mother, claiming pay for the support and education of the child for the time intervening between the decree granting the divorce and the filing of the petition. The petition was dismissed, and on error it was insisted that the court should have retained the petition and granted the relief sought. The Supreme Court, in reversing the decree of the court below, declared itself unable to appreciate the force of the objection that because by the decree of divorce, the custody of the child was given to the mother, the defendant was absolved from his further support and nurture. As it was the father's neglect of duty that produced the divorce and warranted the decree giving the custody of the child to the mother, the court rightly observed that his being adjudged an improper person to have the custody, care and education of his child could not release him from both his natural and legal duty. The money decreed to the mother having been declared to be for her use, and there being no implication that any portion was intended as an equivalent for the support of the child, it was held that the defendant in error was liable for necessary and proper expenditures for the child's support, but only for such support as the child was unable himself to procure; and that after he became able to earn a support, in whole or in part, the father was not bound to maintain him in idleness, but only to pay for such portion as the child could not earn by reasonable effort. See also Conn v. Conn, 57 Ind. 323; Courtright v. Courtright, 40 Mich. 633; Buckminster v. Buckminster, 38 Vt. 252; Holt v. Holt, 42 Ark. 495. Obio Sup. Ct., Dec. 13, 1887. Pretzinger v. Pretzinger. Opinion by Dickman, J.

RAILROAD COMPANIES-INJURIES AT CROSSING — CONTRIBUTORY NEGLIGENCE.-Plaintiff attempted to pass a railroad crossing with a team and wagon. She had just observed the passenger train pass, and was not expecting any other train at that time, although she had seen a freight train standing on the track, headed that way, in the town which she had just left. The railroad at that point cuts through a hill, so as to obstruct the view from the wagon road. She was familiar with the crossing, having crossed there many times before, and had always used great care in looking for trains. On this occasion she did not stop to look or listen; her team came into collision with a passing engine, and one horse was killed and wagon was overturned. Held, that plaintiff was guilty of contributory uegligence. Will the fact that a train is behind time relieve the traveller of the duty of care and caution? Railroad companies have the right to run trains at all times, and those having occasion to cross their tracks are entitled to no exemption from care and vigilance because trains are irregular or extra trains are put on. "Assume in this case," says Harris, J., "that it was negligence in the railroad company to be behind time, and will this, in law, excuse the defendant from observing care on his part? In my opinion it will not. Such a rule would be extremely dangerous, and there would be much difficulty in its application. It may be that those who live in the immediate vicinity of railroads, and who frequently cross them, may when they suppose a train has just passed, be less careful, and this may grow into a habit; or they may consult time-tables, and from them reason that there can be no locomotive near, and act without regard to care; but if they do so, in my opinion, they act at their peril. They will be charged with negli gence in case they rush on the track without looking, or trying in a proper way to ascertain the fact whether danger is near; and they will not be permitted to recover damages for any injury they sustain." Dascomb v. Railroad Co., 27 Barb. 226. So that it seems that though a person or traveller may know the usual time

of the running of different trains, or the fact that they may know that a train has passed, and that another train will not be along for some time, according to their information or the timetable, it does not relieve him of the duty of observing care and prudence, or of using his faculties when he approaches and attempts to cross a railroad track. The law requires of him to make a reasonable use of his senses, and if the view of the track is obstructed, be must use his sense of hearing, and if he neglects to do so, and a collision results, he suffers by consequence of his own negligent act, and is not entitled to recover. He who fails to exercise this precaution when there are no circumstances to disturb his judgment, or impede his action at the time, is not using ordinary care. It has been said: "The track itself is a warning of danger, and I think it must be laid down as a principle of law that persons about to cross a railroad track are bound to recognize the danger, and to make use of the sense of hearing as well as of sight, and if either cannot be rendered available, the obligation to use the other is the stronger, to ascertain before attempting to cross it whether a train is in dangerous proximity; and if they neglect to do this, but venture blindly upon the track, without any effort to ascertain whether a train is approaching, it must be at their own risk. Such conduct is of itself negligence, and should be so pronounced by the courts as matters of law." Christiaucy, J., in Railroad Co. v. Miller, 25 Mich. 290. "As the plaintiff could not use his eyes with effect," said Crockett, J., "it was incumbent on him, as a person of ordinary prudence, to make the best use of his ears, which he could not do while his team was in motion. Upon the plaintiff's statement of the facts, we hold that he was guilty of contributory negligence, in failing to stop his team to listen to the approaching train." Flemming v. Railroad Co., 49 Cal. 256. "But aside from that fact," said Field, J., "the failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the necessity of taking ordinary precautions for her safety. Negligence of the company's servants in these particulars was no excuse for negligence on her part. She was bound to listen, and to look before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negli. gence, and so far contributed to her injuries as to deprive her of any right to complain of others." Railroad Co. v. Huston, 95 U. S. 697. "A railroad crossing is a place of danger, and common prudence requires that a traveller on the highway, as he approaches one, should use the precaution of looking to see if a train ie approaching. If he fails to do so, the general knowledge and experience of men at once condemn his conduct as careless." Allyn v. Railroad Co., 105 Mass. 79. Again it is said that "a traveller should always approach a railway crossing under the apprehension that a train is liable to come at any moment, and while he may presume that those in charge of it will obey the law by giving the signals, the law will nevertheless require that he obey the instincts of self-preservation, and not thrust himself into a situation of danger, which notwithstanding the failure of the railroad, he might have avoided by the careful use of his senses. Railroad Co. v. Butler, 2 N. E. Rep. 138. See also Railroad Co. v. Righter, 42 N. J. L. 180, note, and cases cited on page 226; 2 Am. & Eng. R. Cas.; Payne v. Railway Co., 13 Lea, 522; Schaefert v. Railway Co., 62 Iowa, 624; Henze v. Railway Co., 71 Mo. 636; Railway Co. v. Beale, 73 Penu. St. 504; Railroad Co. v. Clark, 73 Ind. 168; Haas v. Railroad Co., 47

Mich. 401; Tucker v. Duncan, 9 Fed. Rep. 867; Railroad Co. v. Adams, 33 Kans. 427; Railroad Co. v. Ritchie, 102 Penn. St. 425; Railroad Co. v. Newbern, 19 Am. & Eng. R. Cas. 261; 1 Thomp. Neg. 424, 426, and cases cited; and also Beach Cont. Neg., § 63; Ry. Accidental Law, 168. It thus appears to be a duty imposed by the law upon a person about to cross a railroad to use his eyes and ears; to look out for signboards and signals; to listen for bell or whistle; and if the view of the road is obstructed it does not relieve him of the obligation to listen and ascertain, if he can, whether there is an approaching train. Nor will the fact that the train is behind time (Salter v. Railroad Co., 75 N. Y. 273; State v. Railroad Co., 47 Md. 76), or that it was a special train (Schofield v. Railroad Co., 114 U. S. 615), or the failure of the railway to give the signal of its approach at the crossing (see cases supra), excuse the non-performance of this duty. In many of the cases the measure of duty goes to the extent of requiring the traveller to stop in order to look or listen; but he is not required to get out of his wagon and go forward on foot for the purpose of looking (Stackus v. Railroad Co., 79 N. Y. 467; Davis v. Railroad Co., 47 id. 400; Railroad Co. v. Wright, 80 Ind. 182) unless there are some peculiar circumstances requiring it. Railroad Co. v. Beale, 73 Penn. St. 509. Now the plaintiff was a competent person to take care of herself, was familiar with the road and its intersection with the railroad, and fully understood from the obstructed view the danger and risk incurred in attempting to cross it without listening. There is no pretense that her team was or became unmanageable or unduly excited; or that there were any circumstances embarrassing or perturbing her judgment; or that she was in the presence of any entangling influences or conditions to perplex or influence her mind. She was in the full possession of all her faculties, and if she had listened could have heard the train; yet relying on the fact that the passenger train had passed, and that no other train was due for some time, she relaxed her vigilance, and drove on the track, and in collision with the train. "If the obstruction had been snch," said Johnson, J., "as to prevent her from seeing the track or train, then in the exercise of ordinary care she should have listened for the train." Railroad Co. v. Adams, 33 Kans. 431. Upon this state of facts, what doubtful or qualifying circumstances does the conduct of the plaintiff present which excuses her from the plain consequences of her negligent acts? The duty which the law imposed for her own safety as well as the lives of passengers on trains, she neglected and disregarded, uuder circumstances which demanded the exercise of prudence and caution. It is true that negligence is ordinarily a question of fact for the jury to determine from all the circumstances of the case, and that the cases where a nousuit is allowed are exceptional and confined to those as here, where the uncontradicted facts show the omission of acts which the law adjudges negligent. In such cases, where the measure of duty is defined by law, then," says Mr. Beach, "a failure to attain that standard is negligence in law, and a matter with which a jury can properly have nothing to do." Beach Cont. Neg., § 163. This is the principle upon which Cogswell v. Railroad Co., 6 Ore. 417, was decided by Boise, J. We think, upon the undisputed facts of this case as made by the plaintiff, her own negligent act contributed to produce the injury which she sustained by the collision, and that the motion for nonsuit ought to have been allowed. Ore. Sup. Ct., Feb. 15, 1888. Durbin v. Oregon Ry. & Nav. Co. Opinion by Lord, C. J.

NEGLIGENCE-SWITCH CROSSING -IMPLIED LICENSE. The shortest route from a village to its railway station was a path across a switch. The company's agents, with the knowledge of its officers,

habitually parted the cars standing on this switch so as to leave a space between them near this path. Plaintiff's intestate, on his way to the station, crossed this track when such space was only eighteen inches, and was caught and killed by the sudden backing of the train. When he reached the track, he could not see the engine, and he had no notice that the cars were about to start. Held, that the company was liable, its acts, in keeping this crossing epen, constituting an invitation to the public to use it in coming to the station. In all cases like the present it is a question of prime importance in determining the liability of the defendant to ascertain whether the injured party was upon the premises at the time of the accident under a bare license or permission or in pursuance of an invitation. Here the deceased must be regarded as having adopted this route in pursuance of an invitation held out to hm by the conduct of the defendant company. The circumstance that the cars were habitually separated at this point, when taken in connection with the location of the steps to the platform of the passenger depot, and the constant uninterrupted use of the same by persons getting on and off at this depot, which was never at any time discountenanced by the road or its officials, to whom it was known, is susceptible of no other construction than that it was designed as a path by means of which access might be gained to the depot, as well by persons having occasion to visit the depot as by the company's employees. Under these circumstances it cannot be imputed to the deceased as negligence, if in the absence of some warning he selected this route rather than the other and longer one around by the freight depot. Under such circumstances it seems to us clear that an obligation was imposed upon the company to see that it should not become a source of danger to those to whom it had held it out as a passage or way through which they might safely go, and a duty was imposed upon the company of notifying persons entitled or invited to use, in some unmistakable way, that it was about to be closed before closing it. Railroad v. Fitzpatrick, 35 Md. 38; Gillis v. Railroad Co., 59 Penn. St. 129; Kay v. Railroad Co., 65 id. 269. Now if we are right in the views already expressed, here was an invitation plainly extended to the plaintiff to cross the railroad at that point; for as we have before inti. mated, the custom or habit of the company in making and leaving open a passage-way between the cars at this point, which the record shows was fully known to its officers, taken in connection with the general adoption of it as the proper route by all persons having occasion to go to the passenger depot, and the failure of the company to provide for such persons some other unobstructed route, can be regarded as nothing else than an invitation from the company to the deceased to use that way. There can remain but one other inquiry, and that is this: Was the deceased, in accepting this invitation, so wanting in the ordinary care required of him as to deprive him of the right to recover?-a question not difficult to answer, if we remember it amounts to nothing more than this, whether the danger in attempting to cross the track between those stationary cars was so obvious that a person of ordinary prudence would not have made the attempt. Let it be borne in mind that all that could be required of the deceased was reasonable care in view of the special circumstances of the case. The cars were not only at a standstill, but there is nothing to show that there was any thing to indicate to the deceased that they were about to be set in motion. Under such cireumstances it was a matter of little cousequence whether the cars were two or ten feet apart. In either case, there being nothing to indicate to the deceased that these cars were about to be moved, he had a right to suppose that he could effect his passage in safety. This was the view taken by the jury, and

we entertain no doubt of its correctness. There are cases where the question of negligence is one of law, to be decided by the court, but negligence, as a general rule, is a question of fact which ought to be submitted to the jury, and this is always the case where the facts are in dispute, and the inferences which fairminded men would draw from them are doubtful. In this view of the case, it becomes unnecessary to consider the instructions. The judgment of the Circuit Court of Loudoun must be reversed, and a judgment will be entered here upon the verdict rendered on the first trial. Va. Sup. Ct. App., April 7, 1887. Nichols' Adm'r v. Washington, O. & W. R. Co. Opinion by Hinton, J.

WILLS - PROBATE — LIMITATION OF TIME.—In the absence of statutory limitations a Probate Court has authority, as matter of law, to admit a will to probate sixty-three years after the death of the testator. In Shumway v. Holbrook, 1 Pick. 117, the question was whether a will not admitted to probate was admissible in evidence. It was held that it was not; but it is said: "If a will can be found, it may be proved in the Probate Court at any time, in order to establish a title to real estate. It differs from an administration of personal property, which cannot be originally granted upon the estate of any person after twenty years from his decease." In the course of the argument Mr. Justice Jackson alluded to a case in Essex county, perhaps thirty years before, where it was found that a widow must hold land under a will which had not been proved. The will having been offered for probate, the judge of probate declined to allow it, as more than twenty years had elapsed since the death of the testator, and on appeal his decision was reversed and the will admitted to probate. The research of the counsel for the appellant has established that the case thus alluded to was that of Dennis v. Bearse (Essex), and has supplied us with as satisfactory an account of it, drawn from the papers on file as they will afford. It is a case to which some weight must be attached, as it brought into question directly the authority of the Court of Probate, and the appeal was to the full bench of the Supreme Court, which reversed the original decree. While no opinion appears to have been written, it could not but have been a carefully considered case, as it reversed the opinion of the judge of probate as to the extent of his jurisdiction. The will thus admitted to probate was so admitted thirty-six or thirty-seven years after its date. How long after the death of the testator does not clearly appear, although some of the papers found indicate that it was more than thirty years after. In Marcy v. Marcy, 6 Metc. 360, the question was whether there was sufficient evidence that a will, which became operative forty-three years before, had been admitted to probate, so that it could be read in evidence. The court held that there was such evidence; adding "and on evidence like the present, it would be the duty of the Probate Court to establish the will, if for want of form the probate should have been considered so defective that the will had been rejected as evidence in its present state." In Waters v. Stickney, 12 Allen, 1, where it was held that the Probate Court, fourteen years after admitting a will to probate, might admit to probate a codicil, written upon the same leaf, which had escaped attention, and was not passed upon at the time of the probate of the original will, it is said by Mr. Justice Gray, citing the above cases: "It has been directly adjudged by this court that a will may be proved even thirty years after the death of the testator, although original administration could not, by statute, be granted after twenty years;" and again, if no will had been proved, the lapse of time would not prevent both will and codicil from being proved now." While it is true that in

neither of these cases has it been decided that a will disposing of lands can be admitted to probate after sixty years, yet there is no suggestion in any of them that there is any limitation of time to such proof, and the language used is quite explicit to the contrary. In view of the decisions made, and the repeated expressions directly relevant to the cases considered, used in argument by judges of this court, we cannot treat this inquiry as the appellant desires we shouldas practically a new question. We must deem it one that has been fairly passed upon and decided. It may be that the inconveniences which might arise from the probate of a will many years after the death of the testator were such that a statute limiting the period might be properly enacted. That course has in some States been adopted. Conn. Rev. 1875, chap. 11, §§ 21-23; Rev. St. Me., chap. 64, § 1. But statutes of limitation are arbitrary, and the considerations which apply to positive laws of this character are legislative, rather than judicial. In many instances, where a great length of time has elapsed after the death of a testator, possessory titles will have been acquired which will prevail against the record. What is due to the just rights of the devisees is to be considered with reference to other rights of property, or to the repose of the community; but such considerations belong to the domain of legislation. So long as one can produce the evidence necessary to obtain the probate of a will, we can see no legal reason why one who relies upon it should not be allowed to prove it as he would be permitted to prove a deed, however ancient, under which he claimed title. The fact that he could not offer in evidence a will not admitted to probate, as he might an ancient deed, would certainly afford no reason why its authenticity should not be established in the Probate Court by its regular course of procedure. Mass. Sup. Jud. Ct., Feb. 29, 1888. Haddock v. Boston & M. R. Co. Opinion by Devens, J.

law.' All I could say was, I probably had little cause for being ashamed.'” He makes the following recommendation: "Another matter that this association should give its immediate attention to is to the language of the statutes. We should, in my opinion, see that there is immediately created the office of statutory draughtsman, and that it be filled by a competent person, one who by his special acquirements is able to state a statute in legal, statutory language, and that no statute be passed until it has been examined by such officer and received his approval as to its phraseology. It is true that this would be copying from England, but there are some things that we may to our advantage copy from England, and this is of that number."

On the subject of codification, of which the Judge has long been one of the most earnest and intelligent advocates in this country, he observed: "There are several other matters that it is important that we should take up and discuss, and determine what should be done in regard to them; but I will trouble you with but one more. And that you may possibly have heard me mention before. President McMahon, in his annual address, said: 'In 1884 the interesting and all-important question of codification stalked into our midst.' Now if he was correct in stating that this is the interesting and all-important question, and he was correct in this, one has but to recall the discussion of this subject at the American Bar Association meetings; at the meetings of all the State bar associations, and in all the legal publications of this country and England, to find that it has claimed the attention of the ablest men of our profession, and occupied much more time of these associations, and more space in the law publications, than any other; I might almost say than all other subjects since these organizations were formed. Not only have these associations and writers in the magazines thus discussed it, but our own Legislature, seeing what chaos existed as to one branch or subject of the law, as evidenced by the decisions of the courts-England going in one direction and most or all of the States in directly the opposite; that to determine what the law was, a court in Ohio would have to carefully examine at least forty cases, and then instruct a jury, and let them, if they could, guess what the court meant, and upon that guess return a verdict, concluded that this state of things must cease, and in one short section, found on page 30, volume 83 Ohio Laws, codified the law on this subject. Therefore we say that the president was right when he said it was the all-important question. And I urge upon the members of this associatlon to take up this subject of codification, and so thoroughly investigate it that we will be ready to discuss it, and when discussion is over vote on the question. I, for one, would be glad to have it so thoroughly examined and fully discussed, that even the 'crank from Akron' would be convinced that his views on this subject are sound."

As to money making he utters the following golden words: "If you enter into any legitimate money-making pursuit and accumulate a fortune, you will be respected and entitled to respect because you have succeeded in the business you engaged in-money making. And if while a member of the bar should you be so unfortunate as to make it, you certainly would not be entitled to any credit, as money making is not and ought not to be the business of the lawyer. The only legitimate business of a lawyer is to mould and direct public opinion, and see that every man's rights are respected, and that his clients get what is due them. It is possible that in some cases this may be more than the client wants. I am sorry that it was not said by some christian instead of being left for a Jew to say, but you will remember that Daniel Deronda, the Jew, said: 'A sufficient reward for doing a good deed was the increased ability it gave you to do another.'" The last words come in quite appropriately in re Jew, which we have been discussing.

The governor has done right, we think, to commute the sentence of Mrs. Cignarale. We are glad that he did not allow himself to be prejudiced against her by the pleading of the hysterical actress with an alias who appeared in her behalf. The criminal is a wretched object, but she has been hardly dealt with. Her infidelity to her brutal husband can scarcely be the subject of wonder, and her killing of him seemed to be the outcome of passion rather than deliberation. Her alleged paramour had been acquitted. But she had pleaded guilty of murder in the second degree, and her plea had been accepted. By the persuasion of foolish friends and the absurd outcries of the press she was led, against the advice of counsel, to withdraw that plea, and the result was a conviction of murder in the first degree. To have hanged a woman in such circumstances would have been shocking. Society can well afford to be satisfied with the expiation to which it had once assented. We have very often found occasion to criticise the governor's action on other matters, but we must praise his dealing with applications for pardon and commutation. His decisions on such subjects, even under great pressure, have always, we believe, been characterized by good sense, discrimination, and a true regard for the interests of society and the demands of justice. We hope that the announced application for pardon of this woman will not prevail.