Being ascertained, its present value might be fixed according to the legis lative mind; and possibly the present value of a contingent right of dower to a wife might be fixed at a proportion definite and certain, which would meet the ends of justice, and save costs to persons worthy of high consideration. We however make no departure from established practice in this State, but adhere to the rule usually followed by our courts, and rest upon the tables of longevity, relied on by the Circuit Court. Va. Sup. Ct. of App., Jan. 9, 1890. Strayer v. Long. Opinion by Lacy, J. MUNICIPAL CORPORATION COUNCIL RULES OF PROCEDURE.-Under a regulation adopted by a city council, providing that "a majority of the members elected and voting shall be necessary to choose any officer elected by the board," a candidate who receives six votes of the twelve members present, three not voting, is legally elected. It is urged that the appellee should have received a majority of the entire council, and that the mode of proceeding by which the appellee was elected is in violation of the organic law of the city. Besides it is further argued that the three members, who declined to vote for either the appellee or the appellant, offered to cast their votes on the sixth ballot for the candidate who had been dropped, and this was denied them. We perceive no reason why the council could not adopt a rule which would facilitate the proceedings, and result in an election that otherwise would have prevented the election altogether at the whim of the minority. The charter did not require a majority of all the members present to vote in order to make the election valid. There were nine votes cast out of the twelve, three members declining to vote for either candidate; and in the absence of an express statute requiring a majority of the entire body, a plurality of the votes cast, there being a quorum present and voting, elected the officer. Mr. Dillon says: If all the members of the select body or committee, or if all of the agents, are assembled, or if all have been duly notified, and the minority refuse or neglect to meet with the others, a majority of those present may act, provided those present constitute a majority of the whole number. In other words, in such case, a major part of the whole is necessary to constitute a quorum, and a majority of the quorum may act." 1 Mun. Corp. 296. There was nothing unreasonable in the regulations adopted for the election, and if there had been no such rule, the appellee was entitled to the office, because he obtained a majority of the nine votes cast, the entire body being present. Ky. Ct. App., Jan. 30, 1890. Morton v. Jungerman. Opinion by Pryor, J. NEGLIGENCE-TRESPASSER-INFANT.-A declaration alleging that defendant left a freight car standing on one of its side tracks, and negligently allowed the door, which it knew was not properly attached to the car, to remain open and unlocked, knowing that it would be an enticing object to children, and that plaintiff, eleven years old, travelling on the street in the vicinity of the side track, saw the car with its door open, and was thereby enticed to look into it, and in so doing carefully touched the door, which fell upon him, states uo cause of action. Mass. Sup. Jud. Ct., Jan. 3, 1890. McEachern v. Boston & M. R. Co. Opinion by W. Allen, J. oating that it was not to be used. As the plaintiff was on the premises by invitation, as a customer, at the public dining-room kept by defendant, it was the duty of the defendant to keep the room, and the approach or approaches thereto, in a reasonably safe condition for ingress and egress, and to use reasonable care, in order that no injury might occur in passing through the premises to or from the outer door. Sweeny v. Railroad Co., 10 Allen, 368, 373; Carleton v. Steel Co., 99 Mass. 216; Severy v. Nickerson, 120 id. 306. It was, on the other hand, equally the duty of plaintiff herself to use due care such as reasonably prudent and cautious persons would use, in making her ingress or egress from the premises. Sweeny v. Railroad Co., ubi supra. While the burden is on the plaintiff to show this as an affirmative proposition, it is not necessarily to be shown by affirmative evidence. The circumstances under which the injury was received being fully proved, if nothing appears in her conduct, either of act or neglect, to which the injury may be attributed, wholly or partially, an inference of due care may be drawn from the absence of all appearance of neglect. Mayo v. Railroad Co., 104 Mass. 137. When facts are undisputed, the inferences to be drawn from them may be doubtful and disputable. In such case the question of ordinary care would be within the province of the jury to settle, under proper instructions. But where facts are undisputed, and also, if viewed in the light of common knowledge and experience, necessarily show that the plaintiff did not use the ordinary precautions and vigilance which persons of reasonable prudence exercise, and no excuse for this appears, it is the duty of the court to direct a verdict for the defendant. Wheelock v. Railroad Co., 105 Mass. 203; Chaffee v. Railroad Corp., 104 id. 108. Mass. Sup. Jud. Ct., Jan. 2, 1890. Gaffney v. Brown. Opinion by Devens, J. NOTES. THE question of capital punishment has been twice that carefully considered in this country within the last fifty years; first by a select committee of the House of Lords in 1847, which reported that "almost all witnesses and all authorities agree in opinion that for offenses of the gravest kind the punishment of death ought to be retained;" secondly, 1865-66, by a royal commission, presided over by the Dake of Richmond, which, though 'forbearing to enter into the abstract question of the expediency of abolishing or maintaining capital punishment, on which subject differences existed between them," recommended the punishment of death be maintained for all murders deliberately committed with express malice aforethought, such malice to be found as a fact by the jury," and also for all murders committed in the perpetration of arson, burglary and other serious felonies. Four out of the twelve commissioners (Dr. Lushington, Mr. Bright, Mr. Neate and Mr. Ewart) signed a declaration to the effect that " capital punishment might safely and with advantage to the community be abolished, while a fifth, Mr. Justice O'Hagan, would have signed it but that he doubted whether public opinion in the country was yet ripe for the acceptance of such a change. Amongst the witnesses examined (who in point of number were evenly balanced), Lord Bramwell, Colonel Henderson, Sir George Gray and Mr. Davis, the ordinary of Newgate, were of opinion that capital punishment has a strongly deterrent effect, while Mr. Justice Denman thought, that on the whole, more was done by capital punishment as it then existed (i. e., before the abolition of public executions) to induce murders than to prevent them; the late Chief Baron Kelly thought that the most severe sec. |