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.

PLACE

LACE 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. Ex vi 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 context; 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 operated."

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 au 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 do main 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 true. It raises a question of responsibility; it reflects

The record is completed so far as is necessary to sketch this general outline by a reference to the labors of Sir Henry Maine. His investigations are of an entirely different turn and character from those of Bentham and Austin. He approached legal facts and phenomena from another side-from the side of history. We have heard much in the last quarter of a century of the comparative method, and the rich stores its employment has added to our knowledge of religions, languages, and institutions. The distinction of Sir Henry Maine is that he has applied that method with true genius to the explanation of legal ideas and facts, their origin and history. The law of to-day is the law of yesterday modified by changed social conditions, and so it is backwards to the beginning. This is true of all peoples and societies. Obviously then a comparison of the legal experiences of different peoples in different stages of civilization will disclose the similarities and variations which exist with their underlying causes, and they are the bases of all scientific induction. This line of inquiry, which is but an extension of the comparative method, Sir Henry Maine has pursued far and wide, and with such success that the main streams of legal evolution have been ascertained, and their relations with the connected phenomena and conditions of society established. In fact, the results of these inquiries reach beyond this, for their significance and extent has constituted them a material part of the evidence which has been accumulating, that civilization is an unfolding process, with a natural and ascertainable sequence among its various steps.

With these investigators of the highest order of capacity, originality and insight, I might put others, perhaps not so eminent, still able and effective, notably our own Oliver Wendell Holmes, Jr., who ranks, if not with them, yet so close to them that he is virtually their peer; but I must not linger. A statement of the present state of the science with sufficient detail to make it a fair reflection is far beyond my present undertaking. I have sought only to indicate the outlines of the chief work that has been done; the work upon which the verdict of the future will be founded. Of the tenor of that verdict there can be no doubt. An adequate conception of a true legal science has been attained, and its foundations laid deep and strong. These achievements need shrink from no comparison. They are a crowning triumph of this age and time, and they place it in an indisputable supremacy.

I turn now to review the situation as it is, in what I have termed the practical department, and to ascertain if in that direction we have manifested power, skill and a sensitive intelligence. This we can best do by fixing upon the standard which should be the measure of our possible attainment, and holding up to it the actual condition of affairs. If we can determine what are the prevailing tendencies of a deep and controlling nature in the making and administration of law, this standard must be the conditions which would exist if those tendencies were fully realized, and the changes and readjustments they involve completely made. Our main inquiry then is to seek out these tendencies and the readjustments naturally incident to them.

One of the interesting facts brought to light by the investigations of Sir Henry Maine is that in the infancy of society courts of justice and legal proceedings are the pivots on which all there is of law turns. The first subject dealt with in the Decemviral Tables-the earliest body of written Roman law-is the first steps in a judicial proceeding, and the same is true of the earliest bodies of Teutonic, Celtic, and Hindoo written law. The prominence thus given to courts, and the proceedings which went on in them, was natural

in a time when as Sir Henry Maine says, "they stood before all men's sight as the alternative to forcible reprisals, and as the avenger of their victim;" but the persistence of this fact-the vast and controlling importance of procedure-far into civilized times has a more intricate cause. Let us see what light the history of English law throws upon it.

Until comparatively recent times, the way in which law was made and enunciated was almost entirely through the decision of cases. The notion long current that somewhere there was a body of existing law, which judges were only declaring and applying, was humourously false. The fact was, that the judges made the law in their adjudication of the cases brought before them. Each case, if it involved any thing new, became a precedent, and precedents were the repository of the law. If there were no precedent to fit a case, the decision rendered really expressed the judge's notion of what the law ought to be, though this would not, perhaps, have been explicitly admitted.

Such a decision, no matter what the guise adopted, was in fact the creation of a new rule of law, and the accumulation of such decisions was the process by which by far the greater part of both the common law and equity law was brought into existence. This fact, simple as it is, has had a potent influence in many directions on English law. One of its consequences touches deeply the subject we are upon.

When judges made the law through the medium of cases, naturally judicial proceedings drew to themselves paramount consideration. They had a dramatic interest and effect aside from any distinct consciousness of their share in the actual process of law-making. They occupied a large place in the prevailing conception of law and justice. They were the sole means of ascertaining what the law was, and of declaring the rights of parties. Rights and duties were only dimly conceived of as having an independence of them, or any possible existence without them. Inevitably the human mind, prone as it is to be drawn to what it sees going on before it in a concrete form, exalted the office and importance of procedure. So in early times it was placed first in the Codes of written law, aud down to far later times it was still the centre and object of legal attention and skill. To this fact is in large part due the common-law system of pleading and procedure; a system founded on the idea that procedure was a matter of essence and the guardian of justice. So also to it was due in no small measure the long and despotic rule of the common-law Forms of Action, Debt, Trespass, and the like, the requirements of which an injury had to fit or go unredressed. Thus we see the conditions in which originated the immense ascendency of procedure, and which were necessary to its maintenance.

Let us now advance a step. With the rise of the chancellors' court, a new influence was set in motion in English law. After passing a certain point of development the common law gradually became rigid and unyielding to the needs and conceptions of an advancing civilization. Its restricted forms of action and its exclusive remedy of damages stood as a barrier obstructing the movement and expansion of society, until a new channel of legal communication was opened up. This new channel was equity. By the side of the old law and the old courts there grew a body of new law administered by a different set of courts. The new law at many points supplemented the old; at others it superseded it; it was pliant, expansive, copious; and it asserted itself with immense activity. It introduced a new principle of legal growth. How luxuriant that growth was whilst Equity was in its vigor any one may see by looking