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under the circumstances, even though he thereby momentarily removed from the position in which he might have used means for controlling them. If some occurrence entirely unforeseen had rendered necessary plaintiff's removal from the position of control, then it might have been a question for the jury to say whether the requisite care was exercised therein. But the necessity of blanketing his horses was well known beforehand to plaintiff. * * At this time he attempted to do the work alone, and without any effort to retain within reach the means of controlling the horses. * * But where the passenger retains the custody of his property there would seem to be no duty to provide servants to aid him in that care. If plaintiff chose to take the risk of obtaining a deck-hand to aid him, and failing in that, proceeded to incur the hazard of doing the work alone, I do not think he can shelter himself under the claim of a necessity which he brought upon himself. On the ground of contributory negligence the direction of a nonsuit was therefore not erroneous. This conclusion relieves us from the consideration of the question (much pressed on the argument, whether the defendants were liable to the plaintiff for any thing but gross negligence, in view of the fact that the plaintiff was being carried without compensation, his father being a director of the defendant company. It may not be improper to add however that since the evidence shows that the only barriers used at the end of the boat off which the horses plunged were two chains and a rope, and the evidence tended to show that but one chain was then up, and hung, at its centre, but a few inches from the deck, no nonsuit, proceeding on the ground that the defendants were not guilty of gross negligence, (if that was the measure of their liability), could have been sustained. Indeed, the whole case is one of a class in which the defendant escapes the consequences of conduct which seems to be grossly negligent solely because, upon well-settled principles, we are compelled to deny relief to a plaintiff contributing to his loss by his clear negligence, however slight." Seven other judges concurred with this, and seven others dissented. The case is reported below, 13 Vroom, 25; S. C., 36 Am. Rep. 501.
In Ferren v. Moore, 59 N. H. 106, it was held that a husband is liable for necessaries furnished to his wife living separate from him and in adultery by his connivance and consent. The court say: "As we understand the referee's report, the question is, whether the defendant's duty to support his wife ceased when she committed adultery in pursuance of his express written license, given, with deliberation and without solicitation, upon condition that she should not look to him for support. What he consented to he cannot complain of in this suit. The execution of their agreement that she should violate their marriage contract was not a justification of his violating that contract by turning her out of doors, and refusing to support her.
He can no more enforce the condition of his license than he could maintain an action upon her promise, or the promise of any other person, to pay him for the license a sum equal in value to a release of his obligation of support. That obligation, whatever it is, cannot be avoided by such illegal bargains. Marital rights and duties are established by law. The marriage contract may be broken by either party, with or without the consent of the other; but it cannot be rescinded or modified by them. Cross v. Cross, 58 N. H. 373. The plaintiff is in no way connected with the lawless transaction."
In Labrie v. Manchester, 59 N. H. 120, it is held that health officers have authority to employ nurses at the expense of the town, for persons committed by them to the pest-house. The court said: "Having power to compel the confinement of infected persons and prevent their communication with others, and having exercised that power, it became their duty to provide for the wants of those confined there. They could not shut them out from communication with their friends and with the world, and deprive them of any means of obtaining assistance, and at the same time lawfully withhold necessary support and care. They could not establish a hospital without ordinary hospital accommodations, and they could not make the hospital a place of involuntary confinement and escape the duty of supplying the reasonable wants of those who, by confinement and seclusion, were prevented from applying to any one else for relief. They could not furnish relief against the will of those confined, and afterward recover the expense of them, or of those liable in law to support them. Farmington v. Jones, 36 N. H. 271. If the health officers were obliged by law to confine persons infected with dangerous diseases, and it was their duty to nurse and support them, and they could not recover the reasonable expense from them or from their guardians, they would be remediless, unless they could charge the expense upon the city. The law does not require the performance of a duty, and at the same time withhold the means reasonably necessary for its performance."
In Richards v. Hubbard, 59 N. H. 158, it is held that a physician's wagon and harness, used by him in and reasonably necessary for his practice of his profession, are exempt as "tools of his occupation." The court said: "The court cannot say, as a matter of law, that a wagon or a harness is a tool of a physician's calling, and so exempt to all physicians; nor can they say that it is not such a tool. The most that can be said, as a matter of law, is, that it may be a tool of his profession, if, in the particular case, it is reasonably necessary for him to use it as a tool. If it should appear that his practice was confined to his office, or that he was a physician or surgeon in a hospital, attending to no cases outside of the institution, or that he was a surgeon on shipboard, or that he went on foot or on horse-back, or on the cars, to visit his patients, a wagon and
harness would not be exempt under our statute, because they would be of no use to him as tools in his practice. They might be of use to him in other respects, as in going to church, or in carrying his children to school, or in visting friends, or as a means of recreation and pleasure; but these uses are manifestly not within the legitimate scope of the technical duty of a physician. Not coming within the strict definition of the term tools, and not being reasonably necessary as tools for him in his practice of his profession, they would not be tools within the meaning of the statute, and so would not be exempt as such. But if it should be found that the physician claiming the exemption could not practice his profession with reasonable success without a team with which to visit his patient; that he was located in a country town, for example, where it was necessary for him to ride a large part of the time in order to accomplish any thing professionally, - a wagon and harness might properly be found to be reasonably necessary for him as tools of his occupation. But the finding would be one of fact, so far as the reasonableness of the use is concerned; and it could not be said that these articles are exempt to every physician, or to physicians generally, but only to the debtor in the particular case. If there is any doubt whether an article claimed to be exempt from attachment is a tool under the statute, the question should be submitted to the jury whether its use as a tool by the debtor in his business is reasonably necessary. If it is, it is exempt; otherwise, it is not exempt."
In George v. Fellows, 59 N. H. 206, it is held that the debtor's use of his horse to convey his children to school and church is evidence for the jury on the question whether it is "required for actual use," so as to be exempt. The court said: "The duty of parents to educate their children is of the greatest importance. 1 Bl. Com. 450, 451. At common law this is said to be a moral but not a legal obligation. Cooley on Torts, 40. Blackstone says it is a defect in the municipal laws of some countries that parents are not constrained to perform this duty Our Constitution declares the promotion of morality and learning to be a public duty, and ten chapters of the statutes are devoted to the cause of education. Const., Part 1, art. 6; Part 2, art. 83; Gen. Laws, chaps. 85-94. The penalty imposed by Gen. Laws, chap. 91, § 16, for not sending children to school, illustrates the legal necessities of the plaintiff. It is not a matter of law that the use of a horse for conveyance cannot be necessary in the discharge of the duty of supplying a family with mental and moral instruction. The plaintiff's use of his horse for that and other purposes should have been submitted to the jury in a more liberal way, on the broad question whether the horse was required for the plaintiff's actual use. While his mere unperformed duty of using his horse for any purpose is no ground of exemption, his duty and business, and his use of his horse in that duty and business, are evidence on the question of requirement for actual use."
COMMON WORDS AND PHRASES.
OF DRAMATIC ENTERTAINMENT. This phrase in a statute prohibiting the acting of plays without consent of the authors, means a public place, and not a private amateur performance. Duck v. Bates, Q. B. Div., 49 L. T. Rep. (N. S.) 507. Lord Coleridge, C. J., said: "I cannot say that this case is not an important case, and it is important because judges cannot help knowing what other people know, that amateurs do act dramatic pieces for the purpose of making money, not indeed for themselves, but for some charitable object; and I will not disguise the fact that it may be a great injury to the owner of a dramatic piece that companies of ladies and gentlemen should give dramatic performances and take money for some charity, thereby possibly preventing people who go to their performances from going to the regular places of public entertainment." He bases his opinion upon Wall v. Taylor, 11 Q. B. Div. 102, observing: "The song in that case had been represented at a large public hall, open to all who could pay, and expressly for the profit of the person who represented it; and the court, at p. 237, twice over, in dealing with the question whether the place was a place of dramatic entertainment or not, put it that the place was public, and that payment was made for admission. It does seem to me extraordinary, that if this were wholly unnecessary for the decision of the case, it should have been twice inserted in the judgment of the court. I am not aware that that case has ever been overruled or questioned. I am aware however that certain dicta of the Master of the Rolls do go a long way toward deciding this case in the way the appellant contends. The Master of the Rolls, in construing the later statute, certainly does say that a place becomes a place of dramatic entertainment if the song is sung in a room with more than one other person present. I have had the advantage of speaking to him on the subject, and he has told me that his dicta there go beyond what he intended." Stephen, J., said: "The act says, it seems to me, that you are not to give any public representation at any place of dramatic entertainment; and without saying that profit is a necessary element in considering it, it is a strong element in considering whether the place was a public place. This representation wanted all the elements of publicity. There was no profit, and the public were not admitted. I can conceive possible cases which I should be sorry to say would not be within the act. Suppose a copyright play were to be acted at some theatre, and another manager were to have the same play represented at his theatre, and to throw open his theatre free to his friends, I do not say that this would not be within the act. * * * The interpretation put upon that act by the Master of the Rolls is that the words in the earlier act relating to places of dramatic entertainment do not apply to musical compositions. But that does not bind us in this case. No doubt he uses strong language, which would go to show
that a person who sang a copyright song in his own drawing-room to his guests would be liable to the penalties. I should be very loth indeed to arrive at the same conclusion."
INCESTUOUS CONNECTION. "Incestuous connection,' according to Worcester, means 'sexual intercourse between persons who, by reason of consanguinity or affinity, cannot lawfully be united;' according to Webster, 'the crime of cohabitation or sexual commerce between persons related within the degrees wherein marriage is prohibited;' and according to the Imperial 'the crime of cohabitation or sexual commerce between persons related within the degrees wherein marriage is prohibited by the laws of a country.'" Hintz v. State, Wisconsin Supreme Court, November 20, 1883.
OTHER BUSINESS.-Cutting and driving logs is not within a statute giving a lien "for labor and services rendered by any miner, mechanic, laborer or clerk, for any person or persons, or chartered company, employing clerks, miners, mechanics or laborers, either as owners, lessees, contractors or under-owners of any works, mines, manufactory or other business where clerks, miners or mechanics are employed." The court said: "The words, 'works, mines, manufactory,' thus employed in the act, have a definite signification, well understood in their general and popular acceptation. Er vi Ex termini the branches of business intended to be described by them are, in a certain sense, complete and independent, and of a fixed and permanent character, as opposed to a temporary employment that is merely incidental to any particular branch of business. It will scarcely be pretended that either of these words fitly describes the business in which appellant was employed. It is contended however that the expression,' other business,' etc., is sufficiently comprehensive to embrace cutting and driving logs. Perhaps it would, if we were at liberty to construe it without reference to the con- | operated." text; but the preceding words, designating particular branches of business with which the idea of permanency and completeness, in a certain sense, is always associated, must control the meaning of the more general expression used in immediate connection therewith. The other business' is ejusdem generis with that more particularly described by the preceding words of the context, business of the same general character, not embracing every species of employment in which the services of others may be rendered." Pardee's Appeal, 100 Penn. St. 408.
INCOME. A bequest of "the income of a farm" for the support of a wife and minor children means the product of the farm. Thompson's Appeal, 100 Penn. St. 478. The court said: "Now we may admit that in the ordinary, commercial sense, the term 'income,' especially when connected with the word 'rent,' may mean net or clear income, and in that view of the case, the judgment of the court below must be taken as correct; the widow was entitled to but the one-half of the one-half, or onequarter, of the product, or whole income of the
farm. But in arriving at the meaning of words we must understand not only how, but by whom, they are used, otherwise the intent of the person using them may be wholly perverted. One may say that his income from a certain property amounts to a certain sum, and yet he may be speaking merely of the accruing rent, without regard to either insurance, taxes or repairs. The lumberman who uses the timber from his own lands will speak of the income from his business without considering the value of the stumpage, or even the interest of the money which the land cost him. And we well understand, that outside of the business circles, it is so common thus to speak of income, that we can never know whether net or gross income is meant, without further inquiry. Had Thompson, in his life-time, spoken of being in the receipt of the onehalf of the income of his own farm, we suppose no one would have minunderstood him; certainly not his neighbors who, like himself, were farmers, and who knew, from the general custom of the country, that the income of a farm was its entire product, which was to be divided between the owner and the tenant, or cropper. Nor do we see why, from the farmer's standpoint, this is not a correct application of the word. Worcester, among other definitions of this word, gives that of 'produce.'"
CONTRACTOR. - One who contracts to drill oil wells is not within the statute giving a lien to laborers for "owners, lessees, contractors, or underowners of any mines, manufactory, or other business." The court said: "The word 'contractors' as used therein is applicable only to persons employed by the owner or lessee of a mine to operate the same, produce the mineral, coal, iron, or whatever it may be, for an agreed compensation, and does not embrace those who undertake to perform some special service in the construction of works, or the opening of mines preparatory to their being
FENCE. -In Morton v. Reynolds, New Jersey Supreme Court, 45 N. J. 326, it was held that a license to build a fence on a division line does not authorize the building of a "worm" or zig-zag fence. The court said: "The license was to build a fence upon the division line. Since a fence is necessarily made of some material substance, it must occupy space. Such a license will doubtless confer a privilege to place a fence so as to occupy an equal space on each side of the actual mathematical line of division. For this purpose a reasonable amount of space of the licensor's land may be used. What is a reasonable amount of space for that purpose is to be determined by the situation of the land and the uses to which it is devoted, and perhaps, to some extent, by the usage and custom of the locality. Newell v. Hill, 2 Metc. 180. Usage and custom however cannot control the requirements of the license. The question whether the fence in question was one occupying no more than a reasonable amount of Morton's land does not however arise here. For under the facts, we are of opinion that
this was not a fence within the privilege given by the license. That privilege extended to a fence placed upon the division line. This fence cannot be fairly said to be placed or built on the division line. On the contrary, it crosses that line from side to side for its whole length. It deprives Morton of the use of portions of land not occupied by the fence. If this can be done for the width of three feet, it would seem it could be done for a greater width. Either result is plainly not contemplated by the license. If land of Reynolds is thereby left on the Morton side of the fence, it could not, either legally or practically, be used by Morton."
CONSTRUCTION AND ERECTION. - Hauling lumber upon the ground for the construction of a building is not "labor for or about the construction or erection" of the building. Wilson v. Whitcomb, 100 Penn. St. 547. The court said: "This subject has already received the consideration and determination of this court in another connection, but quite kindred to this. In the case of Moyer v. Pennsyl vania Slate Co., 21 P. F. S. 293, an attempt was made to recover against the stockholders of a slate company for the cost of hauling slate for the company from the quarry to the railroad, for shipment. The act incorporating the company provided that the stockholders should be individually liable 'for debts due mechanics, workmen and laborers, employed by the company, and for materials furnished.' The plaintiff claimed that he had been employed by the company to haul slate, with his own team, from the company's quarries to the railroad station, and that the stockholders were liable for the service thus rendered under the clause in question. But we held, that notwithstanding the generality of the language of the statute, it did not impose individual liability for the service claimed, on the ground that it could not be regarded as labor within the meaning of the statute. Chief Justice Thompson, in delivering the opinion of the court, on page 298, said: The learned judge of the Common Pleas was right therefore we think, in holding as he did, that the charge for hauling slate, the party using his own team and contributing his own time, was not embraced by the liability clause quoted. Indeed, I regard it as not within the words at all. The teamster was not strictly a laborer or workman, but the ruling stands well enough on the general ground suggested. His was labor of the same kind as that performed by the railroad company in transporting the slates to market, and the yardman who took charge of them on their arrival at their destination.' We think these views quite pertinent to the present case. In both cases the character of the service rendered was the same. In the one the liability set up was personal or individual, but it was for a debt due to a laborer. In the other, the liability claimed is that of certain property, but it is for labor performed in and about the same. Essentially, there is no difference in the considerations which determine the question at issue in both.”
LAST SICKNESS. Of these words in a statute
regulating nuncupative wills, it is said in Sadler v. Sadler, 60 Miss. 251: "We prefer not to give an exact meaning to these words until we shall have the concrete facts of some case before us. It seems clear that if the words are spoken during the last sickness, no lapse of time that may intervene between the speaking and the death of the party should invalidate them, if his physical or mental condition disabled him thereafter to alter his desires or gave no opportunity to reduce them to writing. It seems equally clear on the other hand, that the words 'last sickness' should not be extended over a lingering disease covering months or weeks, during which, and after the spoken words, there was afforded, both by the mental and physical condition of the party, every opportunity and inducement to prepare a written will."
THE ORIGIN AND DEVELOPMENT OF LAW.
[Address before New York State Bar Association, January 8, 1884, by John G. Milburn.]
The century in which we are living is one in many ways remarkable for its originality, its power and its achievement. In science it can certainly lay claim to transcendent distinction, and the same is true of it in the mechanical arts. Its contributions to philosophy stamp it as a time of clear and comprehensive thought. In literature and art, if it may not aspire to any supremacy, its product is still of a high order of merit, and of merit at many points tinctured with real genius. What can we say of its attainments in the domain of law? I will not venture to say that I could give an adequate answer to this question, but a partial one I propose to attempt in this address which you have done me the honor to ask me to make to you.
The question is surely one of signal pertinency and interest. Its consideration is, as it were, an anticipation of the verdict of history, that tribunal which will view us through the eyes of an impartial criticism with no mitigating voice at its side to soften an unfavorable judgment. The next age will examine and scrutinize the work of this to determine what parts of it were of permanent value, the creations of a high and sustained intelligence, and what parts of it were barren and poor. This process will be carried on from age to age and out of it will gradually emerge a valid estimate of our points of strength and weakness, and of the place we are entitled to among the centuries. As we have to be thus passed in review, constantly and unrelentingly, that a true judgment may be formed of our influence and effect on human progress, is it not wise to sit in review upon ourselves at times, that we may separate upward from downward tendencies and
redirect where necessary our lines of effort? This we
must do if we would know the deeper currents which are sweeping society along through ceaseless changes, and whether or not we are shaping them, so far as we can, to the amelioration of mankind.
And I put the question-what is this age and time accomplishing in the domain of law-because I believe it is now most opportune. As I look out over that domain I am impressed with the fact that there is a lack in some parts of it of those elements which are necessary to great results, and that consequently there is no sufficient response to the high spirit of intellectual conquest and advance so prevalent in other departments of human thought and effort. This is certainly of deep concern to us as a body of lawyers, if it be It raises a question of responsibility; it reflects
upon our capacity; and both of these are sensitive points. It is urgent then to determine whether those elements are lacking, and if they are, what demand of duty is made upon us to recover lost ground and secure the future.
When we use the term law we speak of something which may be looked at from different standpoints. It is not necessary, for the present purpose, to involve myself in the difficult task of definition with a view to philosophical completeness of statement. There is a plain way of dealing with the matter which is quite sufficient here. It is this. A certain amount of control is necessary to the existence of society and the proper ordering of the relations of the individuals composing it. Law is one of the forms of this control. From the point of view of its operation, it is a distinct function of the body social, with a sphere of its own to work in and set purposes. From the point of view of its structure, it is a vast body of rules,each of which, speaking generally, is a statement of some right or duty. Courts of justice and procedure are the machinery through which it carries on its corrective or coercive operations. As society advances and its conditions change and multiply, law is, slowly or quickly, adapted to the new conditions, and thus it changes and grows. Briefly, then, law is a necessary agent in social life and progress; it is a system of rules to which obedience is demanded; it is plastic and changeful; and it does its corrective work through certain machinery. This is not a very scientific statement, but it is explanatory enough to set before you the conception which underlies what I have to say.
It is a current phrase of legal literature that law is a science. It would be truer to say that the special methods of science may be applied to bodies of law to obtain the results which it is the aim of all science to seek out and state. But that is only one phase of it; that which may be termed its scientific phase. There is another side to it, practical rather than abstract. Each rule of law is the expression of some required particular of conduct which society, in its collective capacity, deems expedient or right. It is in some form or other, either deliberately at a stroke, or by piecemeal, formulated by official representatives of the community. The machinery for its enforcement is the device of human effort and skill, consciously applied in the main after the age of civilization is reached. At these points-the method of its expression and promulgation, and the administration of it as the affairs of men require its interposition-law comes in direct contact with human effort, in such fashion as to be really a practical art; and this may be termed its practical phase. The distinction between these two aspects the scientific and the practical-is a wide and deep one, and as omnipresent as the subjects which it concerns. It conveniently divides the subject in hand, for we may consider in their order the quality of our achievements in legal science and in the practical art, confining ourselves strictly to the work which has been accomplished and the conditions which exist, in this country and England. To pursue the subject in its entire extent is quite beyond the possible scope of such an address as this.
I said at the outstart that the scientific work of this century was of a transcendent order. There is no period in the past to compare with it. The light of true science never shone more splendidly or over so wide an area. It has diffused life and energy over almost every, if not every field of possible inquiry. The physical world has been a hive of busy and searching investigators. The human mind and spirit, veiled as it is, and at the best communicative only to the few of supreme insight, has revealed many of its deepest secrets. Society so long disguised by so-called history, appears now as an organism with its analogies to other
organisms, and with sequence enough among the facts of its cohesion and movement to disclose the indelible laws of its being. And in law the same method and spirit of inquiry has laid the foundations and raised imposing parts of the superstructure of a legal science on enduring lines. In proof of this last statement let us glance quickly over the surface of what has been done.
Bentham's labors are the starting point of the modern treatment of law on a scientific plan. Though born in the middle of the last century, his work overlapped well into this century and much of it was done right on its threshold, so that we may claim him as belonging to it. His labors were immense and so varied that I should shrink from the effort of condensing them if that were necessary. He drew the fundamental distinction between the science of jurisprudence, or positive law, and the science of legislation, assigning to the former as its subject-matter, the law as it is; and to the latter the law as it ought to be. He brought into clear view the characteristics of each of these sciences. Through him we see that the problem of the jurist is to determine the fundamental facts and conditions with which a legal system has to deal, including the relations which it acts upon, and to analyze and classify them; whilst the problem of the legislator is to ascertain from prevailing social conditions and the immutable laws of human nature, what is necessary in the way of legal control to promote the well-being and amelioration of humanity. The work he did in each of these sciences was in the highest degree creative. In jurisprudence it extended to the analysis of the ideas of sovereignty or the State; of government, and of law; and there is scarcely a topic of controlling importance contained within any of these subjects that he did not touch with his piercing logic and set in order. But legislation was the main field of his inquiries, and to that science he rendered the chief service. He applied himself to the ascertainment of a universal test to which all laws must conform to be approved, and his famous principle of the "Greatest Happiness of the Greatest Number" embodied his conclusion as to the final aim of all law. So as laws act upon human beings, who think and feel, some theory of man's mental and moral constitution is essential as a basis of legislation. That Bentham saw, and such a theory he constructed. Not content with the exposition simply of the abstract principles of the science, he filled out his labors by drafting specimen Codes, civil, penal, and constitutional, so far as to state the subsidiary principles they should embody, and the order they should follow. He accomplished a great task. The validity of parts of his work may, without doubt, be successfully disputed; but as a whole it will continue to stand as one of the main pillars of legal science.
After Bentham came Austin, who occupied himself with the anatomy of a legal system, if I may use the expression, and placed it upon an indisputable basis. The boundaries of the domain of positive law he fixed for all time. The constituent and universal facts of a legal system-laws, rights, duties, obligations, injuries -he dissected until every quality and feature of them was plain. He formulated the true and logical principles of legal classification. We have only to turn to his lecture on the study of jurisprudence to see clearly the ground that he set out to cover. Though it is the sad fact that his strength did not enable him to carry out his plan, all that he did was the perfection of accomplishment. Indeed his labors may be summed up in the statement that he was the real architect of formal jurisprudence. The finished part of his work was so complete that those who followed him have but amplified a little here and there; the main fabric is as he left it.