Civil Code declares: A gift in contemplation of death (donatio causa mortis) must be made by a person during his last illness or in peril of death. must be intended to be absolute only in the event of death, and must be perfected by either actual or symbolical delivery. Such a gift, so evidenced, may be made of any personal property by paro!, and proved by one or more witnesses." From the wording of the statute it will be readily_seen that it is not absolutely necessary, in order to constitute a valid gift of this sort, that an actual delivery shall take place from the donor to the donee, but that a symbolical delivery of the personalty may as effectually convey title as an actual delivery. But we think it very clear that an actual delivery takes place whenever the owner of the property delivers the same to a third person, charging him with the trust of keeping it for the benefit of the named donee. There is nothing in the decisions of this court cited by counsel for defendant in error at all in conflict with this view of the law. For instance, in the case of McKenzie v. Downing (25 Ga. 669) it was decided that, to complete a gift causa mortis, there must be a delivery of the thing given. On page 670, McDonald, J., delivering the opinion, says: "There was no delivery of the check to the payee, or to anyone else for him. It remained in the custody of the drawer." There seems to be a clear intimation in the opinion that, had the owner of the check delivered the same to anyone else for the benefit of the payee, the delivery would have been as effectual as if he himself had handed it directly to the payee. We are aware of authority to the effect that a delivery of property to a third person as the agent of the donor is not sufficient, but it does not follow from this principle that a delivery to one in trust for the donee is not a sufficient delivery. In 14 Am. & Eng. Enc. Law (2d ed.) p. 1060, it is declared: The delivery need not be to the donee personally. It may be made to a third person for him, and such delivery will be sufficient, though the donor dies before the donee actually receives the property." (See Thornt. Gifts, sec. 36.) There are several decisions in which this view of the law touching gifts causa mortis has been recognized by a number of courts of last resort in several of the States, but the principle is so well established that we deem it unnecessary to burden this opinion with a collection of such authorities.

2. It is true that such a gift, made by one not during his last illness, without more, would not be valid.

For instance, in this case, had the owner of this money, and the person to whom it was delivered for the benefit of the owner's mother, had no transaction or understanding with reference thereto except what occurred in October or November, several months prior to her death, it would not have been an effectual donation, as it was not at that time made by a person during last

illness or in peril of death. We think, however, there was sufficient evidence in this record to authorize the jury to conclude that shortly before the donor's death, and during her last illness, she apprehended approaching dissolution, and in this condition a reaffirmance of the gift, and a request that the person to whom the property had been intrusted should retain possession of it, and deliver it to the intended donee after the donor's death, would be clearly equivalent to a new delivery.

Street Railways Employment of Physician Examination of Injured Person Resulting in Further Injury Company's liability for Additional Damages. In Pearl v. West End St. R'y, decided by the Supreme Judicial Court of Massachusetts, in May, 1900, it was held that where plaintiff was injured in an accident on a street railway, and had brought suit for the injury, and the company sent a doctor to examine him, and he directed plaintiff, who claimed he could not stand on his left leg, to try to stand on it, and in the effort to do so plaintiff fell, from the effect of which he became subject to hysterical trouble, the company was not liable for the injury occasioned thereby, since the physician in making the examination was an independent contractor, distinctly free from the control or direction of his employer. The court said in part:

This is an action seeking to charge the defendant with the alleged results of a doctor's examination of the plaintiff. The plaintiff had had an accident, and had sued the defendant, whereupon the defendant forthwith sent a doctor to examine him. The plaintiff's trouble was in his left leg, and the doctor, after directing him to stand upon his right leg, told him to stand upon his left leg. The plaintiff said that he could not, and his own doctor alse said that he could not bear his weight upon that leg. The examining doctor then told the plaintiff to " try standing on his left leg." The plaintiff tried it, fell, and attributes subsequent hysterical trouble to this cause. At the trial the judge directed a verdict for the defendant, and the case is here on exceptions.

It would be a strong thing to say that the evidence warranted finding any one responsible for the accident except the plaintiff himself. The doctor's request that he should try standing on his left leg was not medical advice or direction upon a matter as to which the plaintiff had put himself in the doctor's hands. On the contrary, it came from one, who avowedly was in an adverse interest. and who had no authority of any kind. Furthermore, it recognized in its very words that perhaps the plaintiff was right in thinking that he could not stand in that way. It only called on him for an experimen: in a region of admitted doubt. How far the experiment should go necessarily was left to the plaintiff himself when he should make it. If he carried it too far, the doctor was not to

But, further, the doctor was not an agent or servant of the defendant in making his examination. He was an independent contractor. There is no more distinct calling than that of the doctor, and none in which the employee is more distinctly free from the control or direction of his employer. (See Linton v. Smith, 8 Gray, 147; Milligan v. Wedge, 12 Adol. & E., 737, 741, 742.) In this case the doctor was informing himself, according to the suggestions of his own judgment, in order to advise and perhaps to testify for the defendant. We must assume, in the absence of other evidence than his profession and his purpose, that what he should do and how he should do it was left wholly to his. (See Glavin v. Hospital, 12 R. I. 411, 424; Secord v. Railway Co. [C. C.], 18 Fed. 221, 225.)

An argument is addressed to us drawn from the liability of litigant for his attorney (Shattuck v. Bill, 142 Mass. 56, 7 N. E. 39). But no argument can be trusted that relies on that analogy. Perhaps the liability for an attorney rests on the fact that the very essence of his employment was to represent the person of a party to a suit. "Attornatus fere in omnibus personam domini representat" (Bract. 342a). It must be remembered that this right of representation in a lawsuit was conceived with difficulty, and only gradually granted, and, as first allowed, seems to have been worked out through some sort of fictitious identification.

Whether for that reason or another, attorneys sometimes have been spoken of as servants (Anon. I Mod. 209, 210), and their acts within the scope of their employment always have been said to be the acts of their clients (Parsons v. Lloyd, 3 Wils. 341, 345: Barker v. Braham, 2 W. Bl. 866, 868, 869. 3 Wils. 368. 374; Bates v. Pilling, 6 Barn. & C. 38, 41; Newberry v. Lee, 3 Hill, 523: MeAvoy v. Wright, 137 Mass. 207). In short, the liability of client for attorney is the result of a special series of events, and cannot be allowed to found a general rule.

made by it."

Lord Bacon says: " All nations have equity. But some have law and equity mixed in the same court, which is worse; and some have it distinguished in several courts, which is better." Equity, as we understand it in the English law. has a definite and limited meaning, and denotes a system of justice administered in a particular court, and can be explained and defined only by studying the history of the different courts which have administered its principles.

Notwithstanding the difficulties surrounding an attempt to trace the history of Our courts of equity, yet no greater industry is required for this purpose than has frequently been applied with success in bringing to light subjects of equal antiquity and obscurity. As our system of equity law is based on English equity law and the English system, in turn, is based on the principles of the ancient Roman jurisprudence, it is of importance to commence with the consideration of the existence of that system in the Roman Empire.

Notwithstanding the high development which the Roman jurisprudence attained in the days of the empire, culminating in the most remarkable body of law which the world has known of, its origin was as simple as any other system known to history.

In the earliest stages of Roman history the citizens blindly adhered to a literal interpretation of the law, and they observed the word of the law rather than its spirit. The first form of the Roman law was that of a system of rules of conduct expressly adapted only to fix the legal rights and obligations of Roman citizens with each other and was exceedingly technical in all its forms and limitations. The early Roman looked upon a foreigner as one with no status which the law was bound to respect. But as Rome expanded under a vigorous imperialistic policy, and the number of foreign visitors within the city and provinces increased, it was necessary for the government to provide some legal method of settling disputes and enforcing equitable remedies between her own citizens and foreigners within her domain. So Rome met this new state of affairs by creating the office of praetor, which was destined to be occu

pied by a long and distinguished line of her most

illustrious sons. It was the office of the praetor to sit in judgment upon contentions and disputes arising between Roman citizens and foreign traders and merchants. From the fact that the litigants came from all over the then known world, and therefore had varying conceptions of legal right and wrong, the praetor departed somewhat in his interpretation of the law from its strict technical interpretation. So instead of deciding these causes of action according to the strict letter of the law. the Roman praetor rendered his decisions in ac

cordance with those rules and principals of law which he found to be the common property of all nations.

In the course of time there appeared parallel with the law of the citizens, the civil law, or the jus civile, as it was called, a distinct and separate system of jurisprudence, called the jus gentium, or the law of nations. The determined purpose of the practor to decide causes of action according to the common sense of right, which he found prevalent among nations in general, gave to the jus gentium a far more rational and less technical character than what distinguished the jus civile.

For a time the jus gentium grew in popular esteem very fast, and was in a fair way to completely outstrip the stricter and sterner jus civile. But the praetors were empowered by law, at the beginning of their term of office, to issue edicts, whereby they would proclaim to the people the principles and rules of law by which they would be governed in deciding the various causes of action coming before them for judicial interpretation. Every praetor would in his edict make whatever changes his judicial temperament dictated, or the popular will, through its influence upon him, urged him to make in the edicts of his predecessors, retaining that which the prevailing sense of right in the community suggested.

The power of the praetor was in no way subject to any legal limitations and he could make whatever changes he deemed expedient in the prior law to make it conform to his own sense of right. The praetors exercised their power very liberally, and the populace favored this method of interpreting the law, and so we find in the course of time that the wall between jus civile and the jus gentium was wholly broken down, and the two systems merged into one inseparable and organic system of jurisprudence.

At this time Rome became infatuated with the stoic philosophy and drew from the Grecian philosophers their idea of the natural law. The jus gentium became impregnated with these Grecian ideas more and more, until finally it became, in its reduction to the forms of a science, the jus naturale, an ideal law which we would conceive to be in force in a perfect governmental system.

This jus naturale was a purely ethical conception of equity. It may be said, therefore, that the Roman equity or jus naturale forms what the ethical conception of the people from time to time held up as an ideal positive law, and that the Roman equity became part of the actual law so far as its conceptions represent the practice and general habits of the people. The gradual and natural absorption by the positive law of the new methods, and the growth in these ethical conceptions of the people as to the question of right and wrong. eventually eliminated everything that was harsh, barbarous and irrational; and there came into

being more rational and more just laws regulating private rights and public interests, until these ideas finally reached their completed state of per-. fection in the corpus juris civilis of Justinian.

The English common law, in its earliest days. like the Roman law, was barbarous, irrational and crude. Our English ancestors were equally as technical as the Romans, and they likewise adhered to a literal construction of the law.

The growth of equity in the Roman law and in the English law presents many striking analogies; similar causes made it a necessary part of the law, and as the same methods were up to a certain point pursued, so in principal the same results were reached.

The differences, however, are plainly manifest. No separate tribunal was made necessary in the Roman jurisprudence, because the ordinary magistrates were willing to do what the early English common-law judges refused to do; while the common-law judges stubbornly refused to inaugurate any changes in their established methods, the Roman praetors were the leaders in the work of reform, and were constantly on the watch to put in practice new and better methods of procedure. The English judges made a new and separate department necessary; the Roman praetors reformed their procedure by means of their own jurisdiction, and preserved in their jurisprudence a unity and similarity which the English and American jurisprudence lacks.

In the work of constructing a judicial system at this time in England the early common-law judges. as well as the chancellors at a later period, drew very largely from their own knowledge of the Roman jurisprudence. The evidence is very convincive from a historical point of view that the common law of England, in its primitive development, was much indebted to that Roman jurisprudence which forms the basis of the judicial systems of all the western nations of Europe. The clergy, who were in complete possession of all the learning in existence, were students of the Roman law. The earliest judges in England and also the chancellors, whose functions we will speak of later, were usually recruited from the higher orders of ecclesiastics, and on all occasions where it was their duty to legislate in the judgment of particular cases, to create new rules for cases hitherto undetermined, they naturally turned to the code with which they were familiar, borrowed many of its doctrines, and freely turned them to their own ideas in granting relief. Knowledge of the Roman law was not confined exclusively to the courts; its development became a matter of earnest study by the scholars of that period.

The English national character, and especially the character of England's Norman kings and barons, were largely responsible for the check put on this process of assimilation of the Roman law