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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..d7b82bc --- /dev/null +++ b/.gitattributes @@ -0,0 +1,4 @@ +*.txt text eol=lf +*.htm text eol=lf +*.html text eol=lf +*.md text eol=lf diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..2d2971c --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #51293 (https://www.gutenberg.org/ebooks/51293) diff --git a/old/51293-0.txt b/old/51293-0.txt deleted file mode 100644 index c7b4302..0000000 --- a/old/51293-0.txt +++ /dev/null @@ -1,9252 +0,0 @@ -Project Gutenberg's The Law and Medical Men, by Robert Vashon Rogers - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: The Law and Medical Men - -Author: Robert Vashon Rogers - -Release Date: February 24, 2016 [EBook #51293] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE LAW AND MEDICAL MEN *** - - - - -Produced by Bryan Ness, RichardW, and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive/Canadian Libraries) - - - - - - - - - - THE LAW AND MEDICAL MEN - - - BY - R. VASHON ROGERS, JR., - _Of Osgoode Hall, Barrister-at-Law_. - - - TORONTO, CANADA, - AND - EDINBURGH, SCOTLAND: - - CARSWELL & CO., LAW BOOK PUBLISHERS. - 1884. - - - - -PREFACE. - - -The idea that in the library of nearly every practitioner in the -professions of both Physic and Law there has been for some time a -small gap among the books, which could be filled by a little work like -this now submitted, has induced the author to prepare and publish the -following pages. - -While it is hoped that this little work will prove of use to the -members of the Legal and Medical Professions, it is intended to be -suggestive rather than exhaustive—a primer not an encyclopædia; and -it is not expected that it will obviate the necessity for frequent -conferences between physicians and lawyers whenever, in the practice of -either, questions arise requiring the experience of the other. - -In most cases the very words of the judges and reporters have been -used, and if any expressions are noticed that may be deemed over strong -it will be found that they are the words of others: the author’s aim -has been rather to act as an humble compiler and citer of cases, than -to obtrude opinions or theories of his own. - -Brief chapters on Dentists and Druggists have been given because of -the intimate connection between these gentlemen and the members of the -medical profession. - -With great diffidence this book is committed to the tender mercies -of the critics of these two learned professions—to those who can so -effectually wield the pen, the tongue and the scalpel. - -R. V. B., JR. - -Kingston, Ont., November, 1884. - - - - -CONTENTS. - - - PREFACE . . . iii - - TABLE OF CASES CITED . . . vii–xiii - - CHAPTER I. - - EARLY PRACTITIONERS AND LAWS . . . 1–14 - - CHAPTER II. - - FEES . . . 15–31 - - CHAPTER III. - - WHO SHOULD PAY THE DOCTOR . . . 32–41 - - CHAPTER IV. - - WHO MAY PRACTISE . . . 42–54 - - CHAPTER V. - - NEGLIGENCE AND MALPRACTICE . . . 55–81 - - CHAPTER VI. - - CRIMINAL MALPRACTICE . . . 82–92 - - CHAPTER VII. - - PROFESSIONAL EVIDENCE . . . 93–107 - - CHAPTER VIII. - - MEDICAL EXPERTS . . . 108–120 - - CHAPTER IX. - - EXPERTS IN INSANITY CASES . . . 121–128 - - CHAPTER X. - - DEFAMATION . . . 129–137 - - CHAPTER XI. - - RELATIONS WITH PATIENTS . . . 138–148 - - CHAPTER XII. - - DISSECTION AND RESURRECTION . . . 149–159 - - CHAPTER XIII. - - DENTISTS . . . 160–173 - - CHAPTER XIV. - - DRUGGISTS . . . 174–188 - - CHAPTER XV. - - PARTNERS, GOODWILL, ASSISTANTS . . . 189–195 - - INDEX . . . 197–214 - - - - -TABLE OF CASES CITED. - - - A. - - Abernethy v. Hutchinson, 195 - - Adams v. Stevens, 17, 18 - - Adler v. Buckley, 20, 21 - - Ahearne v. Hogan, 141 - - Allen v. Davis, 140, 172 - - ″ v. Eaton, 132 - - Allison v. Hayden, 16 - - Alpen v. Morton, 137 - - Anderson v. Burrows, 146 - - Andeureid’s Appeal, 138 - - Anon, 134, 190 - - Anthony v. Smith, 106 - - Apothecaries Company v. Lotinga, 12, 16 - - Ashworth v. Kittridge, 102 - - Askin & Charteris, _re_, 27 - - Aswell v. Lomi, 142 - - Austen v. Boys, 191 - - Aveson v. Lord Kinnaird, 96 - - Ayre v. Craven, 132, 134, 135. - - - B. - - Bacon v. Charlton, 96 - - Baker v. London & S. W. Railway, 96 - - Ballon v. Prescott, 73 - - Barber v. Merriam, 96, 97, 117. - - Barnes v. Means, 58 - - Barnstable v. Thatcher, 157 - - Basten v. Butler, 20 - - Bassett v. Spofford, 24 - - Battersby v. Lawrence, 16 - - Baxter v. Gray, 18, 19 - - Beekman v. Planter, 18 - - Bell v. Parke, 136 - - Bellinger v. Craigue, 21. - - Bells v. Clifford, 28 - - Bergold v. Puckta, 131 - - Berier v. Galloway, 36 - - Bibber v. Simpson, 52 - - Billage v. Southbee, 140 - - Bill v. Neal, 130 - - Blackburn v. Great Western Railway, 81 - - Blake v. Midland Railway, 81. - - Blackburn v. Mackey, 37, 39 - - Blogg v. Parkers, 20 - - Boardman v. Woodman, 113 - - Bogert v. Indianapolis, 153 - - Boone v. State, 188 - - Bowman v. Woods, 51, 53, 64, 100 - - Boyd v. Lappington, 33 - - Boynton v. Somersworth, 67, 148 - - Boyle v. Winslow, 166 - - Bracegirdle v. Orford, 157 - - Bradbury v. Bardin, 51, 120 - - Bradley v. Dodge, 33 - - Bradford v. People, 147 - - Brewer v. Dero, 157 - - Broad v. Pitt, 93 - - Brown v. N. Y. C., 97 - - ″ v. Marshall, 179 - - ″ v. Sheppard, 99, 101 - - ″ v. State, 143 - - Buchanan v. State, 29 - - Buell v. N. Y. C., 117 - - Burton v. Scott, 128 - - - C. - - Cadwallader v. West, 139, 140 - - Cairo, etc., Railway v. Mahoney, 41 - - Caldwell v. Murphy, 97 - - Camp v. Martin, 133 - - Campan v. North, 94 - - Campbell v. Richards, 119 - - Carpenter v. Blake, 57, 58, 63, 64, 72, 73 - - Carnes v. Nesbitt, 193 - - Carson v. State, 148 - - Carter v. Baker, 114 - - ″ v. State, 103 - - Castner v. Sliker, 112 - - Cawdry v. Highley, 130 - - Chamberland v. Morgan, 70 - - Chapen v. Marlborough, 96, 97 - - Chicago. etc., Railway v. McKean, 68 - - Chicago, etc., Railway v. McGiven, 108 - - Chorley v. Bolcot, 16 - - Clark v. Gill, 26 - - Clarke v. Freeman, 132 - - ″ v. Hawke, 138, 139 - - Clark v. Kerwin, 69, 163 - - ″ v. State, 116, 124 - - Clay v. Roberts, 134 - - Cleveland, etc., Railway v. Ferry, 68 - - Cohen v. Continental Insurance Company, 95 - - Collier v. Simpson, 99, 103 - - Collins v. Grady, 19 - - ″ v. Carnegie, 134, 135 - - ″ v. Graves, 23 - - Colton v. Thomas, 172 - - Commonwealth v. Butterick, 187 - - ″ v. Cooley, 155 - - ″ v. Hackett, 91 - - ″ v. Hallett, 187 - - ″ v. Loring, 155 - - ″ v. Marshall, 155 - - ″ v. McPike, 91 - - ″ v. Ramsdell, 187 - - ″ v. Rich, 128 - - ″ v. Rodgers, 109, 124, 127 - - ″ v. Sturtevant, 100, 117 - - ″ v. Thompson, 84, 89 - - Connecticut Mutual Life Ins. Co. v. Ellis, 100 - - Cooper v. Lloyd, 35 - - ″ v. Phillips, 38, 40 - - ″ v. N. Y. C., 41 - - Corsi v. Maretzek, 43, 51, 64, 115 - - Cossey v. L. B, and S. C., 96 - - Cox v. Midland Counties Ry., 41 - - Craig v. Chambers, 76 - - Craine v. Bandoine, 33 - - Crantz v. Gill, 37 - - Curtis v. Rochester, etc. Ry., 79 - - - D. - - Davidson v. Nicholls, 183 - - Davis v. Mason, 193 - - ″ v. Ockham, 131 - - ″ v. State, 113, 117, 124, 126 - - Deane v. Annis, 38 - - Delafield v. Parish, 124 - - Demay v. Roberts, 145 - - Dement, _Ex parte_, 30 - - Denison v. Denison, 138 - - Dent v. Bennett, 139, 140, 172 - - Denton v. State, 97, 98 - - Dickenson v. Barber, 124 - - Dingnan v. Walker, 192 - - Dixon v. Smith, 134 - - Doggett v. Lane, 141 - - Duclos’ Succession, 24 - - Duffit v. James, 21 - - Durnell v. Corfield, 142 - - - E. - - Eakin v. Brown, 68, 163 - - Edington v. Ætna Life Ins. Co., 96 - - Edsall V. Russell, 131, 133 - - Ellis v. Kelly, 16 - - Emerson v. Lowell Gas L. Co., 112 - - - F. - - Fairchild v. Bascomb, 112, 113, 125, 126 - - Farnsworth v. Garrard, 20 - - Farlar v. Lane, 141 - - Farr v. Pearce, 191 - - Fawcett v. Mothersell, 77 - - Fenwick v. Bell, 119 - - Fields v. Rutherford, 76 - - Fisk v. Wait, 69 - - Fletcher v. Fletcher, 146 - - Flint v. Bodenhamer, 124 - - Flower’s Case, 130 - - Fox v. Glastonbury, 20 - - Forgery v. First Nat. Bank, 114 - - Foster v. Small, 134 - - Fraser v. Jennison, 94, 103, 106 - - - G. - - Gale v. Rector, 103 - - Gallagher v. Thompson, 20 - - Gardiner v. Heartt, 56 - - Gardner v. People, 117 - - Geiselman v. Scott, 68 - - Genshaw v. Germain, 17 - - Getchell v. Hill, 114 - - George v. Skivington, 183 - - Gibson v. Russell, 140 - - ″ v. Williams, 119 - - Gilman v. Andrews, 171 - - Gladwell v. Steggall, 75 - - Gramm v. Boener, 69 - - Goddart v. Haselfoot, 132 - - Granger Ins. Co. v. Brown, 159 - - Grattan v. Metropolitan L. I. Co., 95 - - Gray v. McLaughlin, 97 - - Greenough v. Gaskill, 93 - - Greonvelt’s Case, 55 - - Greville v. Lylee, 142 - - Guthrie v. Weaver, 153 - - - H. - - Haguenin v. Baseley, 138 - - Hains’ Case, 152 - - Hall v. Semple, 146 - - Hammond v. Stewart, 26 - - Hancke v. Hooper, 58, 167, 194 - - Handey v. Henson, 17 - - Haniline v. Commonwealth, 174 - - Hansford v. Payne, 182 - - Harbottle and Wilson _re_, 27 - - Harris v. Panama Railway Co., 103, 113 - - Harris v. Russell, 94 - - Harrison v. Bush, 136 - - ″ v. Grady, 33, 35, 36 - - Hartman v. Tegart, 36 - - Hartford Pro. Ins. Co. v. Harmer, 108 - - Harvey v. State, 104 - - Hastings v. Rider, 128 - - ″ v. Whitley, 193 - - Hathaway v. Nat. Life Ins. Co., 112 - - Haynard v. Young, 193 - - Hathorn v. Richmond, 61 - - Heald v. Wing, 113, 128 - - Heath v. Gibson, 59 - - Hegerick v. French, 80 - - Heinemann’s Appeal, _re_, 48 - - Hewitt v. Prime, 95 - - ″ Wilcox, 18 - - Hibbard v. Thompson, 68, 69 - - Hides v. Hides, 140 - - Higham v. Ridgway, 106 - - Hill v. Featherstonhaugh, 21 - - Hills v. Home Insurance Co., 113 - - Hitchcock v. Burgett, 148 - - Hoard v. Peck, 187 - - Hoener v. Koch, 118 - - Hoghton v. Hoghton, 138, 139 - - Hollenback v. Fleet, 177 - - Holmes v. Halde, 80 - - Hood v. Grimes, 65 - - Horner v. Graves, 193 - - Horton v. Green, 54, 112 - - Howe v. Young, 179 - - Hoyt v. Casey, 39 - - Hughes v. Hampton, 23 - - Huffman v. Click, 103 - - Humphreys v. Stilwell, 137 - - Hunn v. Hunn, 95 - - Hunter v. Blount, 64 - - ″ v. Ogden, 73 - - ″ v. Sharpe, 133 - - Hunt v. Lowell Gas Light Co., 126 - - Hupe v. Phelps, 21 - - - I. - - Illinois Cen. Railway v. Sutton, 97 - - Indianapolis, etc., Railway v. Gaston, 79 - - Indian. and Cin. Railway v. Caldwell, 69 - - - J. - - Jackson v. Hyde, 77 - - Jarrett v. Jarrett, 124 - - Jauncey v. Knowles, 190 - - Jenkins v. French, 80 - - Johnson v. Robertson, 131 - - ″ v. Wills, 79 - - Jones v. Diver, 133 - - ″ v. Fay, 184 - - ″ v. Goodrich, 141 - - ″ v. George, 178 - - ″ v. Murray, 179 - - ″ v. Northmore, 78 - - ″ v. White, 108 - - - K. - - Kannen v. McMullen, 21 - - Keily v. Colton, 164 - - Keith v. Lothrop, 116 - - Kennard v. Burton, 97 - - Kennedy v. People, 108, 119 - - Kerwhaker v. Cleveland, etc., Railway, 69 - - Kilborne v. Jennings, 114 - - Kingston’s Case, Duchess of, 93 - - Kinney v. Nash, 135 - - Klock v. Burger, 174 - - - L. - - Lamphier v. Philpot, 84 - - Landon v. Humphrey, 22 - - Langdon v. Mutual Life Insurance Co., 54 - - Lee v. Hamerton, 96 - - ″ v. Griffin, 169 - - Leighton v. Sargent, 58, 64, 67, 79, 118 - - Lett v. St. Lawrence & Ottawa Railway, 81 - - Lester v. Pittsford, 113 - - Linn v. Sigsbee, 120 - - Livingstone’s Case, 113 - - Long v. Chubb, 132 - - ″ v. Morrison, 21, 57 - - Longmeid v. Holliday, 74 - - Lorg v. First German Cong. 113 - - Lovatt v. Tribe, 125 - - Luning v. State, 100, 105 - - Lush v. McDaniel, 97 - - Lynn’s Case, 154, 158 - - - M - - Mackenna v. Parkes, 190 - - Mahoney v. Nat. Widow’s Life Ass. 96 - - Major v. Knight, 142 - - Mallan v. May, 193 - - Malton v. Nesbitt, 125 - - Marshall v. Brown, 101 - - ″ v. Peck, 179 - - Masons v. Fuller, 111 - - Matteson v. N. Y. C. Railway, 97, 117 - - Maxon v. Perrott, 170 - - May v. Thompson, 192 - - Meagher v. Driscoll, 157 - - Mendum v. Commonwealth, 113 - - Mertz v. Detweiler, 64, 118 - - Metropolitan Railway v. Jackson, 76 - - Michigan Cen. Railway v. Hasseneyer, 61 - - Middleton v. Sherbourne, 141, 143 - - Miller v. Beal, 23 - - Mills v. Perkins, 174 - - Mitchell v. Homfray, 141 - - ″ v. State, 119 - - ″ v. Connor, 147 - - Mock v. Kelly, 18, 25 - - Moises v. Thornton, 135 - - Morgan v. Hallen, 17 - - ″ v. Schuyler, 173 - - Morrison v. Harmer, 133 - - Morse v. Auburn, etc., Railway, 81 - - Morse v. State, 119 - - Murphy v. Kellett, 137 - - - Mc. - - McAllister v. State, 124, 126 - - McCandless v. McWha, 58, 59, 61, 67 - - McClallen v. Adams, 26 - - McClurg’s Appeal, 193 - - McEwan v. Bigelow, 114 - - ″ v. Milne, 138 - - McIntyre v. Belcher, 191 - - McLeod v. Wakley, 133 - - McPherson v. Chedell, 18 - - - N. - - Newell v. Doty, 117 - - New England Glass Co. v. Lovell, 119 - - New Orleans, etc., Railway v. Allbritton, 111 - - Newton v. Ker, 23 - - Nickson v. Brohan, 194 - - Nicols v. Pitman, 195 - - Norton v. Sewall, 182 - - - O. - - Ordway v. Haynes, 103 - - - P. - - Page v. Barker, 118 - - ″ v. State, 126 - - Parker v. Adams, 68, 69, 163 - - Parkinson v. Atkinson, 26 - - Parnell v. Commonwealth, 114, 124 - - Patten v. Wiggin, 52, 57, 58, 62 - - Peacock v. Kesnot, 140 - - Pennell v. Cummings, 145 - - People v. Anderson, 103 - - ″ v. Hall, 99 - - ″ v. Monroe, 20 - - People v. Montgomery, 30 - - ″ v. McCann, 125 - - ″ v. N. Y. Hospital, 69 - - ″ v. Wheeler, 103 - - Perionowsky v. Freeman, 66, 70 - - Phillips v. S. W. Railway, 79 - - Pierson v. People, 95 - - Pinney v. Cohill, 101 - - Piper v. Manifee, 22, 167 - - Pippin v. Shepherd, 65, 74 - - Poe v. Mondford, 131 - - Polk v. State, 112 - - Popham v. Brooke, 140 - - Potter v. Warner, 63, 71 - - ″ v. Virgil, 36 - - Poucher v. Norman, 16 - - Pratt v. Barker, 140 - - Puryear v. Reese, 124 - - - Q. - - Quafe v. C. & N. W. Railway, 98 - - - R. - - Ramadge v. Ryan, 118, 119, 132 - - ″ v. Wakley, 132 - - Ray v. Burbank, 186 - - Reynolds v. Graves, 54 - - ″ v. Robinson, 120 - - Rhodes v. Bates, 138 - - Rice v. State, 84, 87, 89 - - Rich v. Pierpont, 59, 62, 117 - - Ripon v. Bittel, 100, 101 - - Ritchey v. West, 65 - - Roberts v. Johnson, 112 - - ″ v. Kerfoot, 24 - - Robinson v. N. Y. C. Railway, 103 - - Rodgers v. Cline, 133 - - Roelker, _re_, 29 - - Rogers v. Cain, 97 - - ″ v. Turner, 38 - - Roosa v. Boston Loan Co., 98 - - Rose v. College of Physicians, 12 - - Rowell v. Lowell, 98 - - Ruddock v. Lowe, 65 - - Russell v. State, 128 - - Rutherford v. Evans, 135 - - ″ v. Norris, 110 - - R. v. Bennett, 194 - - ″ v. Burnett, 147 - - ″ v. Campbell, 46 - - ″ v. Case, 144 - - ″ v. Chamberlaine, 85 - - ″ v. Coll. Phy. & Sur., 45, 47 - - ″ v. Coll. Phy. & Sur., Ont., 148 - - ″ v. Coney, 144 - - ″ v. Crouch, 103 - - ″ v. Cuddy, 144 - - ″ v. Downes, 39 - - ″ v. Frances, 144 - - ″ v. Fraser, 147 - - ″ v. Gibbons, 93 - - ″ v. Gilles, 154 - - ″ v. Hannah, 147 - - ″ v. Hessel, 46 - - ″ v. Higginson, 125 - - ″ v. Hines, 39 - - ″ v. Lee, 91 - - ″ v. Long, 83, 86, 87 - - ″ v. Lynn, 154, 159 - - ″ v. Macleod, 66 - - ″ v. Markuss, 88 - - ″ v. Morby, 39 - - ″ v. Noakes, 56, 183 - - ″ v. Offord, 124 - - ″ v. Price, 154 - - ″ v. Richards, 125 - - ″ v. Rosinski, 144 - - ″ v. Searle, 120, 124, 125 - - ″ v. Sharpe, 153, 154 - - ″ v. Stanton, 144 - - ″ v. Simpson, 65, 84, 87 - - ″ v. Smith, 40 - - ″ v. Spiller, 84 - - ″ v. Spilling, 85 - - ″ v. Stitt, 117 - - ″ v. Sutton, 147 - - ″ v. Tefft, 46, 190 - - ″ v. Tessymond, 194 - - ″ v. Thomas, 99 - - ″ v. Trick, 83 - - ″ v. Van Butchell, 84 - - ″ v. Vantandillo, 147 - - ″ v. Wagstaffe, 39 - - ″ v. Webb, 84, 90 - - ″ v. West, 147 - - ″ v. Whitehead, 117 - - ″ v. Williamson, 85 - - ″ v. Wright, 125 - - - S. - - Sainter v. Ferguson, 193 - - Scott v. Wakem, 146 - - Seare v. Prentice, 21, 64 - - Seavey v. Preble, 143 - - Secord v. Harris, 131 - - Sellen v. Norman, 40 - - Shafer v. Dean’s ad’mor, 120 - - Shearwood v. Hay, 44 - - Sheldon v. Johnston, 24 - - Shields v. Blackburne, 65, 66 - - Simmons v. Means, 18 - - Simonds v. Henry, 58, 162, 168 - - Simpson v. Dismore, 18 - - Sinclair v. Rourk, 113 - - Sizer v. Burt, 106 - - Skinner v. G. N. Ry., 96 - - Skirving v. Ross, 134 - - Slater v. Baker, 59, 71, 168 - - Small v. Howard, 61 - - Smith v. Lane, 51 - - ″ v. Hyde, 25 - - ″ v. Watson, 18, 34 - - Southey v. Denny, 130, 132 - - Spaun v. Mercer, 33 - - Stackman v. Vivian, 38 - - Staunton v. Parker, 94 - - State v. Bowman, 117 - - ″ v. Clark, 118 - - ″ v. Cook, 112 - - ″ v. Dickinson, 147 - - ″ v. Fitzgerald, 147 - - ″ v. Gedicke, 147 - - ″ v. Hardister, 88 - - ″ v. Henkle, 112 - - ″ v. Hoyt, 104, 105 - - ″ v. Holmes, 174 - - ″ v. Knowles, 188 - - ″ v. Laffer, 187 - - ″ v. Jones, 117 - - ″ v. Powell, 117 - - ″ v. Reddick, 112 - - ″ v. Shultz, 85, 89 - - ″ v. Slagh, 117 - - ″ v. Slagle, 147 - - ″ v. Smith, 116, 117 - - ″ v. Sturtevant, 117 - - ″ v. Watson, 110 - - ″ v. West, 104 - - ″ v. Windsor, 126 - - ″ v. Wood, 111, 117 - - ″ v. Wray, 188 - - Stephenson v. N. Y. and H. R. Ry., 41 - - Stirling v. Thorp, 100 - - Street v. Blackburn, 166 - - St. Louis Mut. Ins. Co. v. Graves, 115 - - Suegoe’s Case, 133 - - Summer v. State, 31 - - Sutton v. Tracy, 48, 54 - - Swain v. Tyler, 38 - - - T. - - Tate v. State, 155, 156 - - Tatum v. Mohr, 114 - - Tingley v. Congill, 125 - - Thistleton v. Frewer, 52 - - Thomas v. Winchester, 180 - - Thorpe v. Shapleigh, 36 - - Todd v. Myers, 23 - - Toomes, _re_, 111, 113 - - Towne v. Gresley, 17 - - Tracy Peerage, 110 - - Tullis v. Kidd, 113 - - Tulty v. Alewin, 131 - - Turner v. Reynall, 44, 190 - - ″ v. Turner, 26 - - Tuson v. Batting, 19, 23 - - Twombly v. Leach, 117 - - - U. - - U. S. v. McGlue, 126, 127 - - Utley v. Burns, 58 - - - V. - - Van Bracken v. Fondar, 179 - - Van Tassel v. Capson, 135 - - Veitch v. Russell, 16 - - Villalobas v. Mooney, 23 - - - W. - - Wade v. DeWitt, 104, 105 - - Wagstaffe v. Sharpe, 44 - - Walker v. G. W. Railway, 41 - - Wakley v. Healey, 135 - - Washburn v. Cuddihy, 103 - - Watling v. Walters, 33 - - Watson v. Vanderlash, 131 - - Webb v. Paige, 26, 28 - - Webber v. Shampake, 36 - - Wennall v. Adney, 40 - - Whetherbee v. Whetherbee, 128 - - Whalen v. St. Louis, etc., Railway, 79 - - Wharton v. Brook, 130 - - Wheeler v. Sims, 23 - - Whitcomb v. Reid, 171 - - Whittaker v. Parker, 110 - - White v. Bailey, 124, 125 - - ″ v. Carroll, 132 - - Williams v. Poppleton, 118 - - ″ v. Williams, 153 - - Wilmot v. Howard, 57, 70 - - ″ v. Shaw, 47 - - Wilson v. Brett, 65, 166 - - ″ v. Granby, 97 - - ″ v. People, 117 - - ″ v. Rastall, 93 - - Winans v. N. Y. & E. Railway, 113, 121 - - Wise v. Wilson, 194 - - Witt v. Witt, 97 - - Wohlfarht v. Beckert, 185 - - Woods v. Kelly, 37 - - Woods v. State, 188 - - Wright v. Proud, 140 - - Wynkoop v. Wynkoop, 153 - - - Y. - - Yertore v. Wiswall, 80 - - Yoe v. State, 105 - - Young v. Makepeace, 116 - - - - -CORRIGENDA. - - - Page 5, line 23, _for_ ousted _read_ ousting. - ″ 8, line 3, _for_ was _read_ were. - ″ 12, line 17, _for_ his _read_ its. - ″ 24, line 19, _for_ friend _read_ friends. - ″ 43, line 18, _read_ Hahnemann _for_ Hahnneman. - ″ 55, line 6, _for_ misdemeanour _read_ misdemeanor. - ″ 85, last line but one, transpose the , and the ;. - ″ 96, line 7, _read_ witnesses, can be excluded the - ″ 103, line 15, _for_ Brown’s _read_ Browne’s. - ″ 105, line 10, _for_ words _read_ works. - ″ 115, line 5, _for_ opinion _read_ opinions. - ″ 119, last line but one, _read_ opinion of another etc. - ″ 138, line 1, _read_ occupies _for_ occupying. - ″ 173, line 12, _read_ within. - ″ 175, line 4, _read_ chemical. - ″ 177, last line, _read_ venditor. - - - - -THE LAW AND MEDICAL MEN. - -CHAPTER I. - -EARLY PRACTITIONERS AND LAWS. - - -The first medical practitioners in England, of whom we have any record, -were the Druids: these philosophers, theologians and soothsayers, -also practised medicine and surgery, and were skilled in anatomy and -physic. To add to the veneration in which they were held, to impress -the ignorant masses with the idea that they had power with the gods and -could prevail, and perhaps to cultivate a belief in the efficacy of -the remedies provided, they mingled incantations and charms with their -medicaments and nostrums. Their panacea was the mistletoe, cut from -the sacred oak, with a consecrated hook of gold held in holy hands, on -a mysterious night when the propitious beams of the waxing moon fell -upon it; wrapped for a while in a sanctified cloth and treasured up in -the holy of holies of the woodland god, this strange parasitic growth -was deemed possessed of many virtues and was named All-heal. Two other -herbs, the selago and samolus were also in those days highly valued for -their medicinal efficacy. - -To every healing herb a divinity was assigned by the Druids, and the -good gods were ever ready to help suffering |2| humanity against the -evil genii who presided over the poisonous and unwholesome. - -These priests also considered the creeping through _tolmens_ (or -perforated stones) good for many diseases. Their best charm, however, -was the anguineum, or snake’s egg, produced (’tis said) from the saliva -and frothy sweat of a cluster of snakes writhing in a tangled mass, -tossed in the air by the fierce hissings of the serpents, and caught -ere it fell to the ground in a clean white cloth. A genuine egg, though -encased in gold, would float against a running stream and do many -another marvel. The Druid seems to have been a herbalist, a believer -in the faith or prayer cure, as well as a homœopathist, for in taking -the diseased plant, the mistletoe, to cure diseases he anticipated the -doctrine of _similia similibus curantur_. - -Even in those old days, according to Tacitus, there were female -physicians who competed with the practitioners of the other sex. The -wives of the Druids exercised the calling of sorceresses, causing -considerable evil by their witchcrafts, but caring for warriors -wounded in battle. Later on women seem to have enjoyed a pre-eminence -as physicians and surgeons in England. Thus are we told that a “Mayd” -treated a wounded “Squyre,” - - Meekely shee bowed downe, to weete if life - Yett in his frosen members did remaine; - And, feeling by his pulses beating rife - That the weake sowle her seat did yett retaine, - Shee cast to comfort him with busy paine. - - * * * * * - - Into the woods thenceforth in haste shee went, - To seeke for herbes that mote him remedy; - For she of herbes had great intendiment. - - * * * * * - - There, whether yt divine tobacco were, - Or panachæa, or polygony, - Shee fownd, and brought it to her patient deare, - Who al this while lay bleding out his hart blood neare. |3| - The soveraine weede betwixt two marbles plaine - Shee pownded small, and did in peeces bruze; - And then atweene her lilly handes twaine - Into his wound the juice thereof did scruze; - And round about, as she could well it uze, - The flesh therewith she suppled, and did steepe - T’abate all spasme and soke the swelling bruze; - And, after having searcht the intuse deepe, - She with her scarf did bind the wound from cold to keep [1]. - -Of fair Nicolette we read— - - Her strength alone - Thrust deftly back the dislocated bone; - Then culling various herbs of virtue tried, - While her white smock the needful bands supplied, - With many a coil the limb she swathed around, - And nature’s strength returned. - -Chirurgery, or surgery—that is manual application—appears to have been -the earliest branch of the healing art. We are told of a wonderful cure -effected upon Queen Elgiva, whose beauteous face had been mutilated -by the brutal clergy. Many superstitious practices were in the early -days mingled with the operations of the surgeons, as well as of the -physicians. History speaks of a man the muscles of whose legs were -drawn up and contracted so as to defy all the skill of the surgeons, -until an angel advised wheat flour to be boiled in milk, and the limb -to be poulticed with it while warm; then all was well. - -From the tenth to the twelfth century the practice of medicine and -surgery, in England, was almost exclusively in the hands of the monks -and clergy. So lucrative did they find it that many of the monks -devoted themselves entirely to it, to the utter neglect of their -religious duties. This the authorities of the church disapproved of, -and made many attempts to restrain. At last, in 1163, it was enacted -by the Council of Tours that no clergyman or monk should undertake any -bloody operation. From that time |4| the clerics confined themselves -to prescribing medicines, and the practice of surgery naturally fell -into the hands of the barbers and smiths, who had previously been -employed as assistants and dressers to the ecclesiastical operators. - -The smiths soon found that most of the business was absorbed by the -barbers: the latter kept little shops for cutting hair, shaving, -bathing and curing the wounded, especially about the royal palaces and -the houses of the great: the shops were marked by a striped pole and a -basin, symbols that all the king’s subjects might know where to apply -in time of need; (the fillet around the pole indicating the ribbon for -bandaging the arm in bleeding, and the basin the vessel to receive -the blood). The barbers became so important that in 1461 the freemen -of “The Mystery of Barbers, using the mystery or faculty of Surgery,” -obtained a charter from Edward IV., and were incorporated under the -name of “The Company of Barbers in London,” and none were allowed to -practise save those admitted by the company. Although this charter was -several times confirmed by subsequent kings, yet side by side with -the regular barber-surgeons there grew up a body of men who practised -pure surgery, and who actually formed a company, called “The Surgeons -of London.” In 1540, by Act of Parliament, these rival companies -were united and named “The Masters, or Governors, of the Mystery and -Commonalty of the Barbers and Surgeons of London.” - -The third section of this Act, after reciting that persons using the -mystery of surgery oftentimes meddled and took into their cure and -houses people infected with pestilence, great pox, and other contagious -infirmities, and also used or exercised barbery, as washing, or -shaving, or other feats thereto belonging, “which was very perilous for -infecting the King’s liege people resorting to their shops and houses -and there being washed and shaven,” enacted “that no |5| manner of -person within the City of London, suburbs of the same and one mile -compass of said City of London, after the feast of the Nativity of Our -Lord God then next coming, using barbery or shaving, or that hereafter -shall use barbery or shaving within the said city, etc., he nor they, -nor none of them, to his, her, or their use, shall occupy any surgery, -letting of blood, or any other thing belonging to surgery, drawing of -teeth only excepted; and furthermore, in like manner, whosoever that -useth the mystery or craft of surgery within the circuit aforesaid, as -long as he shall fortune to use the said mystery or craft of surgery, -shall in nowise occupy nor exercise the feat or craft of barbery or -shaving, neither by himself, nor by one other for him, to his or their -use; and moreover, that all manner of persons using surgery for the -time being, as well freemen as foreigners, aliens and strangers within -the circuit aforesaid, before the feast of St. Michael the Archangel, -next coming, shall have an open sign on the street side where they -shall fortune to dwell, that all the King’s liege people there passing -by may know at all times whither to resort for remedies in time of -necessity [2].” - -In 1745 this union of barbers and surgeons was dissolved; or, -apparently, the surgeons ousting the barbers, received a new name -and all the privileges of the old company, with the exclusive right -to practise within London and for seven miles around. In 1800 the -Surgeons’ Company was called “The Royal College of Surgeons, in -London;” and this, in 1843, was changed to that of “The Royal College -of Surgeons of England.” - -In Scotland, at a very early day, the chirurgeons and barbers were -united, and enjoyed many rights and privileges. In 1505 the “craftes -of Surregeury and Barbouris” were |6| formed into a college or -corporation, by the town council of Edinburgh, and became one of the -fourteen incorporated trades of the city. George the Third erected this -corporation into a Royal College, and now it is known as “The Royal -College of Surgeons of Edinburgh.” In 1599, James VI., “to avoid the -inconvenience caused by ignorant, unskilled, and unlearned persons, -who, under the colour of chirurgeons, are in the habit of abusing the -people to their pleasure, and of destroying thereby infinite numbers -of his Majesty’s subjects,” incorporated the faculty of Physicians -and Surgeons of Glasgow; and gave them jurisdiction over the City of -Glasgow and the adjoining counties. A recent Act of Parliament has very -much shorn the privileges of this faculty [3]. - -In Ireland, the “Fraternity of Barbers and Chirurgeons of the Guild -of S. Mary Magdalene” was incorporated by Henry II. The apothecaries -belonged to this body until 1745, when, with the aid of a statute, they -set up for themselves, as “The Guild of S. Luke,” or “The worshipful -Company of Apothecaries.” In 1784 the regularly educated surgeons of -Dublin became incorporated under the name of “The Royal College of -Surgeons in Ireland.” - -In the twelfth century medicine seems to have been first studied -as a science in England. The Universities enacted that none should -practise physic without passing through a certain course of study. In -the fourteenth century the degree of Doctor of Physic was by no means -uncommon. For many years physicians were greatly aided in chemistry and -medical science by the discoveries of alchemists, and the search after -the philosopher’s stone and the elixir of life gave many useful hints -to practitioners. Chaucer well describes a “Doctour of Phisike,” in the -Prologue to the |7| Canterbury Tales, and gives an insight into the -state of medical knowledge in the fourteenth century. - - ——He was grounded in astronomie. - He kept his patient a ful gret del - In houres by his magike naturel. - - He knew the cause of every maladie, - Were it of cold, or hote, or moist, or drie, - And when engendred, and of what humour. - He was a veray parfite practisour. - The cause yknowe, and of his harm the rote, - Anon he gave to the sike man his bote. - Ful redy hadde he his apothecaries - To send him dragges, and his lettuaries, - For eche of hem made other for to winne: - His frendship n' as not newe to beginne. - Wel knew he the old Esculapius, - And Dioscorides, and eke Rufus; - Old Hippocras, Hali, and Gallien; - Serapion, Rasis and Avicen; - Averrois, Damascene and Constantin, - Bernard, and Gatisden and Gilbertin. - Of his diete mesurable was he, - For it was of no superfluitee, - But of gret nourishing and digestible. - His studie was but litel on the Bible. - -In 1421, under Henry V., an Act was prepared, providing that “no one -shall use the mysterie of fysyk, unless he hath studied it at some -university, and is at least a bachelor in that science. And saying, the -sheriff shall inquire whether any one practises in his county contrary -to this regulation; and if any one so practise fysyk he shall forfeit -£40 and be imprisoned: and any woman who shall practise fysyk shall -incur the same penalty.” But this appears never to have become law. - -It was not, however, until the beginning of the sixteenth century that -modern British medical practice may be said to have commenced. And -in 1511 was passed the first |8| statute for regulating the medical -profession [4]. From the preamble of this Act we learn that physic and -surgery were then practised by “ignorant persons, who could tell no -letters on the book, and by common artificers, smiths, weavers, and -women, who took upon themselves great cures, partly using sorcery and -witchcraft, partly applying very noxious medicines to the disease.” - -Many years after this, however, were to be found those who though -not “ignorant persons” approved of what would now be called sorcery, -witchcraft and noxious medicines. Bacon gives the following as -infallible cures for the whooping-cough: let a pie-bald horse breathe -on the patient: give him fried mice, three a day for three days in -succession: pass the sick person nine times under the belly and over -the back of a donkey: feed the patient on currant cake made by a woman -who did not change her name when she was married: or, hold a toad in -the mouth that it may catch the disease. Burton, the Anatomist, says -that an amulet consisting of a spider in a nut-shell, lapped with silk, -is a cure for ague. Graham, in his “Domestic Medicine,” prescribes -spider’s webs for ague and intermittent fevers. - -By the statute of Henry the profession was for the first time divided -into physicians, surgeons and apothecaries: a division still kept up -in England. It also enacts, under a penalty, that “no physician or -surgeon shall practise in London, or within seven miles of it, without -examination by the Bishop of London, or the Dean of St. Paul’s, and -four doctors of physic; nor out of the city, or precinct, but if he -be first examined and approved by the bishop of the diocese, or his -vicar-general, calling to them such expert persons in the same faculty -as their discretion shall think convenient.” Fancy a D.D. sitting in -judgment on an |9| M.D. How orthodox and regular in his attendance at -church would the latter have to be! However, 14 & 15 Henry VIII. cap. -5, vests this power of examination in the President and Elects of the -College of Physicians of London. This Royal College was founded in 1518 -by letters patent from the king. Power was given to it to make laws -for the government of all men of the faculty of physic in London and -within seven miles, and for the correction of the physicians within -those limits and their medicines: and none could practise within those -limits without a license. Shortly after an Act of Parliament confirmed -this patent so that none could practise in England without the license -of the college, save graduates of Oxford and Cambridge. Subsequently -Fellows of the college were given power, together with the warden of -the Apothecaries’ Society, to enter the houses of apothecaries in -London, to examine their wares, drugs and stuffs, and to burn and -destroy those that were defective. - -In 1560, by 32 Henry VIII. cap. 40, surgery was declared a part of -physic, and the practice thereof was thrown open to all of the company -or fellowship of physicians throughout the realm. Not long afterwards -the Parliament of this reforming king seems to have changed its mind -and made a move in the direction of free-trade in physic, and by 34 & -35 Henry VIII. cap. 8, any man or woman was permitted to practise to -a limited extent. We fancy we can trace the influence of the sturdy -king in the provisions of this Act, which was entitled, “An Act that -persons being no common surgeons may administer outward medicines -notwithstanding the statute;” the statute after referring to the Act -passed in the third year of the king’s reign (which imposed penalties -upon those who should practise as physicians or surgeons without being -examined and admitted) goes on to say, “Sithence the making of which -said Act (that of 3 Henry VIII.) the |10| company and fellowships of -surgeons of London, minding only their own lucres, and nothing the -profit or ease of the diseased or patient, have sued, troubled and -vexed divers honest persons, as well men as women, whom God hath endued -with the knowledge of the nature, kind and operation of certain herbs, -roots and waters, and the using and ministering of them to such as be -pained with customable diseases, as women’s breasts being sore, a pin -and the web in the eye, uncomes of hands, burnings, scaldings, sore -mouths, the stone, strangury, saucelin, and morphers, and such other -like diseases; and yet the said persons have not taken anything for -their pains or cunning, but have ministered the same to poor people -only, for neighbourhood and God’s sake, and of pity and charity. And -it is now well-known that the surgeons admitted will do no cure to any -person, but where they shall know to be rewarded with a greater sum or -reward than the cure extendeth unto: for in case they would minister -their cunning unto sore people unrewarded there should not so many rot -and perish to death, for lack of help of surgery, as daily do; but the -greatest part of surgeons admitted have been much more to be blamed -than those persons that they trouble.” It further states that “although -the most part of the persons of the said craft of surgery have small -cunning, yet they will take great sums of money and do little therefor, -and by reason thereof they do oftentimes impair and hurt their patients -rather than do them good.” In consideration whereof and for the ease -and health of the king’s poor subjects, it was enacted that it should -be lawful to every person having knowledge and experience of the nature -of herbs, etc., to practise and minister them without suit or vexation. -(Here is evidence of the existence of herb doctors, hydropaths and lady -physicians in those days.) - -Numerous Acts of Parliament have been passed touching the medical -profession since the days of “Bluff King Hal,” |11| one under -James I. to prevent popish recusants practising physic, or using or -exercising the trade or art of an apothecary; another under William -and Mary for exempting apothecaries from serving as constables or -scavengers; another for exempting spirits and spirituous liquours used -by physicians, &c., in the preparation of medicine from duty, and -others for purposes too numerous to mention. But it is the Medical -Act of 1858, as amended by 22 Vict. cap. 21, that now governs the -practitioners. - -In 1681, the Royal College of Physicians of Edinburgh, was incorporated -and power was given of licensing practitioners and of preventing others -practising. In Ireland, although the idea had been conceived many years -before, it was not until 1654 that a body called “The President and -Fraternity of Physicians” was founded; subsequently this company was -incorporated and powers given to it very similar to those enjoyed by -the London College. Under the Medical Act, Her Majesty was empowered to -change the name of this institution (which had already enjoyed several -aliases), to that of “The Royal College of Physicians of Ireland.” - -In England and Ireland a third class of medical practitioners exists, -namely, the apothecaries. Prior to the days of Henry VIII. an -apothecary seems to have been the common name in England for a general -practitioner in medicine. About that time shops began to be established -for the exclusive sale of drugs and medicinal compounds, and those -who kept these shops often took upon them to doctor their customers. -In 1542 Henry’s parliament permitted any irregular practitioner to -administer outward medicines, and these shopkeepers readily availed -themselves of the permission granted by the Act and pushed the sale of -their drugs and obtained larger prices on account of the advice they -gave with them, and they appropriated exclusively the title of |12| -apothecaries. In 1617 they were incorporated under the name of “The -Master, Wardens and Society of the Art and Mystery of Apothecaries of -the City of London.” About the beginning of the seventeenth century -they began to prescribe as well as supply medicine; and although the -College of Physicians resisted this poaching on what they considered -their preserves, still early in the eighteenth century the matter was -settled in favor of the apothecaries, since which time they have been -legally recognised as a branch of the medical profession [5]. - -An Act of 1815 now regulates the practice of apothecaries throughout -England and Wales, and no one can act as such or recover any charges -for his services unless he has a certificate from the Society of -Apothecaries. An apothecary is bound to make up any prescription -duly signed by a licensed physician [6]. Creswell, J., considered an -apothecary one “who professes to judge of internal disease by its -symptoms, and applies himself to cure that disease by medicine.” And -Glenn says that the practice of an apothecary may now be said to -consist in attending and advising patients afflicted with diseases -requiring medical (as distinguished from surgical) treatment; and -prescribing, compounding and supplying medicines for their cure and -relief [7]. - -The invention of medicine was generally attributed by the ancients -to the gods, and both in Egypt and Greece female divinities were -intimately connected with the healing art. Isis not only caused, but -cured disease; she discovered—so it was said—many remedies and as late -as Galen several compounds in the materia medica bore her name. Hygeia, -the daughter of Æsculapius, was deemed |13| the goddess of health, and -Juno presided at accouchments. These fables show that in the remotest -antiquity woman practised medicine. The laws of Greece, at a later -period, forbad women to practise; thus, also, was it in Rome. However, -300 years before Christ, Agnodice—a young Athenian—dared to attend -in disguise the schools of medicine forbidden to her sex. Preserving -her incognito, when her education was finished she soon acquired a -lucrative practice; and eventually her case caused the law against -women to be revoked. - -In the Middle Ages, among Mohammedans, many women were skilled in -attending to the needs of their own sex; and among the Christians, -nuns as well as monks ministered to bodies as well as souls diseased, -practising both surgery and physic. In Italy, at Salerno, women -prepared drugs and cosmetics, practised among persons of both sexes, -took doctor’s degrees, wrote treatises on medical subjects, obtained -the royal authority to engage in the art, and composed poems in praise -of their science. At the University of Bologna, as late as 1760, -Anna Morandi Manzolini filled the chair of Anatomy; her reputation -was European, and her lecture-room was frequented by students of all -countries—so great was her skill in delicate dissections, and so -clearly did she demonstrate the wonders of the human form divine. Dr. -Maria delle Donne was professor of medicine and obstetrics in the same -college in 1799; and many were the lady graduates of the Universities -of Padua, Pavia and Ferrara, as well as Bologna. - -In France, the earliest official document extant relative to the -profession (dated 1311) forbids the practice of surgeons, or female -surgeons, who have failed to pass the required examinations; and -an edict of 1352 refers to female practitioners. In Spain, the -Universities of Cordova, Salamanca and Alcala bestowed doctor’s -degrees on |14| many women. In Germany, also, a number of the fair -sex successfully cultivated the science of medicine, and practised it, -in the last century and in the early part of this. In England, as has -already been seen, in early days women practised the healing arts. -Henry VIII. checked them for a time, but in his old age, changing his -mind on this, as on almost every other subject, gave them liberty to -minister to the outward and less serious ailments of his people. - -Crossing the Atlantic an entry is found, under the date of March, 1638, -which tells a tale. It is this: “Jane Hawkins, the wife of Richard -Hawkins, had liberty till the beginning of the third month, called May, -and the magistrates (if she did not depart before) to dispose of her: -and in the meantime she is not to meddle in surgery or phisick, drinks, -plaisters or oyles, nor to question matters of religion, except with -the elders for satisfaction [8].” But now woman is no longer regarded -as too good or too stupid to study medicine in America; in nearly -every State in the Union she has free access to Medical Colleges [9]. -The Council of the College of Physicians and Surgeons of Ontario -admit to registration and practice any person who complies with their -requirements, without regard to sex. And the Imperial Parliament, by an -Act passed in 1876, affirmed the principle that women are entitled to -become registered practitioners of medicine. - - - - -|15| - -CHAPTER II. - -FEES. - - -The Roman Law considered the services of an advocate and of a physician -as strictly honorific; and, as in the Roman age, practitioners in law -and medicine, were usually men of leisure and wealthy, who did not -practise for the sake of a livelihood, remuneration for their services -could not be recovered in the ordinary way. Although owing to the -Utopian ideas concerning the honour of a liberal profession then in -vogue it was considered that any mention of a “fee,” or a “salary,” by -that name would soil and disgrace the robe of a practitioner, still -it was an established fiction of the Civil Law that the promise of an -_honorarium_ always accompanied the employment of a professional man, -and that such promise created one of those obligations that might be -enforced by action [10]. The Common Law of England adopted the theory of -the Civil Law as to the high standing of the profession, but afforded -no remedy for the recovery of the charges. Surgeons and apothecaries -were enabled to recover by law remuneration for their services, but -a physician was presumed to attend his patient for an _honorarium_ -(something left to the honour of the patient to pay or not to pay), -and could not maintain an action for his fees until the passing of -the Medical Act, 1858, put an end to his anomalous position in this -money-making age, and gave him as free an entrance into the courts of -law to recover compensation for his work and labour, time and |16| -skill bestowed, as the worker in any other path of life. Before this a -physician could not recover even expenses out of pocket, such as those -incurred in travelling to visit a patient, unless there had been an -agreement specially made to that effect [11]. - -If a physician was a surgeon as well, and attended a case where the -advice of a physician and the aid of a surgeon were necessary, he -could recover the value of his services as a surgeon but not as a -physician [12]. - -In England the question sometimes arises, where the practitioner is -only a surgeon, whether he can charge for attendance as a physician or -as an apothecary. It has been held that typhus fever is not a disease -that belongs to a surgeon’s branch of medicine, and that he cannot -therefore recover for his attendance on a patient suffering under it. -So, too, with regard to consumption and dropsy, though, in the latter -case, he may recover for any work done for the patient specifically -within his practise, such as puncturation, scarification, bandaging and -friction [13]. - -At one time it was considered that an apothecary was not entitled to -charges for his attendances, but only for his medicine: then the law -decided that he might charge for either attendances or medicines, but -not for both. Shortly afterwards Tenterden held that one might recover -for attendance (the charge being reasonable), as well as for medicine. -After that full justice was done to this branch of the profession, and -it was decided that there was no rule of law, and there certainly is -none of morals, to prevent an apothecary from making distinct charges -for |17| attendances and medicines; but if he charges very high for -his drugs the jury may think the attendances ought not to be paid for -as well [14]. - -In Scotland, also, at one time physicians’ fees were regarded as -honoraries, and not recoverable by action except under a special -contract [15]. Neither in the United States nor in the Colonies have -these distinctions been made between the different branches of the -profession, nor has the principle been adopted that the profession of -a physician is a merely honorary one, and that his services cannot be -charged for [16]. - -In England every person registered according to the Medical Act, -1858, and in Ontario those registered under the Provincial Act, can -practise medicine or surgery, or medicine and surgery; and can recover -in any court of law, with full costs of suit, reasonable charges for -professional aid, advice, and visits, and the costs of any medicine -or other medical and surgical appliances rendered or supplied to his -patient; but no person is entitled to recover any such charges in -any court of law unless he can prove upon the trial that he is so -registered. Registration has now become a part of the plaintiff’s -title to recover, which it is imperative upon him to prove. A copy of -the medical register for the time being, purporting to be printed and -published under the direction of the General Council, is evidence in -all courts that the persons therein specified are registered according -to the provisions of the Medical Act; and the absence of the name of -any person is evidence, until the contrary be made to appear, that -such person is not so registered; and the contrary may be shown by a -certified copy, under the hand |18| of the registrar, of the entry -of the name of such person on the register [17]. Similar rules are in -force in the various States where Medical Boards have been constituted -by legislative authorities for the purpose of examining and licensing -practitioners, such as Alabama, Delaware, Florida, Georgia, Louisiana, -Maine, Minnesota, New York, Ohio, South Carolina and Wisconsin. - -Subject to the various statutory enactments, every physician or -surgeon, or any one who chooses to act as such, is entitled to a -reasonable reward for his services and for his medicines. If there was -no express promise to pay when the services were requested, the law -implies one: the broad principle being, that when a person has bestowed -his skill and labor for the benefit of another, at his request, and -no agreement is made in respect to them, the law raises an implied -promise to pay such compensation as the person performing the service -deserved to have; and when there is no statutory or other restraint -upon the remedy, an action lies on such promise [18]. The amount, unless -settled by law, is a question for the jury, and in settling that, the -eminence of the practitioner, the wealth of the patient, the delicacy -and difficulty of the operation, as well as the time and care expended, -are to be considered [19]. - -The law, as a rule, sets no limitation to fees, provided they be -reasonable. Within this rule a practitioner is allowed discretionary -powers and may charge more or less according to his own estimate of -the value of his services. No one will pretend to assert that all -services are of equal value, and no one will claim that those who -can |19| render them the most skilfully should receive only the -same reward as those who can render them the least so. A medical man -of great eminence may be considered reasonably entitled to a larger -recompense than one who has not equal practice, after it has become -publicly understood that he expects a larger fee, inasmuch as the party -applying to him must be taken to have employed him with a knowledge -of this circumstance [20]. But doctors must not be unreasonable in -their charges; as Lord Kenyon remarked, “Though professional men are -entitled to a fair and liberal compensation for their assistance, there -are certain claims which they affect to set up, which if unreasonable -or improper, it is for the jury to control” [21]. That a patient is a -millionaire does not justify an extortionate charge. The French rule -is to consider the gravity of the disease as well as the fortune and -position of the patient in settling the remuneration of a physician [22]. - -The existence of an epidemic does not authorise the charging of -exorbitant fees [23]. - -In some ages and countries the fees payable to medical practitioners -have been fixed by law. In Persia, for instance, in ancient times the -law said that “a physician shall treat a priest for a pious blessing, -or a spell; the master of a house for a small draught animal; the lord -of a district for a team of four oxen; and if he cure the mistress of -a house a female ass shall be his fee.” (Vendidad Farg. VII.) To take -another instance, the medical men in attendance upon the old princes -of Wales had their fees settled; for curing a slight wound, a surgeon -received for payment the clothes of the injured person which had been -stained with blood; |20| and for curing a dangerous wound he had, in -addition to the bloody clothing, board and lodging while in attendance, -and 180 pence. In Egypt, according to Herodotus, practitioners were -paid out of the public treasury, although they might also receive fees -from their patients. - -A medical man can also recover for the services rendered by his -assistants or students; and that even though the assistant is -unregistered [24]. It is not necessary that there should be any agreed -specified price, he will be allowed what is usual and reasonable [25]. - -The right of a medical man to recover his charges for professional -services does not depend upon his effecting a cure, or on his services -being successful, unless there is a special agreement to that effect. -It does not depend upon the fortune of the case whether it be good -or bad, but upon the skill, diligence and attention bestowed. For, -as a general rule, a physician does not guarantee the success of his -treatment; he knows that that depends upon a higher power. Still, some -good must have resulted from his efforts. The rule appears to be that -if there has been no beneficial service there shall be no pay; but if -some benefit has been derived, though not to the extent expected, this -shall go to the amount of the plaintiff’s demand, leaving the defendant -to his action for negligence [26]. The practitioner must be prepared to -show that his work was properly done, if that be disputed, in order -to prove that he is entitled to his reward [27]. Where the surgical -implements employed in amputating an arm were a large butcher knife and -a carpenter’s sash-saw, it was held that the Court rightly charged the -jury, that if the |21| operation was of service, and the patient did -well and recovered, the surgeon was entitled to compensation, though it -was not performed with the highest degree of skill, or might have been -performed more skilfully by others [28]. - -If a surgeon has performed an operation which might have been useful -but has merely failed in the event, he is nevertheless, entitled -to charge; but, if it could not have been useful in any event, he -will have no claim on the patient [29]. A medical man who has made a -patient undergo a course of treatment which plainly could be of no -service, cannot make it a subject of charge; but an apothecary who has -simply administered medicines under the direction of a physician may -recover for the same, however improper they may have been [30]. If the -physician has employed the ordinary degree of skill required of one in -his profession, and has applied remedies fitted to the complaint and -calculated to do good in general, he is entitled to his fees, although -he may have failed in this particular instance, such failure being then -attributable to some vice or peculiarity in the constitution of the -patient, for which the medical man is not responsible [31]. - -It is the duty of a physician who is attending a patient infected -with a contagious disease, when called upon to attend others not so -infected, to take all such precautionary means experience has proved to -be necessary to prevent its communication to them. When a physician who -was told by a patient not to attend any infected with small-pox or his -services would be dispensed with, failed to say that he was attending -such a patient, and |22| promised not to do so, but continued to -attend, and did by want of proper care communicate small-pox to the -plaintiff and his family, it was held that these facts were proper -evidence to go to the jury in reduction of damages in an action for -his account, and that the physician was responsible in damages for the -suffering, loss of time and damage to which the plaintiff may have been -subjected. If a physician by communicating an infectious disease has -rendered a prolonged attendance necessary, thereby increasing his bill, -he cannot recover for such additional services necessitated by his own -want of care [32]. This rule will apply with equal force to puerperal -fever [33]. - -In the case of vaccination, the physician, while he does not guarantee -the specific value of the vaccine virus, yet guarantees its freshness; -so that if he inoculate a patient with virus in an altered state, -constituting as it then would mere putrid animal matter, and erysipelas -or any injury to any limb necessitating amputation should arise, he -will undoubtedly be held responsible for the suffering, loss of time, -and permanent injury to the patient [34]. Long since Lord Kenyon was of -the opinion that if a surgeon was sent for to extract a thorn, which -might be pulled out with a pair of nippers, and through his misconduct -it became necessary to amputate the limb, the surgeon could not come -into a court of justice to recover fees for the cure of the wound which -he himself had caused [35]. - -The physician when sending in his bill should be specific in his -charges and not general; he should give the number of visits and dates. -In one case a lump charge of “$13 for medicine and attendance on one -of the general’s daughters |23| in curing the whooping cough,” being -objected to by the valiant officer, was held by the Court to be too -loose to sustain an action [36]. Where a practitioner brought an action -for a bill consisting of a great number of items, and gave evidence as -to some of them only, and the jury gave a verdict for the whole amount -of the bill, the Court refused to interfere and grant a new trial -because every item was not proved [37]. Where a medical man delivered -his bill to a patient without a specific charge, leaving a blank for -his attendance, the Court inferred that he considered his demand in -the light of a “_quiddam honorarium_,” (this was before the Medical -Act), and intended to leave it to the generosity of the patient, and -the latter having paid into court a certain amount, the Court held -the surgeon was bound by the amount so paid and could not recover any -more [38]. As a rule, however, if a doctor’s bill is not paid when -presented he is not limited by it to the amount of his claim, if he -can show that his services were of greater value [39]. When witnesses -are called to speak as to the value of the practitioner’s services the -Courts generally incline towards the lowest estimate [40]. - -The number of visits required must depend on each particular case, and -the physician is deemed the best and proper judge of the necessity -of frequent visits; and in the absence of proof to the contrary, the -Court will presume that all the professional visits made were deemed -necessary and were properly made [41]. There must not be too many -_consultations_; and the physician called in for consultation or to -perform an operation may recover his fees from the |24| patient, -notwithstanding that the attending practitioner summoned him for his -own benefit and had arranged with the patient that he himself would -pay [42]. - -Where a medical man has attended as a friend, he cannot charge for -his visits. This was held in one case where it was proved that -the practitioner had attended the patient as a friend, upon the -understanding that he was to have refreshments and dinners free -of charge; and in another case, where a medical man had attended -professionally, for several years, a lady with whom he was on terms of -intimacy (but received no fees, except once, when he had prescribed -for her servant). The day before her death this lady had written to -her executors, asking them to remunerate the doctor in a handsome -manner, and moreover in her will she gave him a legacy of £3,000 and a -reversionary interest in £6000 more. It was proved that he had attended -others without having taken fees or sent in bills. It was held that -his services had been tendered as for a friend, and accepted as a -friends, and his demand as a debt against the assets of the lady was -rejected [43]. One would have thought that the physician in this latter -case should have been satisfied. - -Where a tariff of fees has been prepared, and agreed to by the -physicians in any locality, they are bound by it legally as far -as the public is concerned, morally as far as they themselves are -concerned [44]. It is no part of the physicians business to supply the -patient with drugs; if he does so he has a right to be reimbursed -therefor [45]. |25| - -If a physician enters into a special contract to perform a cure he -will be held strictly to its terms, nor will he be allowed to plead -circumstances, which, under the general law of professional obligation, -might fairly exonerate him from blame, for failing of success in the -treatment of his patient. To promise an absolute cure is to assume -arrogantly the possession of powers never delegated to man; only a weak -and vapid intellect will commit so egregious a blunder. Yet, if a man -choose to do it he may, and having entered into an _express_ contract -he will be held liable for its fulfilment. For it is his own fault if -he undertake a thing above his strength. If the agreement is, no cure, -no pay: he cannot even recover for medicines supplied if the cure is -not effected. At least, so it was held at Vermont. Contracts to receive -a certain sum contingent upon the performance of a cure have always -been considered as professionally immoral, and in the civil law were -repudiated as against public policy [46]. - -The physician is always allowed discretionary powers over the patient -entrusted to his care in modes of treatment, so as to be able to alter -them according to the varying necessities of the case. Unless such -change of treatment involves a risk of life or consequences of which he -is unwilling to assume the responsibility, he is not under obligation -to give notice or obtain permission before making it. Particularly is -this the case where the patient is not at home or among friends or -relatives, but is in some degree in his custody and under his exclusive -supervision, as well as care. In such circumstances he is authorised -to perform operations, or change his treatment, or enforce discipline -essential to its fulfilment, without first consulting or obtaining -permission from friends or guardians at a distance, since delay might -involve a greater risk to the health |26| and possibly the life of -the patient than would a necessitated operation; and of such things he -alone is the proper, as he alone can be the best, judge. He may recover -his fees for such operation or change of treatment without proving -that it was necessary or proper, or that before he performed it he -gave notice to the party who had to pay, or that it would have been -dangerous to have waited until such notice had been given. The burden -of proving unskilfulness or carelessness in the operation lies upon the -party objecting to it [47]. - -When a medical man is called as a witness before a court, to testify as -to facts within his knowledge, he must attend and give evidence upon -payment of the same fees as other witnesses are entitled to; unless it -is otherwise provided by statute. - -Where a statute provides that a medical man should be paid a certain -witness fee, he is entitled to that fee although he be not called to -give professional evidence, and it is not necessary to prove that -he is in practice [48]. A witness should be paid his fees when he is -subpœnaed; but even if he attends he can refuse to give evidence until -he is paid, unless he takes the oath before making the objection [49]. A -subpœna should be served a reasonable time before the trial, to enable -a witness to put his affairs in such order that his attendance on the -court may be as little detrimental as possible to his interests [50]. - -Where a medical man is summoned to attend a coroner’s inquest, unless -the statute law is clearly to the contrary, |27| he is only entitled -to be paid for each days attendance, not for each body on which the -inquest was held [51]. - -Under the Ontario Act, R. S. cap. 79, a coroner, if he finds that the -deceased was attended during his last illness, or at his death, by a -duly qualified medical man, may summon that medical man to attend the -inquest; if he finds that he was not so attended, he may summons any -legally qualified neighbouring practitioner, and may direct him to -hold a post-mortem examination; but a second practitioner will not be -entitled to any fees, unless a majority of the jury have, in writing, -asked him to be called [52]. The fees are, for attendance without -_post-mortem_ $5, if with _post-mortem_, without an analysis of the -contents of the stomach or intestines, $10; if with such analysis, $20; -together with a mileage each way of twenty cents. If the practitioner -when duly summoned fails to attend, without sufficient reason, he is -liable to a penalty of $40 [53]. - -Is an expert witness entitled to receive greater compensation than -an ordinary witness? or can he be compelled to give a professional -opinion without being paid for it? The States of Iowa, North Carolina -and Rhode Island have answered these questions by statutes which say -such witnesses shall be entitled to extra compensation to be fixed -by the court, in its discretion: while Indiana says experts may be -compelled to appear and testify to opinions without payment or tender -of compensation other than the _per diem_ and mileage allowed by law to -other witnesses [54]. - -The subject does not appear to have been very much considered in -England. In a case, at _Nisi Prius_, Lord |28| Campbell declared that -an expert was not bound to attend upon being served with a subpœna, -and that he ought not to be subpœnaed; that he could not be compelled -to attend to speak merely to matters of opinion [55]. And Mr. Justice -Maule, where an expert demanded additional compensation, said there -was a distinction between a witness to facts and a witness selected by -a party to give his opinion on a subject with which he is peculiarly -conversant from his employment in life. The former is bound as a matter -of public duty to testify as to all facts within his knowledge, the -latter is under no such obligation, and the party who selects him must -pay him for his time before he will be compelled to give evidence [56]. - -Worden, J., of the Supreme Court of Indiana, in considering the -question, in a case that came up prior to the statute above referred -to, reviewed most of the American decisions and the opinions of -the text writers, and concluded “that physicians and surgeons, -whose opinions are valuable to them as a source of their income and -livelihood, cannot be compelled to perform service by giving such -opinions in a court of justice without payment.” The Court further -said, “It would seem, on general principles, that the knowledge and -learning of a physician should be regarded as his property, which -ought not to be extorted from him in the form of opinions without just -compensation.” “If the professional services of a lawyer cannot be -required in a civil or criminal case without compensation, how can -the professional services of a physician be thus required? Is not his -medical knowledge his capital stock? Are his professional services -more at the mercy of the public than the services of a lawyer? When -a physician testifies as an expert by giving his opinion, he is -performing a strictly |29| professional service. * * * The position -of a medical witness testifying as an expert is much more like that -of a lawyer than that of an ordinary witness testifying to facts. The -purpose of this service is not to prove facts in the cause, but to -aid the Court or Jury in arriving at a proper conclusion from facts -otherwise proved” [57]. In an earlier case (in 1854), in Massachusetts, -the Court said, “to compel a person to attend because he is -accomplished in a particular science, art or profession, would subject -the same individual to be called upon in every case in which any -question in his department of knowledge is to be solved. Thus, the most -eminent physician might be compelled, merely for the ordinary witness -fees, to attend from the remotest part of the district, and give his -opinion in every trial in which a medical question should arise. This -is so unreasonable that nothing but necessity can justify it” [58]. - -On a trial for murder the prosecution had procured the attendance of -Dr. Hammond to testify professionally, and had agreed to give him -$500 as his fee. This fee was complained of as an irregularity, but -the Court in delivering judgment remarked, “The district attorney, -it is true, might have required the attendance of Dr. H. on subpœna, -but that would not have sufficed to qualify him as an expert with -clearness and certainty upon the questions involved. He would have met -the requirements of the subpœna if he had appeared in court when he -was required to testify and given impromptu answers to such questions -as might have been put to him. He could not have been required, under -process of subpœna, to examine the case, and to have used his skill -and knowledge to enable him to give an opinion upon any points of the -case, nor to have attended during the whole trial and attentively -considered and carefully |30| heard all the testimony given on both -sides, in order to qualify him to give a deliberate opinion upon such -testimony, as an expert, in respect to the question of the sanity of -the prisoner;” and held “that there was no irregularity in the payment -of such a fee” [59]. - -Such text writers of high repute as Taylor, Phillips, Redfield and -Ordronaux, all agree that an expert cannot be compelled to give -professional opinions without proper remuneration. The last named -writer says, “Where a subpœna is served upon an expert he must obey it, -if within the range of physical possibility. But once on the stand as a -skilled witness his obligation to the public ceases, and he stands in -the position of any professional man consulted in relation to a subject -upon which his opinion is sought. He cannot be compelled to bestow -his skill and professional experience gratuitously; whoever calls for -an opinion from him in chief must pay him, and the expert may decline -to answer until the party calling him has paid. When he has given his -evidence he cannot decline repeating it, or explaining it. A similar -rule will, by parity of reasoning, apply to personal services demanded -from the expert, as well as to opinions asked” [60]. - -On the other hand, the Supreme Court of Alabama, in 1875 [61], confirmed -a fine imposed upon a physician for refusing to state the nature and -character of a wound received by a man and its probable effect, upon -the ground that he had not been remunerated for his professional -opinion, nor had compensation for it been promised or secured. And -the Court of Appeals in Texas, in 1879, held, that the court could -compel a physician to testify as to the |31| result of a post-mortem -examination; adding, that a medical expert could not be compelled to -make a post-mortem examination unless paid for it, but an examination -having already been made by him he could be obliged to disclose the -results thereof [62]. - -The result of the authorities seems to be that, without the aid of -a statute, an expert cannot be compelled to bestow his skill and -professional experience gratuitously upon any party, for his skill and -experience are his individual capital and property. - - - - -|32| - -CHAPTER III. - -WHO SHOULD PAY THE DOCTOR. - - -If Smith says to Brown, a medical man, “Attend upon Robinson, and if -he does not pay you I will;” that being a promise to answer for a debt -of Robinson’s, for which he is also liable, the guarantee is only a -collateral undertaking, and, under the Statute of Frauds, must be in -writing and signed by Smith, or some other person thereunto by him -lawfully authorised, in order to be binding upon him. But if Smith says -to Dr. Brown, absolutely and unqualifiedly, “Attend upon Robinson, -and charge your bill to me,” or “I will pay you for your attendance -upon Robinson;” then the whole credit being given to Smith, no written -agreement is necessary to enable the doctor to recover the amount of -his account from him, since it is absolutely the debt of Smith [63]. - -Where a person calls at the office of a physician, and, he being -absent, the visitor leaves his business card with these words written -on it, “Call on Mrs. Jones, at No. 769 High Street,” handing it to the -clerk in attendance, with the request that he would give it to the -doctor and tell him to go as soon as possible; this caller becomes -liable to pay the doctor’s bill for attendance upon Mrs. Jones in -pursuance of such message. Yet Mrs. Jones, if a widow, may also be -liable; for one who acquiesces in the employment of a physician, and -implies, by his or her conduct, that the doctor is attending at his or -her request, is responsible for |33| the value of his services. If -Mrs. Jones is living with her husband, or, without her fault, away from -him, the doctor has still another string to his bow, and may recover -the amount of his bill from Mr. Jones; for the rule is, that a husband -must pay his wife’s doctor’s bills. Of course the doctor cannot make -all three pay [64]. - -Long since, Park, J., was clearly of the opinion that if a mere -stranger directed a surgeon to attend a poor man, such person was -clearly liable to pay the surgeon [65]. Yet, in some cases in the United -States, it has been held that the man who merely calls the doctor is -not bound to pay him. When, for instance, in Pennsylvania, a son of -full age, when living with his father, fell sick, and the father went -for the doctor, urging him to visit his son. Afterwards the physician -sued the parent. The Court said this was wrong, that he should have -sued the son, as the father went as a messenger only, that the son, -who had the benefit of the services, was the responsible person; and -remarked that it was clear that had the defendant been a stranger, -however urgent he may have been and whatever opinions the physician -may have formed as to his liability, he would not have been chargeable -without an express promise to pay, as, for instance, in the case of an -inn-keeper or any other individual whose guest may receive the aid of -medical service. A different principle, the Court considered, would be -very pernicious, as but very few would be willing to run the risk of -calling in the aid of a physician where the patient was a stranger or -of doubtful ability to pay. This was in 1835 [66]. And, in Vermont, one -brother took another, who was insane, to a private lunatic asylum and -asked that he (the insane one), might be taken in and |34| cared for. -This was done. In course of time the doctor sued the sane one for his -bill, but the Court would not aid him in the matter, saying, “He is not -liable unless he promised to pay” [67]. - -In the case of Mr. Dodge, above referred to, the Court said, “He might -very readily have screened himself from all liability, by simply -writing the memorandum on a blank card, or by adding to that which he -wrote on his own card something that would have apprised the doctor of -the fact that he acted in the matter for Mrs. Jones, as her agent.” - -The reporter did not approve of this decision, and so appended the -following graphic note: “Let us see how this thing works. We will -take as an illustration an almost every-day occurrence arising in the -country. A. B. is taken suddenly and seriously ill in the night time, -and sends to his neighbour, C. D. living in the next house to his, to -have him go after the doctor as soon as he can, for he is in great -pain and distress. C. D. jumps out of bed without hesitation, and -hastily dresses himself, and goes out to his barn and takes a horse -from the stable, and not waiting to put on a saddle or bridle, jumps -on to the horse with the halter only, puts him at full speed for the -doctor’s office, some two or three miles distant. On arriving there -he finds the doctor absent from home, but his clerk is there, and C. -D. at once says, ‘Tell the doctor to call on A. B. who has been taken -suddenly sick; tell him to come as soon as possible.’ In accordance -with this message the doctor calls upon A. B., and prescribes for and -attends him professionally for several days. After a reasonable time -the doctor sends in his bill to A. B. and it not being paid as soon -as the doctor desires, he calls on C. D. and requests him to pay the -bill. C. D. with perfect astonishment, asks why he is to pay. |35| The -doctor informs him that he made himself liable to pay the bill because, -when he delivered the message, he did not tell the clerk that he came -for the doctor by the request of A. B. nor that he acted as agent of -A. B. in delivering his message. Well, says C. D. the fact was I did -go at the request of A. B. and merely acted as his agent in delivering -the message, and I will swear to these facts if necessary. The doctor -insists that it will do him no good if he should give such testimony, -for the law is settled on that point, as just such a case has recently -been decided in New York under just such a state of facts, where the -jury, in the justice court, found a verdict for the doctor for the -amount of his bill, and, on appeal by the defendant to the general -term of the New York Common Pleas, that court unanimously sustained -the verdict of the jury, and affirmed the judgment of the court below. -Well, says C. D. ‘If that is the law I think I will wait awhile before -I go after a doctor again as an act of neighbourly kindness.’” This -case was decided as late as March, 1873. - -A wife has implied authority to bind her husband for reasonable expense -incurred in obtaining medicines and medical attendance during illness; -but this implied authority is put an end to if she commits adultery -while living apart from her husband, and there has been no subsequent -condonation; or, if she leaves her husband’s home of her own accord -and without sufficient reason, and the fact has become notorious, or -the husband has given sufficient notice that he will no longer be -responsible for any debts that she may incur [68]. If a husband turn an -innocent wife out of doors without the means of obtaining necessaries, -it is a presumption of law, which cannot be rebutted by evidence, that -she was turned out with the authority of her husband to pledge his -credit for necessaries, and in such a case |36| medical attendance -will be considered as one of the primary necessaries [69]. A married -woman’s misconduct does not exonerate the husband from paying a doctor -whom he requests to attend her [70]. - -Although the law requires the husband to furnish the wife with all -necessaries suitable to his condition in life, including medical -attendance in case of sickness, still it gives him the right to procure -these necessaries himself and to decide from whom and from what place -they are to come. If a physician attends a wife whom he knows to be -living separate and apart from her husband, he ought to enquire whether -she has good cause for so doing; for if she has not he cannot make -the husband pay the bill; and it has been held that it devolves upon -the doctor to show that there was sufficient cause for the wife’s -separation [71]. The employment of a physician by a husband to attend -his sick wife, presumably continues throughout the illness; and the -mere fact that the wife is removed, with the husband’s consent, from -his home to her father’s, will not enable him to resist payment of the -doctor’s bill for visits paid to her at the father’s [72]. - -Notwithstanding the law’s desire not to favour any particular school, -a quack’s bill was thrown out where the services were rendered without -the husband’s assent. This was done in a case where a doctor was in the -habit of putting a woman into a mesmeric sleep, she thereupon became a -clairvoyant and prescribed the medicines which the doctor furnished, -and for these he sued. The Judge said:—“The law does not recognize -the dreams, visions or revelations of a woman in mesmeric sleep as -necessaries for |37| a wife for which the husband, without his consent, -can be made to pay. These are fancy articles which those who have money -of their own to dispose of may purchase if they think proper, but they -are not necessaries known to the law for which the wife can pledge the -credit of the absent husband” [73]. - -In England, it was, until 1869, considered that a parent’s duty to -furnish necessaries for an infant child was a moral and not a legal -one, so that he was not liable to pay for medicines or medical aid -furnished to his child without some proof of a contract on his part -either expressed or implied. And this still is the view where the child -is over fourteen. The rule of law varies in the different States of -the Union. In most of those in which the question has come before the -courts the legal liability of the parent for necessaries furnished -to the infant is asserted, unless they are otherwise supplied by the -father; and it is put upon the ground that the moral obligation is a -legal one, and some of the courts have declared this quite strongly. -In other States the old English rule has been held to be law, and -agency and authority have been declared to be the only ground of such -liability. The authority of the infant to bind the parent for medical -aid supplied him will be inferred from very slight evidence [74]. But a -contract to pay will not be implied when the infant has been allowed a -sufficiently reasonable sum for his expenses [75]. Where the services -have been rendered with the parent’s knowledge and consent, he will -generally have to pay for them. A boy left home against his father’s -will, and refused to return at his parent’s command. Being seized with -a mortal illness he did at last come back. His father went with him to -a |38| physician to obtain medical advice, and the doctor afterwards -visited him professionally at his father’s house. No express promise -to pay was proved, nor had the father said he would not pay. The Court -held the father liable to pay the doctor’s bill [76]. And in an English -case, where a father had several of his children living at a distance -from his own house under the protection of servants, it was held that -if an accident happened to one of the children he was liable to pay for -the medical attendance on such child, although he might not know the -surgeon called in, and although the accident might have been received -through the carelessness of a servant [77]. - -By a recent English statute [78], when any parent shall wilfully neglect -to provide adequate food, clothing, medical aid, or lodging for his -child, in his custody, under the age of fourteen, whereby the child’s -health shall have been, or shall be likely to be, seriously injured, he -shall be guilty of an indictable offence punishable by imprisonment. -Charles Downes was the two-year-old child of a member of the sect -of Peculiar People. These people never call in medical aid or give -medicines: to do so would be contrary to their religious opinions; but -if any is sick they call in the elders of the church, who pray over -him, anointing him with oil in the name of the Lord; then they hope -for a cure, as they have thus literally complied with the directions -in the 14th and 15th verses of the 5th chapter of the Epistle of St. -James. This child was ill for months; the usual course was pursued by -his father; no medical aid was obtained, although easily obtainable. -The illness was misunderstood, and, although he was taken care of and -well supplied with food, the child died. The father was indicted for -manslaughter, and the |39| jury found that the death was caused by -the neglect to obtain medical assistance, that the father _bona fide_ -(though erroneously) believed that medical aid was not required, and -that it was wrong to use it. The Judge entered a verdict of guilty, and -the Court held—under this statute—that a positive duty was imposed upon -the father to provide adequate medical aid when necessary, whatever -his conscientious scruples might be, and that that duty having been -wilfully neglected by the prisoner, and death having ensued from that -neglect, he was properly convicted of manslaughter [79]. - -It had been held by Pigott, B., in a case against these same Peculiar -People, and also by Willis, J., that, at common law, there was no legal -duty upon a father to employ a physician for his sick child [80]. - -It is not enough to shew neglect of reasonable means for preserving -or prolonging the child’s life, to convict of manslaughter, it must -be shewn that the neglect had the effect of shortening life. It will -not do merely to prove that proper medical aid might have saved or -prolonged life and would have increased the chance of recovery, but -that it might have been of no avail [81]. In this case the father, -perhaps, might have been convicted of neglect of duty as a parent, -under the statute (per Stephen, J.). - -Medicines and medical aid are necessaries for which an infant may -legally contract, and for which he can render himself liable. In -Massachusetts, it was held that he would not be liable merely because -his father was poor and unable to pay [82]. |40| - -A master is not bound to provide medical assistance for his servant, -but the obligation, if it exists at all, must arise from contract; nor -will such a contract be implied simply because the servant is living -under the master’s roof, nor because the illness of the servant has -arisen from an accident met with in the master’s service [83]. But -where a servant left in charge of her master’s children was made ill -by suckling one of the children, and called in a medical man to attend -her, with the knowledge and without the disapprobation of her mistress, -it was decided that the doctor could make the father and master -pay [84]. And a master is bound to provide an apprentice with proper -medicines and medical attendance [85]. - -In England, when a pauper meets with an accident, the parish where -it occurs is usually liable for the surgeon’s bill. If, however, the -illness of the pauper arises from any other cause than accident or -sudden calamity, the parish in which he is settled is under legal -liability to supply him with medical aid, although he may be residing -in another parish. But all these questions with regard to paupers are -determined according to the poor laws of the different countries [86]. - -It has frequently happened that when a railway passenger or employee -has been injured by a collision or accident, and some railway official -has called in a doctor, the company has afterwards refused to pay -the bill; and the courts have declined to make them do so, unless it -be shown that the agent or servant who summoned the medical man had -authority to do so. It has been held that neither a guard, nor the -superintendent of a station, nor the engineer of the train in which -the accident happened, had any implied authority, as incidental |41| -to their positions, to render their companies liable for medical -services so rendered [87]. The Court of Exchequer said, “It is not to -be supposed that the result of their decision will be prejudicial -to railway travellers who may happen to be injured. It will rarely -occur that the surgeon will not have a remedy against his patient, -who, if he be rich, must at all events pay; and if poor, the sufferer -will be entitled to a compensation from the company, if they by their -servants have been guilty of a breach of duty, out of which he will be -able to pay, for the surgeon’s bill is always allowed for in damages. -There will, therefore, be little mischief to the interests of the -passengers, little to the benevolent surgeons who give their services.” -But, in England, it has been decided that the general manager of a -railway company has, as incidental to his employment, authority to -bind his company for medical services bestowed upon one injured on his -railway. In Illinois, a similar decision was given as to a general -superintendent, although in New York judgment was given the other -way [88]. - -If an accident happen to a stage coach by which a passenger’s leg is -broken, or his human form divine is otherwise injured, the coachman has -no authority to bind his master by a contract with a surgeon to attend -to the injury; nor if a lamp-lighter, by neglect, burn any person, has -he, or any officers of the gas company, power to bind the company by a -contract for the cure of the injured person [89]. If ordinary employees -had such authority, then every servant who, by his negligence or -misconduct, had caused injury to an individual, would have an implied -authority to employ, on behalf and at the expense of his employer, any -person he thought fit to remedy the mischief. - - - - -|42| - -CHAPTER IV. - -WHO MAY PRACTISE. - - -The law has nothing to do with the merits of particular systems or -schools of medicine. Their relative merits may become the subject of -inquiry when the skill or ability of a practitioner, in any given -case, is to be passed upon as a matter of fact. But the law does not -and cannot supply any positive rules for the interpretation of medical -science. It is not one of those certain or exact sciences in which -truths become established and fixed, but it is essentially progressive -in its nature. No one system of practice has been uniformly followed, -but physicians, from the days of Hippocrates, have been divided into -opposing sects and schools. The sects of the dogmatists and the -empirics divided the ancient world for centuries until the rise of the -methodics, who in their turn gave way to innumerable sects. Theories -of practice believed to be infallible in one age have been utterly -rejected in another. For thirteen centuries Europe yielded to the -authority of Galen. He was implicitly followed, his practice strictly -pursued. Everything that seemed to conflict with his precepts was -rejected; and yet, in the revolutions of medical opinion, the works of -this undoubtedly great man were publicly burned by Paracelsus and his -disciples; and for centuries following the medical world was divided -between the Galenists and the chemists, until a complete ascendancy -over both was obtained by the vitalists. This state of things has been -occasioned by the circumstance that medical practitioners have often -been more given to the formation of theories upon the nature of |43| -disease and the mode of its treatment, than to that careful observation -and patient accumulation of facts by which, in other sciences, the -phenomena of nature have been unravelled. * * * It is not to be -overlooked that as an art it has been characterised in a greater degree -by fluctuations of opinion as to its principles and the mode of its -practice than perhaps any other pursuit. That it has been distinguished -by the constant promulgation and explosion of theories. That it has -alternated between the advancement of new doctrines and the revival -of old ones; and that its professors in every age have been noted for -the tenacity with which they have clung to opinions, and the unanimity -with which they have resisted the introduction of valuable discoveries. -They still continue to disagree in respect to the treatment of diseases -as old as the human race; and at the present day * * * a radical and -fundamental difference divides the allopathists from the followers -of Hahnemann, to say nothing of those who believe in the sovereign -instrumentality. * * * The axiom that doctors differ is as true now as -ever it was [90]. Thus spake Daly, J.; the reporter observes in a note: -“It may, perhaps, be safely questioned whether the sister sciences of -law and theology present any such unity or certainty of opinion as -might enable them to arraign the medical profession.” - -In Great Britain and Ireland, since the passing of the Medical Act -of 1858, every one registered under the provisions of that Act is -entitled, according to his qualification, to practise medicine or -surgery, or both (as the case may be), in any part of Her Majesty’s -Dominions, and to recover on any court of law (should any patient -neglect to pay) his reasonable charges for professional aid, advice and -visits, and the costs of any medicine, or other medical or surgical -appliances rendered or supplied by |44| him to his patient; but any -one not so registered cannot recover any such charges in any court of -law. Proof of registration is absolutely necessary for a recovery; -but it will suffice if the registration has taken place before the -trial [91]. - -And as to who may be registered; the Act says any one may be who is a -fellow, member, licentiate, or extra licentiate, of the Royal College -of Physicians of London, or of the Royal College of Physicians of -Edinburgh, or of the King and Queen’s College of Ireland; or fellow, -member, or licentiate in midwifery, of the Royal College of Surgeons -of England, or fellow or licentiate of the Royal College of Surgeons -of Edinburgh, or of the Faculty of Physicians and Surgeons of Glasgow, -or of the Society of Apothecaries, London, or of the Apothecaries -Hall, Dublin; or doctor, bachelor, or licentiate of medicine, of any -university of the United Kingdom, or licentiate in surgery of any -university in Ireland; or doctor of medicine by doctorate granted prior -to August, 1858, by the Archbishop of Canterbury; or doctor of medicine -of any foreign or colonial college, after examination, or who satisfies -the Council of Education and Registration that there is sufficient -reason for admitting him to be registered [92]. - -In France, the medical profession is divided into two grades; in the -higher grade are all doctors of medicine of the universities; those -in the lower grade are _officiers de santé_. In Germany, the right -to practise is conferred by a state licence granted on passing the -_staats-examen_: the degree of doctor of medicine is almost always -taken at some university after obtaining the state license. In Austria, -the |45| right to practise is carried by the degree of doctor of -medicine obtained from a university [93]. - -The legislature of every colony of Great Britain has full power to -make laws for the purpose of enforcing the registration within its -jurisdiction of medical practitioners, including those registered under -the Imperial Act. - -In Ontario, the medical profession is incorporated under the name and -style of “The College of Physicians and Surgeons of Ontario,” and -every person registered under the provisions of the Ontario Medical -Act [94] is a member of the college. There is a “Council,” in part -appointed by certain educational institutions, in part elected by -practitioners. This council fixes the curriculum of studies, appoints -examiners, and arranges the examinations of those desirous of admission -to practise; it also arranges for the registration of those who pass -the examinations, or had certain qualifications before July, 1870. -Every one who passes the examinations and has complied with the rules -and regulations of the council, and paid his fees, is entitled to -registration, and by virtue thereof to practise medicine, surgery and -midwifery in the Province. If registration is not granted to one he may -compel it by a writ of mandamus [95]. - -Registration is essential to entitle a practitioner to recover -any charges for medical or surgical advice, or for attendance, or -for performance of any operation, or for any medicine he may have -prescribed or supplied. (This last clause does not apply to any -licensed chemist or druggist.) And if any one unregistered, for hire, -gain or hope of reward, practises or professes to practise medicine, -surgery or midwifery, or advertises to give advice therein, he is -liable |46| to a fine of from $25 to $100. And any one not registered -who takes or uses any name, title, addition or description implying -or calculated to lead people to infer that he is registered, or that -he is recognized by law as a physician, surgeon, accoucheur, or a -licentiate in medicine, surgery or midwifery, is liable to the same -penalty. Any person who wilfully or falsely pretends to be a physician, -doctor of medicine, surgeon, or general practitioner, or assumes any -title, addition or description, other than he actually possesses and -is legally entitled to, is liable to a fine of from $10 to $50. But it -is not punishable to practise for love or charity, and any one who has -the degree of doctor of medicine may place the letters “M.D.” after his -name, even though he is not a registered practitioner, if he do not act -as such for hire or gain [96]. - -Where one partner was registered and the other was not, and there was -painted on the sign after the name of the first “M.D., M. C. P. & -S., Ont.,” and after the name of the other only “M.D.,” it was held -that the use of the simple letters “M.D.,” in contradistinction to -the full titles of the partner on the same sign was not the use of a -title “calculated to lead people to infer registration,” and that the -unregistered partner was not guilty of an offence under the act [97]. - -In Ontario, provision is made for the registration of Homœopathists -as well as of regular practitioners, and for the Eclectics who were -practising in the Province for six years before 1874. - -A physician practising in another country, and performing medical -services for a patient then residing there, may recover his fees in -this Province notwithstanding he is not |47| registered [98]. A medical -practitioner duly registered in England, under the Imperial Act, is -entitled in Ontario to registration upon payment of fees without -examination [99]. - -In the United States, the common law doctrine, which favours the right -of every man to practise in any profession or business in which he is -competent, prevails to a great extent; and medicine being regarded by -it as an honorific profession, no apprenticeship was required, but -the practitioner always prescribed at his peril. This was also the -doctrine of the civil law, which drew no barriers around either law or -medicine. Any one who pleased might practise them without any previous -qualification; subject always to responsibility for injury inflicted -upon others. - -In the absence of any statutes, therefore, limiting the common law -right to practise medicine inherent in every person, the term physician -may there be applied to any one who publicly announces himself to be -a practitioner of the art and undertakes to treat the sick, either -for or without reward. The common law knows nothing of systems or -schools of medicine. In its eyes, Eclectic, Botanic, Physio-Medical, -Electrical, Thompsonian, Homœopath, Reformed, Indian Doctor, Cancer -Doctor, Indianopathist, Clairvoyant Doctor and regular physician are -alike. The scales of justice are no more affected by the large doses of -the allopathist than by the infinitesimal supplies of the homœopathist. -But the law will sometimes interfere where one not pretending to be -a practising physician uses a peculiar system in his own family. A -father, during the sickness of his children and wife, refused to -provide any medical treatment, except that applied by himself, called -the Baunscheidt system, which consists in pricking the skin of the -patient in different parts of the body with an instrument armed with -|48| a number of needles and operated by a spring, and then rubbing -the parts affected with an irritating oil. The wife and three children -had died within a month. The man practised the exanthematic treatment -upon them, but did not even call in physicians who used that mode. -The Superior Court of Pennsylvania deprived this believer in the -Baunscheidt panacea of the custody of his surviving children [100]. - -Before the common law every one undertaking to treat the sick -professionally, and as the exercise of his vocation, is legally a -physician. He has the rights of one, and when he assumes those rights -the law lays upon him the heavy burdens and responsibilities of the -profession. It is, of course, far otherwise if any statute prescribes -particular qualifications for the practice of the profession and one -undertakes to discharge its duties without such qualifications. Then -he is doubly a wrong-doer; first, as against the statute; and, second, -as against the public, who have a right to demand in him the ordinary -proficiency of his profession [101]. - -In Arkansas, California, Connecticut, Kentucky, Maryland, -Massachusetts, Michigan, Mississippi, Missouri, New Jersey, Texas and -Vermont, there appear to be no statutory requirements regulating the -practice of physicians or surgeons. In Virginia, the practitioner -only needs a license. In Alabama, Florida, Georgia, Louisiana, Maine, -Minnesota, Ohio and Wisconsin, a practitioner must either have a -license from a medical board or society, constituted according to -the law of the respective States, or else be a graduate of a medical -college. In South Carolina and the District of Columbia, he must be -licensed by the medical board; so, too, in Delaware. But this rule -in Delaware does not apply to those who practise exclusively the -|49| Thompsonian or botanic, or homœopathic systems; or practise -gratuitously or for what is willingly given them. - -In New York State, early in the century, it was enacted that no one -practising physic or surgery, without a license, could collect any -debts incurred by such practice, and it was a penal offence so to -practise. In 1830, the unauthorized practice of physic or surgery -was made a misdemeanor punishable by fine or imprisonment, or both. -Shortly afterwards the offence was made penal instead of criminal, -and it was declared the provisions should not extend to any one using -or applying for the benefit of any sick person any roots, barks, or -herbs, the growth or produce of the United States. In 1844, all laws -limiting the right to practise medicine or surgery were repealed; free -trade in physic prevailed; all examinations, certificates and licenses -were declared unnecessary; the repealing Act expressly permitted any -person to practise physic subject to punishment, as for a misdemeanor, -if he should be convicted of gross ignorance, malpractice, or immoral -conduct. However, a change came, and, in 1874, the legislature declared -that it was “a misdemeanor for any person to practise medicine or -surgery in the State of New York, unless authorized so to do by a -license or diploma from some chartered school, State board of medical -examiners, or medical society,” or to practise under cover of a medical -diploma illegally obtained. The penalty for the first offence is a fine -of not more than $200; for a subsequent offence a fine of from $100 to -$500, or imprisonment for not less than thirty days, or both [102]. In -1880, it was further enacted that no person shall “practise physic -or surgery within the State unless he is twenty-one years of age, and -has been heretofore authorized so to do pursuant to the laws in force -at the time of his authorization, or is hereafter authorized so to do, -either by license from the regents of the University of the State |50| -of New York, a diploma of an incorporated medical college within the -State, or of one without the State approved of by some proper medical -faculty within the State.” Every physician or surgeon, except those who -had been practising ten years before 1880 (and a few others), had to -register with the clerk of the county, where he practised, his name, -residence, place of birth, together with his authority to practise. - -After the repeal of the old Medical Acts, and before the enactment -of the law of 1874, the New York Court of Common Pleas had to define -who was a physician or doctor, and it said the words simply meant, -“a person who made it his business to practise physic; and it was -wholly immaterial to what school of medicine he belonged, or whether -he belonged to any. The legal signification of the term doctor means -simply a practitioner of physic. The system pursued is immaterial. -The law has nothing to do with the merits of particular systems.” The -point came up in considering a case where an agreement of employment -between an opera director and a vocalist provided for the forfeiture of -a month’s salary in case the latter should fail to attend at any stated -performance, except in the case of sickness, certified to by a doctor -to be appointed by the director. The director appointed Dr. Quin, an -homœopathist. Signor Corsi, the baritone, had a bad cold and a sore -throat, but would not consult Dr. Quin, and proffered a certificate of -an allopathist of his own choosing. This Max Maretzek would not take, -and he refused to pay Corsi his salary. The singer sued, but the Court -held that the provision was binding upon the artist, although the -director had appointed a person in the practice of what is known as the -homœopathic system of medicine. * * * The Court considered it was error -to attempt in the then present state of medical science to recognize as -a matter of law any one system of practice, or to declare that the |51| -practitioner who follows a particular system is a doctor, and that one -who pursues a different method is not [103]. - -It has been held, however, that where a “regular physician” is spoken -of, an allopathic is meant [104]. - -In Iowa, the Court said, “As yet there is no particular system of -medicine established or favoured by the laws of Iowa, and as no -system is upheld none is prohibited. The regular, the botanic, the -homœopathic, the hydropathic and other modes are alike unprohibited. -Though the regular system has been advancing as a science for -centuries, aided by research and experiment, by experience and skill, -still the law regards it with no partiality or distinguishing favour, -nor is it recognized as the exclusive standard or test by which the -other systems are to be adjudged” [105]. - -Notwithstanding the New York law of 1874, one can undertake to effect -cures by manipulation without possessing a diploma. He may even -maintain an action for the compensation agreed upon, although not a -graduate and having no license to practise. A man professed to cure -by rubbing, kneading and pressing the body. The court considered his -system was rather one of nursing than of either medicine or surgery, -and that it could not result in any injury to the person practised -upon than that of possible financial loss [106]. Yet, in Maine, where -a license is required, even a “medical clairvoyant” was held to come -within the statute, and it was decided that he could not render his -professional services without having the legal permission. In England, -an unregistered person sued to recover his charges for galvanic -operations, and for materials and electric fluid used therein. The jury -decided in favour of the galvanizer, and the court |52| would not -disturb the verdict, as the work was done before the Act of 1858 came -into operation, but expressed a strong opinion that if the work had not -been done when it was, it would have been impossible to hold that the -case did not fall within the statute [107]. - -A physician must practise according to the principles of his school. -There are distinct and different schools of practice; allopathic or old -school, homœopathic, Thompsonian, hydropathic or water cure; and if a -physician of one of those schools is called in, his treatment is to be -tested by the general doctrines of his school, not by those of other -schools. It is presumed that patient and physician both understand -this [108]. - -A person professing to follow one system of medical treatment cannot -be expected by his employer to practise another. While the regular -physician is expected to follow the rules of the old school in the art -of curing, the botanic physician must be equally expected to adhere to -his adopted method. While on the part of every medical practitioner the -law implies an undertaking that he will use an ordinary degree of care -and skill in medical operations, and he is unquestionably liable for -gross carelessness or unskilfulness in the management of his patients, -still the person who employs a botanic practitioner has no right to -expect the same kind of treatment or the same kind of medicine that -a regular physician would administer. The law does not require a man -to accomplish more than he undertakes, nor in a different manner from -what he professes. So, if one is employed as a botanic physician, and -performs his services with ordinary care and skill, in accordance -with the system he professes to follow, that will be regarded as a -legal defence to a suit for malpractice. It would show a full |53| -compliance with his profession and undertaking, and if injury resulted -to the plaintiff he could blame no one but himself [109]. - -If a patient has not been deluded by any but himself, and voluntarily -employs in one art a man who openly exercises another, his folly has no -claim to indulgence. The old Mahomedan case, cited by Puffendorf with -approbation, is very much to the point. A man who had a disorder in his -eyes called on a farrier for a remedy. This worthy gave him a remedy -commonly used by his quadrupedal patients. The man lost his sight, and -brought an action against the farrier for damages; but the Judge said -that no action would lie, for, if the complainant had not himself been -an ass, he would never have employed a horse doctor. But when a case, -the converse of this, came up, the Court remarked that, “stock and the -human family are animals with many similitudes and some variances; -so that, although it be admitted that one acquainted with the mode -of treating diseases of the human family should not be relied on to -select from the materia medica substances apt for the treatment of -stock, still we think it clear that one having a scientific knowledge -of the diseases of men must be presumed to have so much knowledge of -the diseases of a mule as to enable him to determine whether a disease -with which the animal is afflicted be of recent or long standing. An -expert in the diseases of man is necessarily an expert in the diseases -of animals, so as to make his opinion competent evidence upon a matter -in reference to which he will swear that his scientific knowledge has -enabled him to form an opinion.” And so a physician was allowed to give -his opinion as to whether the disease with which a mule was afflicted -was, or was not, of long standing, as he considered himself competent -so to do from his knowledge |54| of the diseases to which human flesh -is heir, although he knew nothing in particular about the diseases of -stock [110]. - -As one who employs a homœopathic or botanic physician knowingly cannot -object to his bill because he was not treated in the way usual among -orthodox practitioners; so, on the other hand, if a physician of one -school is employed by one who has a _penchant_ for that particular -system, and treats his patient according to a different system, he -cannot recover for his services if he fail to benefit the patient [111]. - -Proof that one practises physic is _prima facie_ evidence of his -professional character; and if one holds himself out as a physician and -surgeon, and acts as such, the law will hold him liable as such [112]. - -A physician who merely casually makes up a prescription for a friend -when meeting him upon the street, cannot be called his medical -attendant; that term means one to whose care a sick person has been -confided [113]. - - - - -|55| - -CHAPTER V. - -NEGLIGENCE AND MALPRACTICE. - - -Malpractice, or _mala praxis_, may be defined to be an improper -discharge of professional duties, either through want of skill or -negligence. It is now more particularly applied to torts—when committed -by a physician, surgeon, or apothecary. - -It is a great misdemeanor and offence at common law, whether it arise -from curiosity and experiment, or from neglect; because it breaks the -trust which the party has placed in the physician, tending directly to -his destruction [114]. A medical man who is guilty of gross negligence, -or evinces a gross ignorance of his profession, is criminally -responsible for the consequences. And one who, by a culpable want of -care and attention, or by the absence of a competent degree of skill -and knowledge, causes injury to a patient, is liable to a civil action -for damages; unless, indeed, such injury be the immediate result of -intervening negligence on the part of the patient himself; or unless -such patient has by his own carelessness directly conduced to such -injury [115]. - -It is sometimes difficult to distinguish between civil and criminal -malpractice, or to say when one is criminally, and when only civilly -responsible. But it may be said generally, that to constitute criminal -liability there must be such a |56| degree of complete negligence in -the practice as the law means by the word felonious [116]. - -There may be malpractice by commission, _i. e._, from the want of -ordinary skill in the discharge of professional duties; or malpractice -by omission, _i. e._, from negligence in the discharge of such duties. - -The question, “Was there negligence?” will be answered from the stand -point of the law, not from that of medicine, when a matter comes to be -judicially investigated. The law as applicable to other professions -and occupations will be applied to the medical or surgical case under -consideration. - -Strictly speaking, the term _negligence_ is limited in its application -to carelessness in the performance of professional duty; _carelessness_ -is its proper synonyme. Duties performed without care, caution, -attention, diligence, skill, prudence, or judgment, are negligently -performed. Acts are so designated which are performed by one -heedlessly, even when there is no purpose to omit the performance of -duty. It is _non-feasance_, not malfeasance. It is the omitting to do, -and not the ill-doing—it is the leaving undone what one ought to have -done—not the doing what one ought not to have done—this last being a -want of skill. In its various degrees it ranges between simple accident -and actual fraud, the latter beginning where negligence ends [117]. - -Wharton, after criticising various definitions, proposes this, -“Negligence, in its civil relations, is such an inadvertent -imperfection, by a responsible human agent, in the discharge of a legal -duty, as immediately produces, in an ordinary and natural sequence, -a damage to another” [118]. |57| Negligence, in medical practice, is -a violation of the obligation that medical men impliedly enter into -when they accept the charge of a patient; such obligation enjoins care -and caution in what they do, and in what they omit to do. A medical -man is liable as well for want of skill, as for negligence, and an -injured party may bring his action to recover for damage resulting from -ignorance and carelessness, and recover on proving that he sustained -damage from either [119]. - -Physicians and surgeons have specified duties imposed upon them when -they undertake the charge of a patient. Refusing to perform their part -of the implied contract will constitute negligence, and for all injury -resulting therefrom they will be held accountable. It will constitute -a tort for which the law gives damages [120]. Of course a medical man, -unless he be an officer of the Government, charged with specific duties -which he thereby violates, has a legal right to decline to take charge -of a particular case. When in charge, however, he is liable for any -negligence, whether of omission or commission, which may produce injury -to his patient. _Voluntatis est suscipere mandatum, necessitas est -consummare_ [121]. - -There is an implied obligation on a man holding himself out to the -community as a physician and surgeon, and practising his profession, -that he should possess the ordinary skill requisite for reasonable -success, and that he should attend to the case with due care [122]. -If the patient knows of the practitioner’s want of skill, he cannot -complain of the lack of that which he knew did not exist. |58| - -A surgeon does not become an actual insurer [123]; the implied contract -is not to cure, but to possess and employ in the treatment of the -case such reasonable skill and diligence as are ordinarily exercised -by thoroughly educated surgeons; and in judging of the degree of -skill and attention required, regard is to be had to the time and -place. The law implies that in the treatment of all cases which they -undertake medical men will exercise reasonable and ordinary care and -diligence; they are bound always to use their best skill and judgment -in determining the nature of the malady and the best mode of treatment, -and in all respects to do their best to secure a perfect restoration -of their patients to health and soundness. But they do not impliedly -warrant the recovery of their patients, and are not liable on account -of any failure in that respect, unless it is through some default of -their own [124]. Tindal, C.J., in summing up to the jury in an action -for improper treatment to a hand and wrist, whereby the plaintiff -lost the use of her hand, well said, “Every person who enters into -a learned profession undertakes to bring to the exercise of it a -reasonable degree of care and skill. He does not undertake, if he is a -surgeon, that he will perform a cure, nor does he undertake to use the -highest possible degree of skill. There may be persons who have higher -education and greater advantages than he has, but he undertakes to -bring a fair, reasonable and competent degree of skill.” - -Wharton and Stillé thus state the law: “A physician and surgeon is -only responsible for ordinary skill, etc., and for the exercise of his -best judgment in matters of doubt. He is not accountable for a want of -the highest degree of skill [125], nor for an erroneous, though honest -conclusion, |59| according to his best light [126]. The law has no -allowance for quackery. It demands qualification in the profession -practised, not extraordinary skill such as belongs to few men of rare -genius and endowment, but that degree which ordinarily characterizes -the profession. And in determining whether the practitioner possesses -ordinary skill, regard must be had to the advanced state of the -profession at the time [127]. - -As to what is ordinary or reasonable skill or care, the rule has -sometimes been laid down thus favourably, “The least amount of skill -with which a fair proportion of the practitioners of a given locality -are endowed, is to be taken as the criterion by which to judge the -physician’s skill or ability” [128]. Or, as another writer puts it, -“It has been finally determined to consider the least amount of skill -compatible with a scientific knowledge of the healing art as sufficient -to predicate the existence of ordinary skill” [129]. To render a medical -man liable even civilly for negligence, or want of due care or skill, -it is not enough that there has been a less degree of skill than some -other medical man may have shown, or a less degree of care than even -he himself might have bestowed, nor is it enough that he himself -acknowledges some degree of want of care; there must have been a want -of competent and ordinary care and skill, and to such a degree as to -have led to a bad result [130]. - -In a city there are many means of professional culture which are -inaccessible in the country. Hospitals can be walked, libraries -visited, new books and appliances bought, |60| constant intercourse -had with the greater lights of the profession. What is due diligence, -therefore, in the city, is not due diligence in the country; and what -is due diligence in the country is not due diligence in the city. -Hence, the question, in each particular case, is to be determined, -not by enquiring what would be the average diligence or skill of the -profession (which would be a thing very difficult to reach), but -what would be the diligence or skill of an honest, intelligent and -responsible practitioner in the position in which the one in question -was placed [131]. - -The skill required is not an _absolute_ but a _relative_ qualification; -and as such, therefore, always subordinated to whatever conventional -standard of professional proficiency we may choose to adopt. Like -morals, it may vary with times and places, or, if based upon -representative intellects, it is clear that the ideal type selected -must be one to which the majority, rather than the minority, of minds -approximate [132]. A physician, when called upon to manage a case, is -not required to apply the skill and care which could be applied by the -perfect ideal physician, for the reason that from the limitation of the -human intellect no perfect ideal physician exists in practice, and, -from the limitation of human endurance, no perfect ideal physician, -even if he existed, could watch a patient unintermittingly. But a -physician, when called upon to manage a case, is bound to exercise -the skill and vigilance which good and faithful physicians, under the -circumstances in which he is placed, would exercise. If called upon in -a country town, remote from the great centres of scientific activity, -to attend to an exceptional case which requires immediate action, he -is not liable if he does not employ those mechanisms which only a -residence in such a centre of scientific activity would enable him to -procure. On the other hand, a physician living in such a |61| centre -is liable for negligence, if, when called upon in such a case, he does -not use such mechanism, supposing its application to be advisable [133]. - -A physician and surgeon is bound to possess the ordinary skill, -learning and experience of his profession generally at the time in -similar localities, and with similar opportunities for experience [134]. - -A patient is entitled to the benefit of the increased knowledge of -the day. The physician or surgeon who assumes to exercise the healing -art is bound to be up to the improvements of the day. The standard of -ordinary skill is on the advance; and he who would not be found wanting -must apply himself with all diligence to the most accredited sources of -knowledge [135]. - -Sex is no excuse for negligence; there is no rule of law to the effect -that less care is required of a woman than a man. A lady physician -cannot as such claim any privilege of exemption from the care and -caution required of men, any more than a woman acting as a locomotive -engineer could be allowed to use less diligence to avoid mischief to -others than men must use. Male and female are governed by the same rule -in this respect: the rule of prudent regard for the rights of others -knows nothing of sex [136]. Inasmuch as gratuitous services are more -generally rendered by young and inexperienced physicians than by those -who are well established in their business, a presumption naturally -arises that one who renders such services is not possessed of great -skill, and was not supposed to be by the patient. This presumption may -be overcome by proof to the contrary; and the physician must be judged -by the |62| standard to which he led the patient to believe he had -attained; or, if he has done nothing to mislead his patient upon this -point, his responsibility will be measured by the degree of skill which -he is proved actually to possess [137]. - -It has been laid down in Maine, that physicians and surgeons who offer -themselves to the public as practitioners impliedly promise thereby -that they possess the requisite skill and knowledge to enable them to -heal such cases as they undertake with reasonable success; and that -this rule does not require the possession of the highest, or even the -average skill, knowledge and experience, but only such as will enable -them to treat the case understandingly and safely [138]. - -Considering how much the treatment of a case depends upon its varying -phases, which change as quickly as the shifting hues of the heavens, it -is hard for one medical man to come forward and condemn the treatment -of a brother in the profession, and to say he would have done this or -that, when probably, had he been in a position to judge of the case -from the first, he would have done no better [139]. - -If a physician does not bring to the treatment of an injury or of -a disease the ordinary amount of skill possessed by those in his -profession, it is immaterial how high his standing may be; if he has -skill and does not apply it he is guilty of negligence, and if he -does not have it then he is liable for the want of it. When a case of -alleged malpractice is before the court, the questions to be considered -are: Did the defendant possess the ordinary skill of persons acting as -medical men? If he did, was he chargeable in not applying it in the -treatment of the patient? Whether |63| he possessed greater skill, -or had been successful in the treatment of other patients, is wholly -immaterial. Where the point in issue is whether skill was applied in a -given case, the possession of skill without proof that it was applied -will be no defence [140]. - -The law punishes negligence no less than want of skill. It is -undoubtedly true that the physician is the best judge of the degree -of attention which any case requires. Nor is it in the omission to -make a given number of visits that negligence resides, but whenever -any important step in the treatment of disease is neglected, or any -important stage of it overlooked, which might have been used for the -benefit of the patient, then it may be averred that the physician has -been guilty of negligence, however assiduous he may otherwise have -been at different periods of his treatment. Skill and diligence may be -considered, therefore, as indissolubly associated, since skill judges -of the measure of diligence required and also furnishes the latter with -the eyes of observation and the hands of execution; while diligence on -her part gives cumulative power to skill, and leaves no link wanting -in the continuous train of treatment [141]. The measure of skill which -a physician is bound to exercise is not affected by his refusal of the -proffer of assistance from other medical men [142]. The Court said that -such a refusal is no more than an implied declaration of ability to -treat the case properly. By assuming and continuing the charge of the -patient, the physician is under an obligation to exercise a degree of -skill which is neither increased or diminished by such refusal. - -In considering the skill and knowledge of a practitioner regard must -be had to the school to which he professes to |64| belong; and where -there is no particular system established or favoured by law, and no -system is prohibited, every physician is expected to practise according -to his professed and avowed system. A botanic physician is to be gauged -according to the botanic system, and a homœopathic physician by the -homœopathic system: so if a botanic doctor, or a homœopathist, is sued -for malpractice he may free himself from blame by showing that his -practice was according to the rules of the school which he professed -and was known to follow, and a departure from the received canons of -his system will be taken as a want of ordinary skill. But the jury is -not to judge by determining which school in their own view is best [143]. - -A sign or other proof that one actually practises physic or surgery -is _prima facie_ evidence of his professional character [144]. And -when a physician’s skill is at issue he may adduce evidence to prove -the existence of such general skill on his part, irrespective of the -particular case as to which the question arises; and he may show this -by the testimony of those in his profession who can speak from personal -knowledge of his practice [145]. - -The possession of a medical diploma is _prima facie_ of ordinary skill. -But of course it must be shown that the college from which it emanated -had authority to grant degrees in medicine [146]. - -If, in the absence of a medical man, a non-professional person is -called in to assist a person taken suddenly sick, such amateur is not -liable for special or slight negligence, |65| that is for the lack of -that diligence and skill belonging to a professed physician; but he -is liable for gross negligence (the _culpa lata_ of the Latinists), -that is, the lack of the diligence and skill belonging to ordinary -unprofessional persons of common sense; while, as we have seen, the -physician is liable for slight negligence (_culpa levis_), if he either -undertakes the case without the ordinary qualifications of a physician -under such circumstances, or manages it without the ordinary skill of -such a physician [147]. - -If a physician treats a patient without being requested so to do, -he is held to a more strict account than in ordinary cases. In one -instance, a medical man administered physic to a slave without the -owner’s consent, and the court held him responsible for all the evil -consequences which resulted [148]; and this rule is still more rigidly -enforced when the volunteer by his officiousness excludes a competent -practitioner who would have been otherwise obtainable. If one who is -not a regular medical practitioner professes to deal with the life and -health of others, he is bound to have and employ competent skill [149]. - -The mere fact that he renders his services gratuitously, or out of -charity, does not free the practitioner from all liability. But, -according to some authorities, the attendant in such cases is held to -a less strict accountability than when his services are based upon -an implied contract, and is liable only for gross negligence [150]. -Amos, in his “Science of Law,” says, “The less the payment made in -return for diligence, the less the diligence that is expected; and if -no payment at all is made, as little diligence as possible is |66| -usually expected, though it may be that some is.” Wharton cannot accept -this doctrine from humane and other considerations [151]. And Ordronaux -says that it may be considered as a received principle of law that, a -physician, though rendering his services gratuitously, as in hospitals -or among the out-door poor, is bound to exhibit the same degree of -ordinary skill and diligence in the treatment of a patient as if he -were acting under the incentive of a consideration or prospective -reward. If he undertakes to execute the trust reposed in him, he is -bound to do it well, or else he may be compelled to respond in damages -to the party injured by his misfeasance. It is not the consideration -which constitutes the foundation of his responsibility, but the fact -that in voluntarily accepting the mandate, _spondet peritiam artis_, -indiscriminately to all. He cannot apportion medical skill or his -diligence to meet the prospective emoluments flowing out of any given -case [152]. - -In a criminal case, Denman, J., told the jury that it made no -difference whether a medical man was dealing with a patient or acting -as a volunteer, and dealing with a friend or with his own wife [153]. -But Cockburn, C.J., in a case where a patient in a hospital sued two -surgeons for injury received from being scalded in a bath, in which -he had been placed by the nurses on the orders of the surgeons, said, -no doubt persons who went as patients into hospitals were not to be -treated with negligence; but, on the other hand, medical gentlemen -who gave their services gratuitously were not to be made liable for -negligence for which they were not personally responsible. The jury -gave a verdict in favour of the doctors [154]. - -If a sick man applies to one, not a physician, for |67| gratuitous -medical assistance, and this one either does not exert all his skill, -or administers improper medicine to the best of his ability, he is not -liable for damage [155]. - -The amount of prudence which a man must exercise in selecting a -physician, and the means to be cured, is the same that any prudent and -reasonable man would do in any other matter [156]. - -It is the duty of a patient to co-operate with his medical adviser, and -to conform to the necessary prescriptions; and if, under the pressure -of pain, he does not, or, if by refusing to adopt the remedies of the -physician, he frustrates the latter’s endeavours, or, if he aggravates -the case by his own misconduct, he cannot charge against the physician -the consequences due distinctively to himself; for no one can take -advantage of his own wrong. In such a case, even if the physician’s -treatment was objectionable, he can only recover nominal damages; and -if the injury was due to the patient’s fractiousness and disregard of -the doctor’s orders (the latter being judicious), no action at all will -lie [157]. - -In Ohio, it was held that, in an action for malpractice in the -treatment of a swollen ankle and diseased foot, the Judge had not erred -in saying to the jury, “If you find that the defendant directed the -plaintiff to observe absolute rest as a part of the treatment to his -foot, and that direction was such as a surgeon or physician of ordinary -skill would adopt or sanction, and the patient negligently failed to -observe such direction, or purposely disobeyed the same, and that such -negligence or disobedience approximately |68| contributed to the injury -of which he complains, he cannot recover in this action; although -he may prove that the defendant’s negligence and want of skill also -contributed to the injury. The injured party must not have contributed -at all.” The information given by a surgeon to his patient concerning -the nature of his malady is a circumstance that should be considered in -determining whether the patient, in disobeying the instructions of the -surgeon, was guilty of negligence or not [158]. - -The general doctrine of contributory negligence is this, that although -there may have been negligence on the part of the plaintiff, yet, -unless he might, by the exercise of ordinary care, have avoided the -consequence of the defendant’s negligence, he is entitled to recover; -if, by ordinary care, he might have avoided it, then he is the author -of his own wrong [159]. The rule is laid down in another case as -follows: If it be impossible to separate the injury occasioned by the -plaintiff from that occasioned by the neglect of the defendant, the -plaintiff cannot recover; if, however, they can be separated, for such -injury as the plaintiff may show thus preceded solely from the want of -ordinary skill or ordinary care of the defendant, he may recover [160]. - -The patient must exercise ordinary care and prudence; he is not bound -to observe the utmost possible caution. And the ordinary care required -has been defined to be that degree of care which persons of ordinary -care and prudence are accustomed to use and employ under similar -circumstances [161]. In fact the plaintiff must use his own senses [162]. -Still, if he is rash and negligent, and yet the |69| physician has -been so very neglectful that ordinary care on the part of the patient -would not have prevented the unfortunate result, the plaintiff will be -entitled to recover damages [163]. So, where the doctor’s negligence is -the proximate cause of the injury, and that of the patient only the -remote cause [164]. And proximate does not mean the first or nearest in -order of time, but the first or nearest in order of cause [165]. - -It is to be remembered that a physician may be called to prescribe for -cases which originated in the carelessness of the patient; and though -such carelessness would remotely contribute to the injury sued for, -it would not relieve the physician from liability for his distinct -negligence and the separate injury occasioned thereby. The patient -may also, while he is under treatment, injure himself by his own -carelessness; yet he may recover of the physician, if he carelessly -or unskilfully treats him afterwards, and thus does him a distinct -injury [166]. The burden of proving that the plaintiff’s own negligence -contributed to the injury rests upon the defendant [167]. Evidence that -the patient requested the defendant to perform an operation, or do -an act, which caused the injury, does not tend to prove contributory -negligence, if the injury was not the natural result of such act -carefully performed [168]. - -If the patient is insane, and so incapable of co-operating with the -physician, contributory negligence is not imputable. And this inability -the physician is bound to take into account [169]. |70| - -If the physician has injured the patient by his negligence, the -refusal of the patient, or his custodian, to allow an experiment, -by another physician, to repair the injury is not contributory -negligence, unless he had reasonable assurance of the success of the -experiment [170]. - -The practitioner is liable where a patient suffers from his want of -ordinary skill and diligence, even though the carelessness of those -nursing the patient may have aggravated the case and rendered the -ultimate condition of the patient worse than it otherwise would have -been. Although this carelessness in nursing may be proved in mitigation -of the damages sought against the physician, it will not serve to -bar the right of action [171]. And where two surgeons, who gave their -services gratuitously to the sick in a hospital, were sued by one -Perionowsky, for maltreatment there by causing him to be placed in a -bath so hot that he was scalded and injured, and it was proved that -the bath, though ordered by the defendants, was actually administered -by the nurses, and that the defendants were not present when it was -given, and that it was no part of their duty personally to superintend -such things. Cockburn, C.J., in summing up, told the jury that the -surgeons would not be liable for the neglect of the nurses unless near -enough to be aware of it and to prevent it [172]. And, in another case, -the court held that if a jury were to find that the parents of the -patient (a boy) were in charge of and nursed him during his sickness, -and that they did not obey the directions of the physician in regard to -the treatment and care of their son during such time, but disregarded -the same, and thereby contributed to the several injuries of which he -complains, he could not recover. If the injuries were |71| the result -of mutual and concurring neglect of the parties no action to recover -damages therefor will lie [173]. - -The medical man has ofttimes to sail between Scylla and Charybdis. -While, on the one hand, he is bound to consult the attainable -literature in his profession, and to diligently gather in, for every -case he undertakes to treat, the experience of his confreres—for in -determining what is negligence, the improvements that are constantly -taking place are always considered—at the same time he must not try new -modes or methods too readily, lest a Judge say of him, as one said in -a surgery case, “It appears from the evidence of the surgeons that it -was improper to disunite the callus without consent. This is the usage -and law of surgeons. Then it was ignorance and unskilfulness, in that -very particular, to do contrary to the rule of the profession what no -surgeon ought to have done. For anything that appears to the court, -this was the first experiment made with this new instrument; and, if -it was, it was a rash action, and he who acts rashly acts ignorantly; -and although the defendants (a surgeon and an apothecary), in general, -may be as skilful in their respective professions as any two gentlemen -in England, yet the court cannot help saying that, in this particular -case, they acted ignorantly and unskilfully, contrary to the known rule -and usage of surgeons;” (and they had to pay the plaintiff £500 for the -damage to his leg) [174]. Success is the only thing that justifies an -innovation either in politics or physic. - -When it is proved that the physician has omitted altogether the -established mode of treatment, and has adopted one that has proved to -be injurious, evidence of skill, or of reputation for skill, is wholly -immaterial, except to show (what the law presumes) that he possesses -the ordinary |72| degree of skill of persons engaged in the same -profession. In such a case, it is of no consequence how much skill he -may have; he has demonstrated a want of it in the treatment of the -particular case. - -The failure to use skill, if the surgeon has it, may be negligence; but -when the treatment adopted is not in accordance with the established -practice, but is positively injurious, the case is not one of -negligence, but of want of skill. If the case is a new one, the patient -must trust to the skill and experience of the surgeon he calls. So must -he if the injury or disease is attended with injury to other parts, -or other diseases have developed themselves, for which there is no -established mode of treatment. But when the case is one as to which a -system of treatment has been followed for a long time, there should be -no departure from it, unless the surgeon who does it is prepared to -take the risk of establishing by his success the propriety and safety -of his experiment. This rule protects the community against reckless -experiments, while it admits the adoption of new remedies and modes of -treatment only when their benefits have been demonstrated, or where, -from the necessity of the case, the surgeon or physician must be left -to the exercise of his own skill and experience [175]. - -Physicians are not bound to comply with the demands of the public; they -may accept or refuse a call: but having accepted, one must continue in -attendance upon the case until recovery, unless dismissed, or unless -he has withdrawn in a proper way. Even if his services are gratuitous, -he must continue them until reasonable time has been given to procure -other attendance. - -A husband sued a medical man for neglecting to attend |73| his wife, -according to agreement, during childbirth, and the jury gave him a -verdict of $500; the court considered that the physician had broken his -contract and was liable therefor, but reduced the damages to a nominal -sum, as, in an action on contract, the husband could not recover for -the personal injury and sufferings of the wife [176]. - -If a physician at any time desires to withdraw from a case, he must -give such reasonable notice as will enable the patient to obtain -assistance elsewhere. He has a right to withdraw at any time, -especially with his patient’s consent, but if he insists upon that -assent as a shield from liability for any negligence of which he may -have been guilty, or for any malpractice committed, the patient may -show, if he can, that the consent was obtained by representations -that were false; and then the consent will be no protection against -liability for damage that had occurred before the consent was -given [177]. - -While it is quite competent for a physician and his patient to make -any agreement they think fit, limiting the attendance to a longer or -shorter period, or to a single visit; and while, if there is no such -limitation, the physician can discontinue his attendance at his own -pleasure, after giving reasonable notice of his intention to do so; -yet, if he is sent for at the time of an injury by one whose family -physician he has been for years, the effect of his responding to the -call will be an engagement to attend upon the case so long as it -requires attention, unless he gives notice to the contrary, or is -discharged by the patient; and he is bound to use ordinary care and -skill, not only in his attendance but in determining when it may be -safely and properly discontinued [178]. Ordronaux says a physician -cannot |74| abandon a case without due notice. To do so would -constitute negligence of a grave character, and render him answerable -for all injury sustained by the patient in consequence thereof. The -contract is for the performance of a service of indefinite duration, -and usually without stipulation for its continuance during any -particular period. It is plainly a fraud upon the employer to abandon -or neglect discharging the trust after having accepted it, for the -acceptance constitutes a promise, and a promise is a good foundation -upon which to rest a legal obligation. If the physician retires from -it, he can only do so by placing the employer in as good circumstances -as he found him, and by giving due notice of his intention [179]. - -A medical man is liable to a civil action for injury resulting to -a patient from his negligence or unskilful treatment, although the -patient neither employed nor was to pay him. As Baron Parke said: -“If an apothecary administers improper medicines to his patient, or -a surgeon unskilfully treats him, and thereby injures his health, he -will be liable to the patient, even where the father or friend of the -patient may have been the contracting party with the apothecary or -surgeon; for, though no such contract had been made, the apothecary, -if he gave improper medicines, or the surgeon, if he took him as a -patient and unskilfully treated him, would be liable to an action for -a misfeasance” [180]. And as Richards, C.B., said: “From the necessity -of the thing, the only person who can properly sustain an action for -damages for an injury done to the person of a patient, is the patient -himself, for damages could not be given on that account to any other -person, although the surgeon may have been retained and employed by -him to undertake the case” [181]; and in this same case, which was an -|75| action brought by a husband and a wife for an injury done to the -wife, Garrow, B., said; “In the practice of surgery, the public are -exposed to great risks from the number of ignorant persons professing -a knowledge of the art, without the least pretensions to the most -necessary qualifications, and they often inflict very serious injury -on those who are so unfortunate as to fall into their hands. In cases -of the most brutal inattention and neglect, the patients would be -precluded frequently from seeking damages by course of law, if it -were necessary to enable them to recover, that there should have been -a previous retainer, on their part, of the person professing to be -able to cure them. In all cases of surgeons retained by any public -establishments, it would happen that the patient would be without -redress, for it could hardly be expected that the governors of an -infirmary should bring an action against the surgeon employed by them -to attend the child of poor parents, who may have suffered from his -negligence and inattention” [182]. - -As in the case of an attorney, so with a physician, it is not every -mistake or misapprehension that will make him liable to an action for -negligence. There is scarcely a case in which a physician is called in, -in which he may not be charged with _culpa levissima_, or the omission -to ward off every possible casualty; and if _culpa levissima_ makes -him liable, then his liability becomes almost co-extensive with his -practice. He is only responsible for _culpa levis_ [183]. - -It must be remembered that the implied liability of a physician or -surgeon, retained to treat a case professionally, extends no further, -in the absence of a special agreement, than that he will indemnify his -patient against any injurious consequences resulting from his want of -the proper degree of skill, care or diligence, in the execution of his -|76| employment; and in an action against the surgeon for malpractice, -the plaintiff, if he shows no injury resulting from negligence or want -of skill in the defendant, will not be entitled to recover even nominal -damages [184]. - -The question whether the physician possessed adequate skill, and -exercised adequate care, is, in a case of malpractice, for the jury -to decide. Theoretically, and we may add, literally, the jury have -the unquestioned right to decide every controverted fact, even if its -decision may involve the most abstrusively difficult and uncertain -questions in the regions of scientific enquiry. But it is for the -Judge to determine whether there is or not such evidence as ought -reasonably to satisfy the jury that the fact sought to be proved is -established. As Lord Cairns once put it, “The Judge has to say whether -any facts have been established by evidence from which negligence _may -be reasonably inferred_, the jury have to say whether from these facts, -when submitted to them, _negligence ought to be inferred_.” It is for -the Judge to say whether the case should or should not be submitted -to the jury; and the rule is imperative that it should not be, unless -the evidence be such that therefrom the negligence charged may be -reasonably inferred [185]. - -Judges are generally desirous of impressing on juries the necessity of -construing everything in the most favourable way for the defendant, -when such actions are brought against a surgeon. “It is notorious -there are many cases in which jurors are not the most dispassionate or -most competent persons to try the rights of parties, and an action of -this kind (_i. e._, against a surgeon for malpractice) comes within -this class. In such actions the Judge should |77| firmly assume the -responsibility of determining himself whether sufficient evidence has -or has not been given to compel him to leave the case to the jury” [186]. - -Medical writers speak strongly against such actions. One says, “In -the majority of cases these actions are the direct offspring of envy, -hatred, malice and all uncharitableness, and when, rocked in the -cradle of calumny and nursed by the hand of speculation, injury is -often inflicted upon the character of the physician, who is at the -same time left without any proper remedy at law. The effect, also, of -such suits upon the public mind is apt to be pernicious, for success -in obtaining damages often stimulates others into a repetition of -the experiment, and the physician consequently practises his art -in chains, being perpetually exposed to the risk of a suit, which -may ruin his reputation as well as his fortune. It becomes lawyers, -therefore, to consider, when called upon to institute such suits, that -little value can be placed on the _ipse dixit_ of a layman sitting as -critic upon the professional conduct of a physician. And that, aside -from such personal delinquencies as drunkenness, or gross negligence, -cruelty towards, or abandonment of his patient, the field in which the -physician discharges his professional duties is practically _terra -incognita_ to the unlearned, and one where no lay critic can follow -him” [187]. - -The same critic points out that the majority of suits for malpractice -have been brought against surgeons and not against physicians. -“Failure is rarely excused in a surgeon. He is expected to be an -adroit medical carpenter who, with knife and saw and splint, can so -re-construct the fractured or disjointed members of the human body as -to leave no mark or line as evidence of their previous |78| disruption. -On the other hand, the physician, enshrined within the penetralia -of his mystic art, and mounted upon a Delphic tripod, inaccessible -to vulgar criticism, pronounces his diagnosis and formulizes his -prescriptions with unquestioned judgment. His diagnosis may be faulty, -his medicines ill-selected, or ill-timed in their administration, and -still no blame be incurred by him for any evil consequences that may -ensue. For who will presume to say, in case of the patient’s death, -that he had not naturally reached that last illness foreordained to -all men, and of which the physician’s unsuccessful treatment is only -official testimony? Who knows, in fact, when a man has reached his last -illness until he dies? * * * And, as a corollary to this, strange as it -may seem, one might, through unskilfulness, sacrifice a human life with -more impunity than he could mutilate or deform a toe or a finger” [188]. - -The question of the amount of damages for personal injuries arising -from malpractice is one resting a good deal in the discretion of the -jury, and must of necessity be more or less uncertain. The party must -recover all his damages, present and prospective, in one action. -If the damages are so excessive as to strike all mankind, at first -blush, as beyond all measure unreasonable and outrageous, and such as -manifestly show the jury to have been actuated by passion, partiality, -corruption, or prejudice, the court will grant a new trial. Sometimes, -however, courts have granted new trials for excessive damages where the -excessiveness has fallen short of this. - -In considering what should be taken into account by a jury estimating -the amount of damages to be awarded, the American courts have held, -that the loss of time caused by the injury is to be considered [189]. -Also, the age and |79| situation in life of the injured one, -the expenses incurred, the permanent effect upon the plaintiff’s -capacity to pursue his professional calling, or to support himself as -beforetimes, are essential factors [190]. - -Bodily pain, too, is to be considered and compensated for; and so much -of mental suffering as may be indivisibly connected with it; but mental -anguish and agony cannot be measured by money—the courts consider—and -there is no established rule authoritatively commanding such a futile -effort [191]. In fact, the courts say, that one should get compensation -for all the injuries that are the legal, direct, and necessary results -of the malpractice [192]. - -The late case of _Phillips_ v. _The South Western Railway Company_ -fully enunciates what, in the estimation of the English Judges, are -to be considered in fixing the damages. Cockburn, C.J., said, that -the heads of damages were the bodily injuries sustained, the pain -undergone, the effect on the health of the sufferer, according to -its degree and its probable duration as likely to be temporary or -permanent, the expenses incidental to attempts to effect a cure, -and the pecuniary loss sustained through inability to attend to -a profession or business [193]. In the Court of Appeal, Bramwell, -L.J., remarked, “You must give the plaintiff a compensation for -his pecuniary loss, you must give him compensation for his pain and -bodily suffering. Of course, it is almost impossible to give an -injured man what can be strictly called compensation, but you must -take a reasonable view of the case, and must consider, under all the -circumstances, what is a fair amount to be awarded to |80| him” [194]. -Phillips, who was a physician of middle age and robust health, making -£5,000 a year, was so injured by a railway company, that he was totally -unable to attend to his business; his life was a burden and a source of -utmost pain, and the probability was that he would never recover. The -jury gave him £16,000, and the court refused to consider it excessive. - -A physician, who has received personal injuries, may recover damages -for loss of business as a physician, although he has not such a -degree as would entitle him to maintain an action for professional -services [195]. The value of the fees which he would have received -without suit may be estimated. - -An action cannot be maintained against the representatives of a -deceased surgeon to recover damages arising from the unskilful -treatment of a patient. Such actions do not survive [196]. - -A medical practitioner who causes the death of a patient by such -malpractice or negligence as would have entitled the patient (if death -had not ensued) to maintain an action and recover damages against him -in respect of the injury sustained thereby, is liable to an action for -damages, notwithstanding the death of the patient, and although the -circumstances under which the death was caused amount to felony. Such -action may be brought for the benefit of the wife, husband, parent -and child of the deceased, and the jury may give such damages as they -may think proportioned to the injury resulting from such death to the -parties respectively for whom and for whose benefit such |81| action -is brought; but such injury must be a pecuniary loss, and the jury may -not give damages as a _solatium_ [197]. In some of the American cases -the mental anguish caused by the injury has been taken into account in -estimating the damages to be given [198]. - -Not more than one action, however, will lie for and in respect of -the same subject-matter of complaint, and every such action must be -commenced within twelve months after the death of the person injured. - - - - -|82| - -CHAPTER VI. - -CRIMINAL MALPRACTICE. - - -Whenever death ensues as the alleged consequence of malpractice it -becomes necessary to inquire into the conduct of the physician, so as -to determine how far his want of skill, or negligence, has conspired -to produce it. The offence may, under certain circumstances indicating -a wanton and malicious disregard of human life, amount to murder. Of -course, a medical practitioner who should intentionally, and with -malice, cause the death of a patient, would be held guilty of this -crime; but in no case will an indictment for murder lie, unless there -be a felonious destruction of life, with malice either express or -implied. If a patient die from want of competent skill or sufficient -attention the practitioner is guilty of manslaughter [199]. “If one -that is of the mystery of a physician take upon him the cure of a -man, and giveth him such physic so as he dieth thereof, without any -felonious intent and against his will, it is no homicide.” So saith my -Lord Coke. Blackstone says, “This is neither murder nor manslaughter, -but misadventure, and he shall not be punished criminally.” On the -one hand, we must be careful and most anxious to prevent people from -tampering in physic so as to trifle with the life of man; and on the -other hand, we must take care not to charge criminally a person who is -of general skill because he has been unfortunate in a particular case. -It is God who gives, man only administers, medicine; and the medicine -|83| that the most skilful may administer may not be productive of -the expected effect; but it would be a dreadful thing if a man were to -be called in question, criminally, whenever he happened to miscarry in -his practice. It would be most fatal to the efficiency of the medical -profession if no one could administer medicine without a halter round -his neck [200]. - -At one time it was held, that if one, not a regular physician or -surgeon, should administer a medicine or perform an operation with a -fatal effect, it would be manslaughter at the least; but long since, -by Sir Matthew Hale, (one of the greatest Judges that ever adorned the -English Bench), this doctrine was questioned [201]. Now, however, both -in England and America, it is well settled that it makes no difference -whether the party be a regular practitioner or not; if he, _bona fide_ -and honestly exercising his best skill to cure a patient, performs an -operation or administers a medicine which causes the patient’s death -he is not guilty of manslaughter. “God forbid,” saith Lord Hale, “that -any mischance of this kind should make a person not licensed, guilty -of murder or manslaughter. This doctrine, that if any one dies under -the hand of an unlicensed physician, it is felony, is apochryphal and -fitted, I fear, to gratify and flatter doctors and licentiates in -physic; though it may have its use, to make people cautious and wary -how they take upon themselves too much, in this dangerous employment.” -Hullock, B., remarked that it would be most dangerous for it to get -abroad that if an operation should fail the surgeon would be liable to -be prosecuted for manslaughter. And as to making a difference between -regular and irregular practitioners the same learned Judge aptly put -it, “in remote parts of the country many persons would be left to die -if |84| irregular surgeons were not allowed to practise.” Or as another -Judge put it, we should have many of the poorer sort of people die for -want of help, lest their intended helpers might miscarry [202]. - -Lord Lyndhurst agrees with the rule, but makes an exception. He says, -“I agree that in these cases there is no difference between a licensed -physician or surgeon and a person acting as a physician or surgeon -without a license. In either case if a party having a competent degree -of skill and knowledge makes an accidental mistake in the treatment -of a patient, through which mistake death ensues, he is not thereby -guilty of manslaughter; but if, where proper medical assistance can be -had, a person, totally ignorant of the science of medicine, takes on -himself to administer a violent and dangerous remedy to one labouring -under disease, and death ensues in consequence of that dangerous remedy -having been so administered, then he is guilty of manslaughter.” Webb, -a publican, had given large doses of Morrison’s pills to one ill of -small-pox [203]. - -“If any one, whether he be a regular or licensed medical man or not, -professes to deal with the life or health of others, he is bound to -have competent skill to perform the task that he holds himself out to -perform, and he is bound to treat his patient with care, attention -and assiduity;” and if the patient dies for want of either, the -practitioner is guilty of manslaughter. “Every person who enters -into a learned profession undertakes to bring to the exercise of it -a reasonable degree of care and skill” [204]. And if a medical man, -though lawfully qualified to act as such, cause |85| the death of -a person by the grossly unskilful or grossly incautious use of a -dangerous instrument, he is guilty of manslaughter. No one is justified -in making use of an instrument, in itself a dangerous one, unless he -does so with a proper degree of skill and caution [205]. There must be -competent knowledge and care in dealing with a dangerous drug; if a man -is ignorant of the nature of the drug he uses, or is guilty of gross -want of care in its use, it would be criminal culpability [206]. In -Iowa, it was held that one assuming to act as a physician, who treats a -patient in good faith and to the best of his ability, is not criminally -responsible for the death of his patient, caused by the medicine he -administers [207]. - -“To substantiate the charge of manslaughter, the prisoner must have -been guilty of criminal misconduct, arising either from the grossest -ignorance, or the most criminal inattention; one or other of these -is necessary to make him guilty of that criminal negligence and -misconduct which is essential to make out a case of manslaughter.” -Thus Lord Ellenborough laid down the law in the case of a man midwife -who was on his trial for murder by malpractice [208]. Long since in -the _Mirror_ [209] it was said, “If physicians or chirurgeons take -upon them a cure, and have no knowledge or skill therein, or if they -have knowledge, if nevertheless they neglect the cure, or minister -that which is cold for hot, or take little care thereof, or neglect -due diligence therein, and especially in burning and cutting off -members, which they are forbidden to do, but at the peril of their -patient; if their patients die or lose their members, in such cases -they are manslayers or mayhemdors.” Park, J., |86| charged the -jury very similarly in one of St. John Long’s celebrated cases. -“If,” said his Lordship, “you think there was gross ignorance or -scandalous inattention in the conduct of the prisoner, then you will -find him guilty; if you do not think so, then your verdict will be -otherwise” [210]. - -Wharton considers that the position assumed by Lord Ellenborough -depends upon the honesty and _bona fides_ of the practitioner; and -that if he is pursuing a plan of bold imposture the law would be -otherwise [211]. - -In Long’s case, Baron Garrow said, “I make no distinction between the -person who consults the most eminent physician and the cases of those -whose necessities or whose folly may carry them into any other quarter. -It matters not whether the individual consulted be the President of -the College of Surgeons, or the humblest bone-setter of the village; -but, be it one or the other, he ought to bring into the case ordinary -skill and diligence. I am of opinion that if a person who has ever so -much or so little skill sets my leg and does it as well as he can and -does it badly, he is excused; but, suppose the person comes drunk, -and gives me a tumbler full of laudanum, and sends me into the other -world, is it not manslaughter? And why is that? Because I have a right -to have reasonable care and caution.” In a subsequent case against the -same practitioner, Bayley, B., said to the jury, “I have no hesitation -in saying for your guidance, that if a man be guilty of gross neglect -in attending to his patient after he has applied a remedy, or of gross -rashness in the application of it, and death ensues in consequence, he -will be liable to a conviction for manslaughter.” “I consider rashness -will be sufficient to make it manslaughter. As, for instance, if I have -the toothache, and a person undertakes to cure it by |87| administering -laudanum, and says, ‘I have no notion how much will be sufficient,’ but -gives one a cupful, which immediately kills; or if a person prescribing -James’ powder says, ‘I have no notion how much should be taken,’ and -yet gives one a tablespoonful, which has the same effect; such persons, -acting with rashness, will, in my opinion, be guilty of manslaughter. -A prosecution is for the public benefit, and the willingness of the -patient cannot take away the offence against the public” [212]. - -The matter has been well put in a Missouri case. “If,” said the Judge, -“the party prescribing has so much knowledge of the fatal tendency -of the prescription that it may reasonably be presumed that he -administered the medicine from an obstinate and wilful rashness, and -not from an honest intention and expectation of effecting a cure, he -is guilty of manslaughter at least, though he might not have intended -any bodily harm to the patient” [213]. It is the presence of intention -which determines the moral complexion of an action, and whenever this -intention (always presumed to be good) is proved to be bad, then, and -then only, does a physician become criminally responsible for his -wrongdoings. Doubtless, a bad intention may be at times inferred from -the character of the misconduct; and neglect, particularly when gross, -may be classed among those reasons which justify such an inference [214]. - -What the law deems gross negligence has been thus defined in a case -where a “Herbalist” was on trial for manslaughter, for the death of a -patient through an overdose of colchium seeds and brandy for a cold. -“Gross negligence might be of two kinds; in one sense, where a man, for -instance, went hunting, and neglected his patient, |88| who died in -consequence. Another sort of gross negligence consisted in rashness, -where a person was not sufficiently skilled in dealing with dangerous -medicines which should be carefully used, of the properties of which he -was ignorant, or how to administer a proper dose. A person who, with -ignorant rashness, and without skill in his profession, used such a -dangerous medicine, acted with gross negligence. It was not, however, -every slip that a man might make that rendered him liable to a criminal -investigation. It must be a substantial thing. If a man knew that he -was using medicines beyond his knowledge and was meddling with things -above his reach, that was culpable rashness. Negligence might consist -in using medicines in the use of which care was required, and of the -properties of which the person using them was ignorant. A person who so -took a leap in the dark in the administration of medicines, was guilty -of gross negligence. If a man was wounded and another man applied to -his wound sulphuric acid, or something which was of a dangerous nature, -and ought not to be applied, and which led to fatal results, then the -person who applied this remedy would be answerable, and not the person -who inflicted the wound, because a new cause had supervened. But, if -the person who dressed the wound applied a proper remedy, then, if -a fatal result ensued, he who inflicted the wound remained liable.” -In these words Willes, J., charged the jury, and they, after a long -deliberation, brought in a verdict of “not guilty” [215]. And in the -very recent case of _State_ v. _Hardister_ [216], it was held that a -physician is criminally liable for his gross ignorance causing the -death of his patient, but not for a mere mistake of judgment. - -However, in the celebrated case against the father and founder of the -botanic or steam system of medicine, whose |89| favorite remedies -were coffee, “well-my-gristle,” and “ram cats,” it was held, that -if a person assuming to be a physician, through gross ignorance, -but honestly and _bona fide_, administers medicine which causes the -death of the patient, he is not guilty of manslaughter [217]. This was -in the year 1809; and the doctrine laid down was followed in 1844 -in Missouri in an exactly similar case [218]. And quite recently in -Iowa, where one Shulz was tried for manslaughter because his patient -died under the Baunscheidt practice, _i. e._, pricking the body and -rubbing in a certain kind of oil, the Court on review said: “In 2 -Bishop’s Criminal Law, (4th Ed.) sec. 695, the law upon this subject is -declared as follows: ‘From the relationship of physician and patient -the death of the latter not unfrequently arises. On this subject the -doctrine seems to have been held that whenever one undertakes to cure -another of disease or to perform on him a surgical operation, he -renders himself thereby liable to the criminal law, if he does not -carry to his duty some degree of skill, though what degree may not be -clear; consequently, if the patient dies through his ill-treatment, -he is indictable for manslaughter. On the other hand, a more humane -doctrine is laid down, that since it is lawful and commendable for -one to cure another, if he undertakes this office in good faith and -adopts the treatment he deems best, he is not liable to be adjudged -a felon, though the treatment should be erroneous, and in the eyes -of those who assume to know all about this subject, which in truth -is understood by no mortal, grossly wrong, and though he is a person -called, by those who deem themselves wise, grossly ignorant of medicine -and surgery. The former doctrine seems to be the English one, and so -in England a person, whether a licensed medical practitioner or not, -who undertakes to deal with the life or health of |90| people, is bound -to have competent skill or suffer criminally for the defect. Now, if -a man thinks he has competent skill, and makes no misrepresentation -to his patients concerning the amount or kind of medical education -actually received by himself, he seems in reason to stand on exactly -the foundation occupied by every person who honestly undertakes -medical practice after full advantages, so far as concerns his state -of mind, and it is the mind to which we look in questions of legal -guilt. Any person undertaking a cure, but being grossly careless and -thus producing death, is for a different reason liable to a charge of -manslaughter, whether he is a licensed practitioner or not.’ These -cases seem to us to announce a correct rule. The interests of society -will be subserved by holding a physician civilly liable in damages for -the consequences of his ignorance, without imposing upon him criminal -liability when he acts with good motives and honest intentions” [219]. - -If the death of a man has been accelerated by the want of due skill -and competency, or by the carelessness, of his physician, the latter -cannot defend himself by proving that his patient was afflicted with -a mortal disease [220]. If a man who has received a serious wound is -placed under the charge of a surgeon who, in probing the wound or -otherwise operating on the patient, immediately causes his death; -then, if the surgeon has acted negligently, or maliciously, he is -indictable for the homicide, and the original assailant only for an -attempt. But, if the surgeon using due skill and care occasions death -while he is endeavouring to heal the wound, then he who inflicted -the wound is chargeable with the death; for he who does an unlawful -act is responsible for all the consequences that in the ordinary -course of events flow from it. It is an ordinary consequence of a -wound that a surgeon should be called in to attend to it, |91| and -it is a necessary incident of surgery that patients should die under -the knife. It is no defence, where a death is not shewn to have been -produced by the medical attendant’s negligence, that the deceased -might have recovered if a higher degree of professional skill had been -employed [221]. - -If a person is assailed by a fatal disease, and there is no escape -from it, save by a dangerous surgical operation, then, if he gives his -free and intelligent consent to the operation, and it is skilfully -performed, the surgeon cannot be blamed even though the patient perish -under the knife. The German Jurists go still further and say, suppose -a dangerous operation is required as the last hope of resuscitating an -unconscious person; if the operation is performed with the skill usual -to surgeons under such circumstances, and death ensue, the surgeon is -blameless [222]. If a woman is in such a state of labor that her life -can only be preserved by the sacrifice of that of the child, then -it is not only the right but the duty of the attendant to save the -mother at the expense of the babe. Wharton says that this position is -indisputable [223]. - -From the leading cases the following propositions may be extracted, say -Wharton and Stillè, sec. 1063. - -1. If the defendant acted honestly and used his best skill to cure, and -it does not appear that he thrust himself in the place of a competent -person, it makes no difference whether he was at the time a regular -physician or surgeon, or not. - -2. To constitute guilt, gross ignorance or negligence must be proved. -|92| - -3. A defendant who, with competent knowledge, makes a mistake in a -remedy is not answerable, but it is otherwise when a violent remedy, -shewn to have occasioned death, is administered by a person grossly -ignorant but with average capacity, in which case malice is presumed in -the same way that it is presumed when a man _compos mentis_ lets loose -a mad bull into a thoroughfare, or casts down a log of wood on a crowd. - -4. Where competent medical aid can be had, the application of violent -remedies by an ignorant person, though with the best motives, involves -him in criminal responsibility. - -5. Express malice, or an intent to commit a personal or social wrong, -makes the practitioner criminally responsible in all cases of mischief. - -These well known writers say, that according to Caspar and Böcker, in -the treatment of internal diseases, the physician can never be held -guilty of criminal carelessness for failing to use any particular -remedy, since there is never any remedy upon which all authorities are -agreed, and since it is always possible the patient may recover without -the use of such remedy [224]. - - - - -|93| - -CHAPTER VII. - -PROFESSIONAL EVIDENCE. - - -It was decided nearly one hundred years ago, in the Duchess of -Kingston’s case, that a medical man has no privilege to avoid giving in -evidence any statement made to him by a patient, but that he is bound -to disclose, when called upon to do so in a court of justice, every -communication, however private and confidential, which has been made to -him by a patient while attending him in a professional capacity [225]. -This has often been deemed a grievance by medical men, and considered -a compulsory breach of professional ethics; for the relations between -patient and physician, being necessarily of a confidential character, -communications made to a physician are looked upon, by the profession, -as confessions which should be kept religiously locked in the brain of -the physician. Lord Mansfield said, “If a medical man was voluntarily -to reveal those secrets, to be sure he would be guilty of a breach of -honour and of great indiscretion, but to give that information which by -the law of the land he is bound to do will never be imputed to him as -any indiscretion whatever” [226]. - -A French writer says, the tribunals neither ought, nor have they the -power, to exact from a physician the revelation of a secret confided to -him because of his office; at all events, he may and ought to refuse -to tell. Religion, |94| probity, nay, the rights of society, make -this the law. Still more are we bound to secrecy when not compelled -to disclose. Upon this point casuists and jurisconsults are of one -opinion [227]. - -These communications between physician and patient, which may relate -to the history of a transaction in which a wound has been received, -or a particular disease communicated, whenever essential to the -treatment of the patient’s case, are in some States of the American -Union considered privileged communications, which the physician is -either expressly forbidden, or not obliged, to reveal. This is the -law in Arkansas, California, Indiana, Michigan, Iowa, Missouri, -Minnesota, Montana, New York, Ohio and Wisconsin. In Wisconsin he is -not compelled, and in the other States named he is not allowed to make -the disclosure; but in Minnesota the prohibition extends only to civil -cases; and in Iowa, Indiana and Minnesota, the seal can be removed by -the patient himself. In these States the confession, in order to be -protected against disclosure, must relate exclusively to such matters -as are indispensable to the professional treatment of the patient. -Communications made outside of this sphere acquire no immunity from -having been entrusted to physicians, for at common law such are not -deemed privileged, and wherever so recognized they are the creatures of -statutory enactment [228]. - -As stated, in some of the above-mentioned States, the party interested -may waive the privilege, in which case the communication may be -disclosed [229]. But in New York it is expressly enacted that “no -person duly authorized to practise physic, or surgery, shall be allowed -to disclose any information which he may have acquired in attending any -|95| patient in a professional character, and which information was -necessary to enable him to prescribe for such patient as a physician, -or to do any act for him as a surgeon” [230]. - -Yet, even there, the statute will not be construed so as to shield -a person charged with a crime, instead of being a protection to the -victim, the patient [231]. - -The seal upon the physicians lips is not taken away by the patient’s -death [232]. - -Necessarily all communications to be privileged must be of a lawful -character, and not against morality or public policy; hence a -consultation as to the means of procuring an abortion on another is -not privileged; nor, by parity of reason, would any similar conference -which was held for the purpose of devising a crime or evading its -consequences [233]. - -It must appear not only that the information was acquired during -professional attendance, but was such as was necessary to enable the -physician to prescribe. It is for the party objecting to shew that the -information sought to be obtained is within the statutory exclusion. -“It will not do to extend the rule of exclusion so far as to embarrass -the administration of justice. It is not even all information which -comes within the letter of the statute which is to be excluded. The -exclusion is aimed at confidential communications of a patient to -his physician, and also such information as a physician may acquire -of secret ailments by an examination of the person of his patient. -The policy of the statute is to enable a patient, without danger of -exposure, to disclose to his physician all |96| information necessary -for his treatment. Its purpose is to invite confidence and to prevent -a breach thereof. Suppose a patient has a fever, or a fractured leg or -skull, or is a raving maniac, and these ailments are obvious to all -about him, may not the physician who is called to attend him testify -to these matters?” “Before information sought to be obtained from -physicians, witnesses, can be excluded the court must know somewhat of -the circumstances under which it was acquired, and must be able to see -that it is within both the language and the policy of the law” [234]. - -A report of the medical officer of an insurance company on the health -of a party proposing to insure his life is not privileged from -production; nor is the report of a surgeon of a railway company, as to -the injuries sustained by a passenger in an accident, unless such a -report has been obtained with a view to impending litigation [235]. - -Representations made by a sick person of the nature and effects of the -malady under which he is suffering are receivable as original evidence, -whether made to a physician or to any other; though, if made to a -physician, they are entitled to greater weight than if made to a man -incapable of forming a correct judgment respecting the accuracy of the -statements, from unacquaintance with the symptoms of diseases [236]. -When the bodily or mental feelings of a party are to be proved, his -exclamations or expressions indicating present pain or malady are -competent evidence [237]; and |97| the complaints and statements of -the injured party, if made at the very time of the occurrence, are -admissible as _res gestæ_, not only as to the bodily suffering, but -as to the circumstances of the occurrence; and the time in question -is not the time of injury, but the time when it is material to prove -a condition of bodily or mental suffering, and that may be material -for weeks, and perhaps months, after an injury has been inflicted. -The statements are admissible even though made after the commencement -of an action, though this may be a circumstance to detract from the -weight of the evidence of a physician, so far as it was founded on -the statements [238]. But statements or declarations of a sick or -injured person, referring to his state and condition at a time past, -and not furnishing evidence of a present existing malady, are to be -carefully excluded, whether made to an expert or a non-expert [239], -and statements in writing by patients to a medical man, describing -the symptoms of the illness upon which the physician has advised the -patient, are also inadmissible in evidence [240]. It has been said in -Illinois, that as a physician must necessarily, in forming his opinion, -be, to some extent, guided by what the sick person may have told him in -detailing his pains and sufferings, not only the opinion of the expert, -founded in part upon such data, is receivable in evidence, but that he -may state what the patient said in describing his bodily condition, if -said under circumstances which free it from all suspicions of being -spoken with reference to future litigation and give it the character of -_res gestae_ [241]. |98| - -On the other hand, in Massachusetts, in an action for personal -injuries, a surgeon who had attended plaintiff was held competent to -testify as to plaintiff’s condition from what he saw, but not from -anything the patient told him [242]. A physician testified that the -plaintiff stated she had received a blow in the stomach. The Court said -that it would clearly have been competent for the physician, after -having testified to the plaintiff’s condition and to the complaints -and symptoms of pain and sufferings stated by her, to have given his -opinion that they were such as might have been expected to follow -the infliction of a severe blow. But it was not competent for the -physician to testify to her statement that she had received a blow in -her stomach [243]. And in Tennessee, the statement made by a man when -his wounds were being examined, as to who made them, or as to the -instrument with which they were inflicted, was deemed inadmissible [244]. - -Memoranda, although not legal instruments in the proper sense of the -term, have been considered as an inferior class of records, and as -such entitled to some standing in courts. Such minutes of past facts -may be used by experts while under examination, but only to refresh -their memory, and not to take its place. For this purpose they may use -written entries in note books, or even copies of them, provided always -they can swear to the truth of the facts as there stated. Yet, if they -can not from recollection speak to the fact any farther than as finding -it stated in a written entry, their testimony will amount to nothing. -It is not necessary that the writing should have been made by the -expert himself, nor even that it should be an original |99| writing, -provided, after inspecting it, he can testify to the facts from his own -recollection [245]. - -The English and American authorities agree that medical, or other -scientific books, are not competent evidence in courts of law; they -cannot be put in evidence, although the medical witnesses state that -such books are works of authority in medicine. Tindal, C.J., thought -that witnesses might be asked whether in the course of their reading -they had found such-and-such a rule laid down; they might be asked how -far their opinion was founded on books, and might refer to such books; -they might be asked their judgment on the point, and the grounds of -it, which may be in some degree founded on these books, as a part of -their general knowledge, but the book itself could not be read. And -as late as 1875, Mr. Justice Brett refused to allow Taylor’s Medical -Jurisprudence to be read to the jury, saying: “That is no evidence in -a court of justice. It is a mere statement by a medical man of hearsay -facts of cases at which he was, in all probability, not present. I -cannot allow it to be read.” And the refusal seems to be the rule in -England. And Redfield, C.J., says, that when objected to, these books -have not generally been allowed to be read in the United States, either -to the Court or jury. And a very recent writer says, “The result of the -cases on this subject shews clearly that the very decided weight of -authority is against the admissibility in evidence of standard medical -treatises.” Such is the rule in England, Ontario, Indiana, Maine, -Maryland, Massachusetts, Michigan, North Carolina, Rhode Island and -Wisconsin, supported by _dicta_ in California and New Hampshire, and -opposed by decisions in Alabama and Iowa [246]. |100| - -In Iowa and Wisconsin such books have been allowed to be read, the -Court in one case remarking, “The opinion of an author, as contained -in his works, we regard as better evidence than the mere statement of -those opinions by a witness, who testifies as to his recollection of -them from former reading. Is not the latter secondary to the former? -On the whole, we think it the safest rule to admit standard medical -books as evidence of their opinions upon questions of medical skill or -practice involved in the treatment.” In Wisconsin, however, the court -seems now to have overruled its earlier decisions, and to have sided -with the majority [247]. - -In Illinois, a witness may, to test his knowledge, be cross-examined -as to his reading of particular authors upon the subject, and as to -whether reputable writers do not entertain certain views upon the -subject. Paragraphs from standard authors, treating of the disease in -question, may be read to the witness, and he may be asked if he agrees -therewith, as one of the means of testing his knowledge; but care -should be taken by the court to confine such cross-examination within -reasonable limits, and to see that the quotations read are fairly -selected so as to present the author’s views. Mr. Rogers questions the -wisdom of this decision [248]. The witness, however, cannot read from a -scientific work in his examination in chief, though he be an expert and -agree with the views expressed by the author [249]. Nor can a passage -from a book be got before a jury as evidence in an indirect manner, -when it cannot be read to them. So it was decided where a medical man -was asked if he was acquainted with a certain book; he replied, that he -had heard of it, but had not read it. He was then asked |101| whether -it was considered good authority, and he said it was. He was then asked -to read a certain paragraph; this he did, and was re-called. Counsel -then read from the book the same paragraph and asked if such a case as -that stated was reported. Held to be error [250]. And in Ontario it has -been held improper to ask medical witnesses, on cross-examination, what -books they consider best upon the subject in question, and then to read -such books to the jury; but they may be asked whether such books have -influenced their opinion [251]. - -Although, as a rule, scientific books cannot be read to a jury as -evidence, they may be read to discredit the testimony of experts, who -claim to be familiar with them and refer to them as authority. Where -one borrows credit for his accuracy, by referring to books treating of -the subject, and by implying that he echoes the standard authorities, -the book may be resorted to, to disprove the statement of the witness, -and to enable the jury to see that the book does not contain what -he says it does, and thus to disparage the witness, and hinder the -jury from being imposed upon by a false light [252]. It has been held -again and again that scientific books cannot be read by counsel to -the jury as a part of their argument. Shaw, C.J., of Massachusetts, -says, “Facts or opinions cannot be laid before the jury, except by -the testimony under oath of persons skilled in such matters.” Again, -“where books are thus offered (_i. e._, to be read in argument), they -are, in effect, used as evidence, and the substantial objection is, -that they are statements wanting the sanction of an oath; and the -statement thus proposed is made by one not present, and not liable to -cross-examination. If the same author were cross-examined, and |102| -called to state the grounds of his opinions, he might, himself, alter -or modify it, and it would be tested by a comparison with the opinions -of others. Medical authors, like writers in other departments of -science, have their various and conflicting theories, and often defend -and sustain them with ingenuity. But as the whole range of medical -literature is not open to persons of common experience, a passage may -be found in one book favorable to a particular opinion, when, perhaps, -the same opinion may have been vigorously contested, and, perhaps, -triumphantly overthrown, by other medical authors, but authors whose -works would not be likely to be known to counsel or client, or to -Court or jury. Besides, medical science has its own nomenclature, its -technical terms and words of art, and also common words used in a -peculiar manner, distinct from the received meaning in the general use -of the language. From these and other causes, persons not versed in -medical literature, though having a good knowledge of the general use -of the English language, would be in danger, without an interpreter, -of misapprehending the true meaning of the author. Whereas a medical -witness could not only give the fact of his opinion, and the grounds on -which it is formed, with the sanction of his oath, but would also state -and explain it in language intelligible to men of common experience. -If it be said that no books should be read, except works of good -and established authority, the difficulty at once arises as to the -question, what constitutes “good authority?” [253]. - -In an English case, counsel, in addressing the jury, attempted to quote -from a work on surgery; Alderson, B., would not allow him, saying, -“You surely cannot contend that you may give the book in evidence, -and if not, what right have you to quote from it in your address, and -do that indirectly which you would not be permitted to do in |103| -the ordinary course?” In Massachusetts, North Carolina, Michigan, -California and New York, similar decisions have been given [254]; and -in giving the dissenting opinion in _State and Hoyt_ [255], Loomis, J., -said, “Books may be crazy as well as men, and all sorts of theories -relative to responsibility for crime are advocated in books. Courts do -not take judicial notice of standard medical or scientific works, and -the standard works of to-day may not long continue such, owing to new -discoveries and advancing knowledge.” In this case the question was -as to reading medical books on insanity on trials where the question -of insanity arose; the book was Ray’s “Medical Jurisprudence of -Insanity.” In a still later case [256], it was held to have been error -for the attorney, on the argument, to read to the jury extracts from -Browne’s “Medical Jurisprudence of Insanity.” The Court said, that it -is peculiarly important that a defendant charged with a crime should be -confronted by the expert witnesses against him, and that they should be -cross-examined in his presence. But when the opinions of a writer are -permitted to go to the jury, the writer is not sworn or cross-examined. -If held admissible the question (of insanity) may be tried, not by the -testimony, but upon excerpts from works presenting partial views of -variant and perhaps contradictory theories [257]. - -In Connecticut, however, in a murder case the Court (Loomis, J., and -Park, C.J., out of the five Judges dissenting,) held, that standard -medical works on insanity might be read to the jury by the counsel for -the accused, when |104| discussing the question of his insanity. It -was said that “in this jurisdiction (that of Connecticut) for a long -series of years counsel have been permitted to read to the jury, as -a part of their argument upon this part of their case, extracts from -such treatises as by the testimony of experts have been accepted by -the profession as authority upon that subject, such treatises as have -helped to form the opinion expressed by the expert. The practice by -repetition has hardened into a rule” [258]. In Indiana, it was held that -if the extracts were merely argumentative and contained no opinions -that could be regarded as properly matters of evidence, they might be -admitted, subject to the instructions of the Court as to the law of -the case and under the warning that they were not evidence. In Texas -and in Delaware, similar decisions have been given [259]. And in Ohio, -where, at the trial of a cause, counsel was forbidden to read to the -jury Youatt’s work on Veterinary Surgery, the Court, on appeal, said, -“It is not to be denied, but that a pertinent quotation or extract from -a work on science or art, as well as from a classical, historical, or -other publication, may, by way of argument or illustration, be not only -admissible, but sometimes highly proper, and it would seem to make no -difference whether it was repeated by counsel from recollection or -read from a book. It would be an abuse of this privilege, however, -to make it the pretence of getting improper matter before the jury -as evidence in the cause.” As it did not appear that the proposed -quotation was relevant or came within the appropriate and legitimate -scope of the argument, or that the party was injured by its exclusion, -the Court would not reverse on this ground [260]. Where the reading -is allowed, it seems to be considered “a valuable privilege, yet so -susceptible of abuse, that the |105| extent and manner of its exercise -must be entrusted in a great measure to the sound discretion of the -Court;”—“not a practice ever sanctioned directly or indirectly by the -Court, nor one which has generally been considered by the Judges as of -binding force in law, but rather as subject to the discretion which, it -is true, has been usually exercised in favor of the accused in capital -trials” [261]. - -Where the exclusion rule obtains, counsel in addressing the jury has -no right to quote the opinions of medical men as given in their works; -if they do, it is the duty of the Court to instruct the jury that such -books are not in evidence but theories simply of medical men [262]. But -there is no question that, under all circumstances, books of science -may be read in argument to the Court. - -Medical men are often called to give evidence as to dying declarations -where there is a charge of homicide, and where the cause of the death -of the declarant is the subject of the declaration. They should -remember that the declaration will not be admissible unless the -deceased was conscious of approaching death and made it under a sense -of his impending doom; any hope of recovery, however slight, renders -the declaration inadmissible; and the question turns rather upon the -expectation of death at the time of making the declaration than upon -the interval between it and the death [263]. - -An entry made by a medical man, in the course of his profession, is -admissible in evidence after his death, if it be against his interest; -and such an entry will be received as evidence of collateral and -independent matter, etc. When |106| the question was as to the age -of a child, the book of the accoucheur who attended the mother was -produced; it contained an entry as follows, “W. Fowden, Jun.’s, wife; -_Filius circa hor. 3 post merid. nat._ etc. W. Fowden, 1768, April 22. -_Filius natus_ wife, £1 6s. 1d.; Pd. 25 Oct. 1768.” The word “Paid” -was against the pecuniary interest of the accoucheur, so the entry was -admitted to prove the date of the birth [264]. - -In England the rule is thus laid down as to excluding experts from -the room during the examination of witnesses; “medical or other -professional witnesses, who are summoned to give scientific opinions -upon the circumstances of the case as established by other testimony, -will be permitted to remain in court until this particular class of -evidence commences, but then, like ordinary witnesses, they will have -to withdraw, and to come in one by one, so as to undergo a separate -examination.” A similar rule prevails in Scotland and in the United -States [265]. - -It would seem that the court has power to limit the number of experts -in any case [266]. - -Taylor, in his well-known work on “Medical Jurisprudence,” lays down -many valuable suggestions for the guidance of medical witnesses; -among other things, he says, “In reference to _facts_, a medical -witness must bear in mind that he should not allow his testimony to -be influenced by the consequences that may follow from his statement -of them, or there probable effect on any case which is under trial. -In reference to _opinions_, their possible influence on the fate of -a prisoner should inspire caution in |107| forming them; but, when -once formed, they should be honestly and candidly stated, without -reference to consequences.” “The questions put on either side should -receive direct answers from the medical witness, and his manner should -not be perceptibly different whether he is replying to a question -put by the counsel for the prosecution, or for the defence.” “The -replies should be concise, distinct and audible, and except where -explanation may be necessary, they should be confined strictly to -the terms of the question.” “Answers to questions should be neither -ambiguous, undecided, nor evasive.” “The replies should be made in -simple language, free from technicality.” “A medical witness may, -without any imputation upon his _bona fides_, explain medical points to -counsel, and correct him on medical subjects, when wrong in his views -or statements, but he should avoid even the appearance of prompting -counsel in the conduct of the case.” - - - - -|108| - -CHAPTER VIII. - -MEDICAL EXPERTS. - - -Whenever the subject matter of a legal enquiry is such that, from its -partaking of the nature of a science, art or trade, inexperienced -persons are unlikely to prove capable of forming a correct judgment -upon it without assistance, then the opinions of witnesses possessing -peculiar skill and knowledge in the matters in question are admissible -in courts of justice. And it is only when the matter inquired of -lies within the range of the peculiar skill and experience of the -witnesses, and is one of which the ordinary knowledge and experience -of mankind does not enable them to see what inference should be drawn -from the facts, that the skilled witnesses may supply opinions as their -guide [267]. The rule admitting the opinions of experts in such cases -is founded on necessity, for juries are not selected with any view to -their knowledge of a particular science, art or trade, requiring a -course of previous study, experience or preparation [268]. - -The rule of law on which the giving in evidence the opinion of -witnesses, who know nothing of the actual facts of the case, is -founded, is not peculiar to medical testimony, but is as a general -rule applicable to all cases where the question is one depending on -skill and science in any particular department. . . . In general it -is the opinion of the jury which is to govern, and this is to be -formed upon the |109| proof of the facts laid before them. But some -questions lie beyond the scope of the observation and experience of -men in general, yet are quite within the observation and experience -of those whose peculiar pursuits and profession have brought that -class of facts frequently and habitually under their consideration. -When, therefore, a question arises in a court of justice upon any such -subject, and certain facts are proved by other witnesses, one skilled -in such subject may be asked his opinion as to the character of such -facts; or he may be asked his opinions on certain facts observed by -himself. This is true with regard to any question of science, because -persons conversant with such science have peculiar means, from a larger -and more exact observation and long experience in such department of -science, of drawing correct inferences from certain facts observed by -themselves or testified to by other witnesses. The opinion of such -witnesses is designed to aid the judgment of the jury in regard to the -influence and effects of certain facts which lie out of the observation -and experience of persons in general [269]. These witnesses are called -“experts.” This term seems to imply both superior knowledge and -practical experience in the art or profession. But generally nothing -more is required to entitle one to give testimony as an expert, than -that he has been educated in the particular art or profession; for -persons are presumed to understand questions pertaining to their own -profession or business [270]. - -The practice of admitting the evidence of experts is an old one: in the -Roman Law they are frequently alluded to, and in the earliest Common -Law reports they are spoken of as of established usage. Says Saunders, -J., “and first I grant that if matters arise in our law which |110| -concern other sciences or faculties we commonly apply for the aid of -that science or faculty which it concerns. In a case of mayhem the -defendant prayed the court that the wound might be examined, on which -a writ was issued to the sheriff to cause to come “_medicos chirurgos -de melioribus London. ad informandum Dominum regem et curiam de his quæ -eis exparte Domini Regis injungerentur_ [271].” - -Some Judges and writers have very little respect for the evidence and -opinions of experts. An Iowa Judge says, observation and experience -“teach that the evidence of experts is of the very lowest order, and -of the most unsatisfactory kind.” One from Maine, speaks of “the vain -babblings and oppositions of science so called, which swell the record -of the testimony of experts when the hopes of a party depend rather -upon mystification than enlightenment.” An Illinois Judge quotes a -distinguished occupant of the bench as saying, “if there was any -kind of testimony not only of no value, but even worse than that, it -was in his judgment that of medical experts.” Lord Campbell said, -“Hardly any weight is to be given to the evidence of what are called -scientific witnesses: they come with a bias on their minds to support -the cause in which they are embarked” [272]. Taylor says, “Perhaps -the testimony which least deserves credit with a jury is that of -skilled witnesses. . . . Being zealous partisans their belief becomes -synonymous with faith as defined by the apostle, and it too often is -but the substance of things hoped for, the evidence of things not -seen” [273]. On the other hand, Best says, “It would not be easy to -overrate the value of the evidence given in many difficult and delicate -enquiries, not only by medical men and physiologists, but by learned -|111| and experienced persons in various branches of science, art and -trade” [274]. And many Judges have spoken of the essential aid to courts -and juries rendered by the opinion of the experienced, skilful and -scientific witness who has a competent knowledge of the facts involved. - -When one takes his place as an expert before a court, a legal paradox -is instituted on his behalf, by which he is allowed to testify—not as -to what he knows, but to what he believes or forms an opinion upon, -based necessarily on probabilities of analogy as well as experience. -Nothing is required (in the absence of any statutory provision to the -contrary) to entitle any one to give evidence as a medical witness, -than that he has been educated in the science of medicine; and this he -may be by study without practice, or by practice without study; it is -not necessary that he should be a physician, or have studied for one, -nor be a graduate, nor one licensed to practise, nor need he be or have -been a practitioner [275]. One may be competent to testify as an expert, -although his special knowledge of the particular subject of enquiry -has been derived from the reading and study of standard authorities, -and not from experience or actual observation. But one cannot qualify -himself as an expert in a particular case merely by devoting himself -to the study of authorities for the purposes of that case, when -such reading and study is not in the line of his special calling or -profession and is entered upon to enable him to testify in the case. In -Vermont, however, it has been held that mere education as a physician, -without some practice as such, is insufficient to qualify one as an -expert; and in Arkansas, it is said, that competency must be shewn from -study and experience. In New York, it has been held that one otherwise -qualified, who is |112| a physician and surgeon, may give evidence, -although not in full practice at the time; this fact merely goes to -affect his credit [276]. - -It is not necessary that the physician should have made the particular -disease involved in the enquiry a specialty; medical men of practice -and experience are experts, and their opinions are admissible in -evidence upon questions that are strictly and legitimately embraced in -their profession and practice. If one has made the matter in question a -specialty, doubtless his opinion will be of more value than if he has -not; and it has been said, that one who has devoted himself exclusively -to one branch of his profession cannot give evidence as an expert on -another [277]. For example, one not an oculist may speak as to the cause -of injuries to an eye; one who has not made diseases of the mind a -special study may give his opinion as to the existence of insanity; one -not a practical chemist or analyst, but understanding the practical -details of chemistry and the means of detecting poisons, may testify -as to the tests in the chemical analysis of a stomach, and as to the -tests usually applied to detect poison [278]. The law will even allow a -physician to speak as to the length of time a mule has been suffering -from a disease [279]. But one who has had no experience as to the effect -upon health of illuminating gas cannot testify in relation thereto as -an expert [280]. Nor can one who has for thirty years been exclusively -treating the insane be permitted to testify, as an expert, on |113| -the mental capacity of a person in the last stages of disease, who has -not been previously insane [281]. - -To render the opinion of a witness competent evidence, he must, in -general, be in some way peculiarly qualified to speak on the subject, -and have knowledge not possessed by the mass of persons of ordinary -experience and intelligence [282]. Upon this principle, a priest who had -studied physiology and psychology, in order that he might pass upon -the mental conditions of communicants in his church, and who had so to -decide daily, was permitted to speak as to the mental state of a woman -whom he had attended in her last illness [283]. - -It is a question of fact to be decided at the trial, by the -Court, whether a witness offered as an expert has the necessary -qualification [284]. And the matter cannot be referred to the decision -of the jury. The decision of the Judge at the trial will not be -interfered with by the Court, except in a clear and strong case [285]. - -Any one offered as an expert who cannot establish the fact of special -knowledge or skill, in the particular department which he is called -upon to illuminate, will be rejected. A Court before permitting an -expert to testify may examine him, or hear evidence, to satisfy itself -that the witness is really what he assumes to be [286]. |114| - -“We find no test laid down,” says the Supreme Court of Indiana, “by -which we can determine with mathematical precision just how much -experience a witness must have had, how expert, in short, he must be, -to render him competent to testify as an expert.” But it is for the -Court to decide, within the limits of a fair discretion, whether the -experience of the proposed expert has been such as to make his opinions -of any value; mere opportunities for special observation will not be -deemed sufficient [287]. - -While the Court, or Judge, determines the competency of the witness to -testify as an expert, the weight to be accorded to his testimony is -for the jury to decide. The testimony of an expert is to be weighed -and tested like any other kind of evidence, and is to receive just -such credit as the jury may think it entitled to. It is intended to -enlighten their minds, not control their judgment [288]. The jury are -not bound by the opinions of medical experts: they may weigh their -opinions like any other evidence. They may act against the greater -number of opinions and in favour of the fewer; for the opinion of one -expert may, on account of his greater knowledge and experience on -the subject, or from his giving further details of the case, or more -probable reasons for his opinions, be of greater value to the jury than -the opposite opinions of several [289]. - -Ordronaux holds that a physician, although confessedly possessing the -ordinary experience of his profession, may _quoad_ some particular -problem in medical science not be an expert in the best and most -critical sense of the term. _Non omnes omnia possumus._ Once received -as an expert, |115| the maxim “_Cuilibet in sua arte perito credendum -est_,” must be applied, and he cannot be contradicted by any unskilled -person [290]. - -In 1869, the Chief Justice of the Kentucky Court of Appeal well -said, that “the opinions of experts not founded on science, but on -a mere theory of morals or ethics, whether given by professional or -unprofessional men, are wholly inadmissible as evidence.” Hence the -opinion of even physicians that no sane man in a Christian country -would commit suicide, not being founded on the science or phenomena -of the mind, but rather a theory of morals, religion and future -responsibility, is not evidence [291]. - -In the matter of expert testimony, as in other matters, the law does -not recognize any particular school of medicine to the exclusion of -others. The popular axiom that doctors differ is as true now as ever -it was, and so long as it continues to be so, it is impossible for the -law to recognize any class of practitioners, or the followers of any -particular system, or method of treatment, as exclusively entitled to -be regarded as “doctors” [292]. - -The physician called to give evidence as an expert should understand -at the outset that he is not called to express any opinion upon the -merits of the case, but only on some questions of science raised by -the facts proved; that he has no concern in the issue of the trial, -and that whichever side calls him he is in no wise the witness—much -less the advocate—of that side. He is truly an adviser of the Court, -an _amicus curiæ_, rather than a party interested in the result of the -trial. Balbus in his commentaries on the code says, “_Medici proprie -non sunt testes, sed est magis judicium quam testimonium_.” Experts, -no matter on what |116| they testify, simply supply data, as to -whose competency, relevancy and weight, the Court is to judge, and -as to which the Court is finally to declare the law. Where the facts -testified to by experts are undisputed, and when they are the results -of a particular science or art, with which such experts are familiar, -then the Court accepts such facts, and declares the law that therefrom -springs; where the facts are disputed then the jury is to determine -where the preponderance of proof lies. But when the testimony of the -expert touches either law or speculation, psychology or ethics, then -such testimony is to be received as mere argument, which if admissible -at all is to be treated simply as if addressed to the judgment of the -Court [293]. - -In his examination in chief an expert may not only give his opinion -itself, but also the grounds and reasons of it; in fact it has been -held that it is his duty to state the reasons of his opinion and the -facts on which it is based, and if it is not sustained by them it is -entitled to little weight [294]. - -The opinion of a medical man is admissible upon, the condition of the -human system at any given time; the nature and symptoms of disease; -the nature and effects of wounds; the cause of death; the cause or -effect of an injury; the character of the instrument with which a -wound was produced; the effect of a particular course of treatment; -the likelihood of recovery; the mental condition of a person; and on -similar subjects. For instance, where one was indicted for endeavouring -to procure abortion, the opinion that the woman was pregnant at the -time is relevant [295]. Where the question was whether a certain |117| -blow was sufficient to cause death; or whether a wound and fracture -on the head was caused by a fall; or whether the fractures of the -skull were caused by a gun; or whether a gun-shot wound caused death; -the opinions of physicians were held admissible [296]. The opinion of -medical experts will be received upon the question as to whether an -abortion has been performed, or whether certain drugs are abortives, or -certain instruments adapted to produce an abortion [297]. Experts may -testify, after having made a chemical analysis of the contents of the -stomach, as to the presence of poison in the body; and, without such -analysis of a mixture, a chemist may speak of its ingredients [298]. -Those accustomed to make chemical and microscopic examinations of -blood and blood stains may speak as to whether certain stains are -made by human or other blood. So, too, they may speak as to the ink -in questions as to handwriting [299]. So, too, they may be asked their -opinions touching the permanency of any injury forming the subject of -an action. Also, in an action for damages against a railway company, a -physician may be asked at what period after the injury the plaintiff -would be most likely to improve, if he were going to recover at -all [300]. Where Barber sued Meriam for injury to his wife, and she had -been treated professionally for some weeks by Dr. H., the opinion of -another physician as to the effect of Dr. H.’s treatment was considered -|118| admissible [301]. And so in a case of malpractice a medical man -may be asked whether the practice pursued was good practice [302]. -He may be asked as to the nature and properties of the medicines -employed by another physician in the case in question; also, as to the -practice with regard to consultations; also, whether, in his opinion, a -patient’s death was or was not the result of neglect or want of skill -on the part of the attending physician [303]. But he cannot be asked -his opinion as to the general skill of the physician on trial; nor the -general reputation of the school which the doctor in trouble attended; -nor can he say whether, from all the evidence in the case, the -defendant was guilty of malpractice, for that is the question for the -jury; nor can he say whether a physician has honorably and faithfully -discharged his duty to his professional brethren [304]. - -It has been held that a medical witness may give his opinion upon new -and hitherto unknown cases whenever he swears that he can form such an -opinion, even though at the same time he should admit that precisely -such a case had never before fallen under his observation, nor under -his notice in the books. The man of science is distinguished from the -empiric in nothing more than in not relying on specifics, and also not -waiting for the exact similitudes in things material and immaterial -before forming a judgment as to their similarity [305]. - -It must always be remembered that medical men, when called as skilled -witnesses, may only say what, in their judgment, would be the result -of certain facts submitted to their consideration, and may not give an -opinion as to |119| the general merits of the case, nor on the very -point which the jury has to determine, nor on things with which a jury -may be supposed to be equally well acquainted [306]. - -As a recent writer puts it, a medical man cannot testify as to matters -not of skill in his profession, nor conclusions, nor inferences which -it is the duty of the jury to draw for themselves. For instance, it -was held that in a trial for murder the opinions of the surgeons as -to the probable position of the deceased, when he received the blows -which caused his death, are incompetent. The Judge said that he was -not aware that surgeons were experts in the manner of giving blows -of the description in question, or determining how the head must be -placed so as most conveniently to receive them [307]. Whenever the -subject matter of the enquiry is of such a character that it may be -presumed to lie within the common experience of all men of common -education, moving in ordinary walks of life, the rule is that the -opinions of experts are inadmissible, as the jury are supposed—in all -such matters—to be entirely competent to draw the necessary inferences -from the facts spoken of by the witnesses [308]. Nor was the opinion of -a medical witness admitted where the question, in an action for libel, -was whether a physician in refusing to consult with the plaintiff -had honorably and faithfully discharged his duty to the medical -profession. The Judge said, the jury having all the facts before them -were as capable of forming a judgment upon that point as the witness -himself. Nor can an expert give an opinion of the opinion of another -expert [309]. A medical man is considered an expert on the subject of -the |120| value of medical services [310]. But he is not so considered -when the question is one as to the amount of damages for a breach of -contract not to practise physic in a certain town [311]. - -The rule as to excluding experts from the court room during the -examination of witnesses has been laid down, in England, thus: “Medical -or other professional witnesses, who are summoned to give scientific -opinions upon the circumstances of the case, as established by other -testimony, will be permitted to remain in court until this particular -class of evidence commences; but then, like ordinary witnesses, they -will have to withdraw, and to come in one by one, so as to undergo -a separate examination.” And in the United States the principle is -similarly stated [312]. - - - - -|121| - -CHAPTER IX. - -EXPERTS IN INSANITY CASES. - - -The opinion evidence of medical men in questions of insanity is not, -as a rule, looked upon with any very great degree of favor by the -courts who have to decide upon the competency, relevancy and weight -of the opinions uttered. Chapman, C.J., of Massachusetts, in charging -a jury said, “While they afford great aid in determining facts, -it often happens that experts can be found to testify to anything -however absurd” [313]. In another insanity case another Judge remarked, -“Experience has shown that opposite opinions of persons professing to -be experts may be obtained to any amount, and it often occurs that -not only many days but many weeks are consumed in cross-examinations -to test the skill and knowledge of such witnesses, and to test the -correctness of their opinions,” (this was the case to a great degree -in the well known Guiteau prosecution,) “thus wasting time and -wearying the patience of both Court and jury, perplexing, instead -of elucidating, the question involved in the issue” [314]. As to the -perplexing instead of elucidating, a writer of the highest authority -gives the following, “In a case of alleged child murder a medical -witness, being asked for a plain opinion of the cause of death, said, -that it was owing to ‘atelectasis and a general engorgement of the -pulmonary tissue’.” And in a trial for an assault a |122| surgeon, -in giving his evidence, informed the Court “that on examining the -prosecutor, he found him suffering from a severe contusion of the -integument under the left orbit, with great extravasation of blood and -ecchymosis in the surrounding cellular tissue, which was in a tumefied -state, and there was also considerable abrasion of the cuticle.” The -Judge said, “You mean, I suppose, that the man had a bad black eye.” -“Yes.” “Then why not say so at once” [315]. - -Redfield, C.J., in his book on Wills, says, “Experience has shown both -here and in England that medical experts differ quite as widely in -their inferences and opinions as do other witnesses. This has become -so uniform a result with the medical experts of late that they are -beginning to be regarded much in the light of hired advocates, and -their testimony as nothing more than a studied argument in favor of -the side for which they have been called. So uniformly has this been -proved in our experience that it would excite scarcely less surprise to -find an expert called on one side testifying in any particular in favor -of the other side, than to find the counsel upon either side arguing -against their clients and in favor of their antagonists” [316]. - -A Lord Chancellor once remarked that his experience taught him that -there were very few cases of insanity in which any good came from the -examination of medical men. Their evidence sometimes adorned a case, -and gave rise to very agreeable and interesting scientific discussions, -but after all they have little or no weight with the jury. And Mr. -Justice Davis, of the Supreme Court of Maine, after stating that he -thought juries far more trust-worthy than experts on the subject of -insanity, said, “if there is any kind of testimony that is not only of -no value but |123| even worse than that, it is in my judgment that of -medical experts. They may be able to state the diagnosis of the disease -more learnedly, but upon the question whether it had, at a given time, -reached such a stage that the subject of it was incapable of making a -contract, or irresponsible for his acts, the opinion of his neighbors, -if men of good common sense, would be worth more than that of all the -experts in the country” [317]. There is scarcely a single hypothesis -as to responsibility (on the part of the insane), no matter how wild, -which, among the large number of experts who have concerned themselves -with this branch of study, has not its advocates. So says Wharton -in his valuable treatise on Mental Unsoundness [318]; or as Cicero -elegantly put it long ago, “_nihil tam absurde dici potest, quod non -dicatur ab aliquo philosophorum_” [319]. - -Considering these things, one is not surprised at Campbell, C.J., in -the Bambridge case, saying to three medical men who had recorded their -opinions in favor of the insanity of the testator: “You may go home to -your patients, and I wish you may be more usefully employed there, than -you have been here;” and to the jury he remarked, “We have had during -the trial the evidence of three medical witnesses, and I think they -might as well have stayed at home and attended to their patients.” - -On the other hand, Shaw, C.J., said, “such opinions (as to sanity, -etc.) when they come from persons of experience, and in whose -correctness and sobriety of judgment just confidence can be had, are -of great weight, and deserve the respectful consideration of a jury. -But the opinion of a medical man of small experience, or of one who -has crude and visionary notions, or who has some favorite theory to -|124| support is entitled to very little consideration. The value of -such testimony will depend mainly upon the experience, fidelity and -impartiality of the witness who gives it” [320]. And Chief Justice -Gibson speaks with just emphasis of the the deference due, in their -own department, to the knowledge obtained by men of a subject with -which they have grappled all their lives [321]. The Supreme Court of -Texas declared, “The opinions of medical men (on questions of insanity) -are received with great respect and consideration, and properly so.” -The Supreme Court of Pennsylvania says, “It is well settled that -the knowledge and experience of medical experts is of great value -in questions of insanity.” Equally strong are the utterances of the -Court of Appeals of West Virginia and the Supreme Court of North -Carolina [322]. - -Where the point in question is the sanity of a person, the opinion -of a medical man on the subject is, of course, admissible when that -opinion is drawn from personal observation. This is the rule both in -England and the United States [323]. But a medical man may also give his -opinion on this subject, even though he has no knowledge of the person -whose sanity is in question [324]. It has been suggested, that when a -physician is asked his opinion on the facts stated by other witnesses, -he should be first examined as to the particular symptoms of insanity; -and as to whether all or any, and which of the circumstances spoken -of by the witnesses upon the trial are to be regarded as |125| such -symptoms; then inquire of him whether any and what combination of these -circumstances would, in his opinion, amount to proof of insanity [325]. - -It has been held to be improper to ask a medical witness whether the -person, whose sanity was in question, possessed sufficient capacity -to make a will, or to transact business, as these are matters of law, -depending on the nature of the business [326]. In England such witnesses -can only speak as to the state of mind, not as to the responsibility -of a prisoner; this latter point is for the jury under the direction -of the Judge [327]. So, on the plea of insanity at the time of making a -contract, the opinion of the medical man who gave the certificate on -which the defendant was confined as insane at or about the time, is -only evidence for the jury, who must judge of the grounds upon which it -was formed [328]. - -In England, an expert cannot be asked, after being present at the whole -trial, whether the defendant was insane, or whether the act complained -of was an insane act, because these are questions for the jury and -the witness must not be placed in the jury’s place; but he may be -asked whether such and such appearances, proved by other witnesses, -are in his judgment symptoms of insanity [329]. The particular facts -proven by other witnesses may be taken and the expert may be asked -“assuming these facts to be true, do they in your judgment indicate -insanity on the part of the defendant at the time the alleged act was -committed?” [330]. |126| - -As a rule the Court should not allow an expert to give his opinion -upon facts proved by a witness unless he has heard all the testimony -of the witness, because the entire testimony may be necessary in order -to enable him to form an opinion in regard to the subject matter of -inquiry [331]. - -Where the facts are disputed, experts can only be questioned as to -their opinion of a party’s sanity on a hypothetical case, or as to -certain designated facts existing in the case supposing them to be -true [332]. - -The mode in which this hypothetical question is to be put has been much -considered. In England, in the celebrated _Macnaghten_ case in answer -to an inquiry of the House of Lords, whether “a medical man conversant -with the disease of insanity, who never saw the prisoner previously -to the trial, but who was present during the whole trial and the -examination of the witnesses, can be asked his opinion as to the state -of the prisoner’s mind at the time of the commission of the alleged -crime; or his opinion whether the prisoner was conscious at the time -of doing the act, that he was acting contrary to the law; or whether -he was labouring under any and what delusion at the time?” The twelve -judges replied, “We think the medical man, under the circumstances -supposed, cannot in strictness be asked his opinion in the terms above -stated, because each of these questions involves the determination -of the facts deposed to, which it is for the jury to decide, and the -questions are not mere questions upon a matter of science in which -case such evidence is admissible. But where the facts are admitted or -not disputed, and the question becomes substantially one of science -only, it may be convenient to |127| allow the question to be put in -that general form, though the same cannot be insisted on as a matter of -right [333].” - -In Massachusetts, Chief Justice Shaw said, “The proper question to be -put to the professional witness is this—If the symptoms and indications -testified to by the other witnesses are proved and if the jury are -satisfied of the truth of them, whether in their opinion the party was -insane, and what was the nature and character of that insanity; what -state of mind did they indicate; and what they would expect would be -the conduct of such person in any supposed circumstances?” [334]. - -In another well known case, the Judge said to the jury, “It is not the -province of the expert to draw inferences of facts from the evidence, -but simply to declare his opinion on a known, or hypothetical state -of facts, and therefore the counsel on each side have put to the -physicians such states of fact as they deem warranted by the evidence, -and have taken their opinions thereon. If you consider any of these -states of facts put to the medical witnesses are proved, then the -opinions thereon are admissible evidence, to be weighed by you, -otherwise their opinions are not applicable to the case” [335]. - -The opinions of both experts and non-experts should have weight -according to their opportunities and qualifications for examination of -the state of mind of the person whose sanity is in question. First of -all will be the family, or the physician who has attended the patient -through the disease which is supposed to have disabled his mind; next -are those who, without special learning on the subject, have had the -best opportunities for judging—the members of his family and those -whose intimacy in the family, have given them opportunities of seeing -the patient at all times and |128| noticing the alienation of his -mind; and last, come those who only occasionally and at intervals have -seen him, and whose chances of studying his moods have been small [336]. - -It has been held, in Massachusetts, that a physician who had not made -insanity a special subject, and who, when consulted in such matters, -always called in a specialist, is not competent to give an opinion on -an hypothetical case put to him, unless he was the person’s attending -physician; then his opinion is received, as it is his duty to make -himself acquainted with the peculiarities, bodily and mental, of a -person who is the subject of his care and advice [337]. And where a -physician had for more than thirty years been exclusively treating the -insane, he was not permitted to testify, as an expert, to the mental -capacity of a person—not previously insane—who was in the last stages -of disease [338]. - -One not an expert may give an opinion, founded on observation, as to -whether a person is sane or insane, notwithstanding the general rule, -that persons not medical men cannot give their opinions as to the -existence, nature or extent of disease in any one. The exception was -first introduced in regard to the subscribing witnesses to a will, who -were permitted to speak as to the testator’s state of mind; it has -now been extended to all cases where the witness’ acquaintance with -the party whose sanity is in dispute, or his means of observation, -are sufficient to enable him to express his opinion as to the mental -condition. The Courts of Massachusetts, Maine, New Hampshire and -Texas, however, still adhere to the old rule and admit the evidence of -non-experts only in cases of wills [339]. - - - - -|129| - -CHAPTER X. - -DEFAMATION. - - -No man may disparage the reputation of another. Every one has a right -to have his good name maintained, unimpaired. Words which produce any -perceptible injury to the reputation of another are called defamatory: -and if they are false they are actionable. False and malicious -defamatory words, if in printing, writing, pictures or signs, and -published, constitute a libel; if spoken, a slander. A caricature may -be a libel; so may a chalk-mark on a wall, a statue, hieroglyphics, a -rebus, an anagram or an allegory, or even ironical praise. - -Defamatory matter, whether published in the form of libel or slander, -is actionable when it imputes a criminal offence (or a contagious or -infectious disorder) or affects the plaintiff injuriously in his lawful -profession, trade or business, or in the discharge of a public office, -or generally when it is false and malicious, and its publication -causes damage to the plaintiff either in law or in fact. Defamatory -matter, the publication of which tends to degrade or disparage the -plaintiff, or which renders him ridiculous, or charges him with want of -honesty, humanity or veracity, or is intended to impair his enjoyment -of society, fortune or comfort, is actionable as libel, but not as -slander, unless special damage be proved [340]. |130| - -The person defamed by a libel has not only a civil remedy to recover -damages but he may also, in some cases, proceed criminally by way of -information or indictment and have the defamer punished as an offender -against the state. If he proceeds by information he must in general -waive his right to bring a civil action; but he may sue for damages -after the offender has been convicted upon an indictment. An action -for libel must be brought within six years; and an action for slander -within two years, unless the words spoken are actionable only by reason -of special damage, in which case the action may be brought at any time -within six years. - -Whenever a special kind of knowledge is essential to the proper -conduct of a particular profession, denying that a man possesses such -special knowledge will be actionable if he belongs to that particular -profession, but not otherwise. Thus to say of a physician, “Thou art -a drunken fool and an ass. Thou wert never a scholar, nor even able -to speak like a scholar,” is actionable, because no man can be a good -physician unless he be a scholar [341]. Although one may with impunity -say of a Justice of the Peace, “He is a fool, an ass and a beetle -headed justice” [342]. So to say, of a midwife, “Many have perished -for her want of skill;” or, “She is an ignorant woman, and of small -practice and very unfortunate in her way; there are few she goes to -but lie desperately ill, or die under her hands;” is actionable [343]. -Or of an apothecary, “He is not an apothecary; he has not passed any -examination. Several have died that he had attended, and there have -been inquests held upon them” [344]. Although one may safely say of a -Justice of the Peace, “He is a blood sucker, and sucketh blood.” |131| - -It is actionable to say of a person in his professional character, “He -is no doctor; he bought his diploma for $50” [345]. Any words imputing -to a practising medical man, misconduct or incapacity in the discharge -of his professional duties, are actionable _per se_. Thus, it is -actionable, without proof of special damage, to accuse one of having -caused the death of any patient through his ignorance or culpable -negligence, as to say of a physician, “He killed my child by giving it -too much calomel,” or, “He hath killed J. S. with physic, which physic -was a pill;” or, “He was the death of J. P.; he has killed his patient -with physic; it is a world of blood he has to answer for in this -town through his ignorance; he did kill a woman and two children at -Southampton; he did kill J. P. at Petersfield;” or, as an American did, -“Dr. S. killed my children; he gave them teaspoonful doses of calomel, -and it killed them. They did not live long after they took it. They -died right off the same day” [346]. - -So it is to say of an apothecary, “He poisoned my uncle; I will have -him digged up again, and hang him,” or, “He killed my child; it was -the saline injection that did it;” or, “I was told he had given my -child too much mercury, and poisoned it; otherwise, it would have got -well” [347]. - -So it is actionable to say of a surgeon and accoucheur, “He is a bad -character; none of the medical men here will meet him.” As such words -impart the want of a necessary qualification for a surgeon in the -ordinary discharge of his professional duties; or, “Dr. Tweedie has -honorably and faithfully discharged his duties to his |132| medical -brethren in refusing to act or consult with Ramadge (a physician), -and we hope every one else will do the same” [348]. Or to call a -practising medical man “a quack,” “a quacksalver,” “an empiric,” or “a -mountebank,” or to say of him, “Thou gavest physic which thou knewest -to be contrary to the disease,” or “Thou art no good subject, for thou -poisonedst A. F.’s wound, to get more money of him.” Under the New York -Statutes, a homœopathic physician may maintain an action for being -called a quack [349]. And it seems that an action will lie, without -averment of special damages, for slander imputing to a physician, that -he has taken advantage of his character as a physician to abuse the -confidence reposed in him, and commit acts of criminal conversation -with a patient [350]. - -In the case of libel, any words will be presumed defamatory which -expose the plaintiff to hatred, contempt, ridicule or obloquy, which -tend to injure him in his professional trade, or cause him to be -shunned or avoided by his neighbours. Thus, to advertise falsely that -certain quack medicines, “consumption pills,” were prepared by a -physician of eminence, is a libel upon such physician [351]. - -Whenever a medical man brings forward some new method of treatment and -advertises it largely as the best, or only cure for some particular -disease, or for all diseases at once, he may be said to invite -public attention, and a newspaper writer is justified in warning the -public against such advertisers, and in exposing the absurdity of -their professions, provided he does so fairly and with reasonable -judgment [352]. |133| A medical man, who had obtained a diploma and the -degree of M.D., from an American College, advertised in England most -extensively a new and infallible cure for consumption. The _Pall Mall -Gazette_ published a leading article on these advertisements, in which -they called the advertiser a quack and an impostor, and compared him to -scoundrels “who pass bad coin.” This was considered as overstepping the -limits of fair criticism, and a verdict was given for the plaintiff, -with damages, one farthing [353]. So where the editor of the _Lancet_ -attacked the editor of a rival paper, _The London Medical and Physical -Journal_, by rancorous aspersions on his private character, not fairly -called for by what the plaintiff had done as an editor, the plaintiff -recovered a verdict of £5 [354]. - -On the other hand, it is not actionable to say of a surgeon, “He -did poison the wound of his patient,” without some averment that -this was improper treatment, for it might be proper for the cure of -it. Nor to say of an apothecary, “He made up the medicine for my -child wrong, through jealousy, because I would not allow him to use -his own judgment” [355]. Nor to charge a physician or surgeon with -“malpractice,” if it appear that the word was not used or understood -in a technical sense; and to charge a physician or surgeon with mere -want of skill, or with ignorance or neglect, is not actionable _per -se_, though untrue, unless the charge be of gross want of skill, or the -like, so as to imply general unfitness [356]. - -Nor is it actionable to call a person who practises medicine or -surgery, without legal qualification, a “quack or an |134| impostor,” -for the law only protects lawful employment [357]. Even though a medical -man be duly registered in Great Britain, still, if he is practising -in a colony which requires registration without complying with the -colonial law, he may safely be called “a quack,” “a charlatan,” “a -scoundrel not to be entrusted with the lives of people” [358]. - -Words imputing immoral conduct, profligacy or adultery, even when -spoken of one holding an office or carrying on a profession or -business, are not actionable unless they “touch him” in that office, -profession or business. Thus, if adultery is alleged of a clergyman, -it will be actionable, because if the charge were true, it would be a -ground for degradation or deprivation, as it would prove him unfit to -hold his benefice, or to continue the active duties of his profession. -But if the same words are spoken of a physician, they will not be -actionable without proof of special damage, as they do not necessarily -affect the plaintiff in relation to his trade or profession [359]. - -Nor unless the words are spoken in connection with the professional -duties of the plaintiff will an action lie for the words, “He is so -steady drunk, he cannot get business any more;” or “He is a twopenny -bleeder” [360]. - -It is no libel to write of a physician that he is in the habit of -meeting homœopathists in consultation [361]. - -Where the plaintiff considers that the words spoken touch him in his -profession or trade, he must always aver in the pleadings that he was -carrying on the profession of a physician or surgeon, or the trade -of a druggist, at the |135| time the words were spoken. Sometimes -this is admitted by the slander itself, and if so, evidence is of -course unnecessary in proof of this averment. But in other cases, -unless it is admitted on the pleadings, evidence must be given at -the trial of the special character in which the plaintiff sues. As a -rule, it is sufficient for the plaintiff to prove that he was engaged -in the profession or trade, without proving any appointment thereto, -or producing a diploma or other formal qualification. For the maxim -_omnia presumuntur rite esse acta_ applies. But if the very slander -complained of imputes to the medical practitioner that he is a quack or -an impostor, not legally qualified for practice; or if the plaintiff -aver that he is a physician and has duly taken his degree, then the -plaintiff at the trial must be prepared to prove his qualification -strictly by producing his diploma or certificate. In some cases the -mere production of the diploma will not be sufficient proof of the -plaintiff’s having the degree, but it may be necessary to prove that -the seal affixed is the seal of a university having power to grant -degrees; or in the case of the production of a copy of the diploma, -that it has been compared with the original [362]. - -Whether or no the words were spoken of the plaintiff in the way of his -business is a question for the jury to determine at the trial. There -should always be an averment in the statement of claim, that the words -were so spoken, and it should also be shewn in what manner the words -were connected by the speaker with the profession [363]. - -Medical practitioners are of course equally liable with other men to -an action for defamation, in respect of any |136| false and malicious -communication, whether oral or written, made by them to the damage of -another, in law or in fact; circumstances, however, frequently arise -where, from the nature of their employment, it becomes their duty or -interest to make some communication prejudicial to the character or -conduct of another, and in such cases, where the occasion on which -the communication was made rebuts the presumption of malice, (which -the law infers from such a statement,) such communication is said -to be privileged, and therefore, in order to sustain an action for -defamation, the plaintiff must prove that the defendant was actuated by -express or actual malice—that is, malice independent of the occasion -on which the communication was made. The legal canon is, that a -communication made _bona fide_, upon any subject matter in which the -party communicating has an interest, or in reference to which he has -a duty, is privileged, if made to a person having a corresponding -interest or duty, although it contains criminatory matter, which -(without this privilege) would be slanderous and actionable. This -applies, moreover, though the duty be not a legal one, but only a -moral or social duty of imperfect obligation, and also where the -communication is made to a person not in fact having such interest -or duty, but who might reasonably be, and is supposed by the party -making the communication to have such interest or duty [364]. Even -where the evidence of duty is not present to the mind, but the speaker -is impelled by a sense of propriety, on which he does not pause to -reflect, and which he refers to no special motive, nevertheless, if -his conduct in speaking the words be within the occasion of interest -or of duty which is capable of protecting, the communication will be -considered privileged [365]. - -Words spoken by the medical officer of a college concerning |137| -the meat furnished to the institution; and words used by the medical -attendant of a poor-law union about the wine supplied to the inmates, -are privileged, in the absence of proof of actual malice [366]. A -statement made by a physician that an unmarried woman is pregnant is -not a privileged communication, unless made in good faith to one who is -reasonably entitled to receive the information [367]. - - - - -|138| - -CHAPTER XI. - -RELATIONS WITH PATIENTS. - - -It is a well settled doctrine that where one occupies a position -which naturally gives him the confidence of another, or which in any -way gives him an influence, or an undue advantage over the other, -transactions between them require something more to give them validity -than is necessary in other cases. The mere fact of the existence of -such a relationship as naturally creates influence over the mind will -lead the courts to infer the probability of undue influence having -been exerted. Confidence has been held to imply the opportunity for -influence, and when established, dispenses with any more direct -proof of influence. In such cases the _onus_ is cast upon the person -occupying such a relationship to establish the perfect fairness and -equity of the transaction. He must shew that the other acted after full -and sufficient deliberation and with all the information that it was -material for him to have, in order to guide his conduct, and that he -had either independent and disinterested advice, or as ample protection -as such advice could have given him [368]. _Rhodes_ v. _Bates_ [369] lays -it down that the donor must have had competent and independent advice. - -The relation between a medical man and his patient is one in which -the probability of undue influence is inferred; |139| and so in -dealings with their patients the acts of physicians are watched with -great jealousy; not because the Court blames and discountenances the -influence flowing from such relation, but because it holds that this -influence should be exerted for the benefit of the person subject to -it, and not for the advantage of the person possessing it [370]. The -discontinuance of the relationship is only material if the influence -has ceased with the relation; and the relation does not necessarily -cease because the patient has not medicine actually administered to him -at the time [371]. - -Where a surgeon and apothecary obtained from a patient, eighty-five -years old, an agreement to pay him £25,000, in consideration of past -medical services, duly charged and paid for, and the promise of future -medical and surgical assistance until death without charge, and kept -the matter concealed until after the death of the patient, the Court, -on the prayer of the patient’s executor, ordered the medical man to -give up the agreement to be cancelled. So, when an octogenarian patient -conveyed by deed of gift a property worth £1,000 to his physician, -who was also his intimate friend, and the son of his benefactor, the -Court set aside the deed for fraud. (In this case the consideration -named in this deed was not the true one.) And even where a patient -gave to his surgeon an annuity of £100 for the surgeon’s life, in -consideration that he would live with him and give him the benefit of -his professional assistance during his (the donor’s) life, it being -shown that the surgeon had been told by an eminent physician, just -before the deeds were drawn, that the patient could not recover or -live long, and that the surgeon himself, about the same time, had said -the patient could not live more than a month or so; the Court held -the instruments could not be |140| maintained [372]. A patient, aged, -feeble, deaf and of very weak mind, bestowed all his estate on the -attending physician, who lived with him, and had controlling influence -over him, for an extremely trifling compensation. The transaction was -set aside, the Court saying: “Owing to the relation which the parties -sustained towards each other, the deed was presumptively the result -of undue influence, and therefore _prima facie_ void for that reason. -It has been repeatedly declared by learned chancellors that the mere -relation of patient and medical adviser was sufficient to avoid the -contracts of the former made with the latter during the continuance of -such relation” [373]. - -A security given by an old man for £262 10_s._ to a dentist, in -consideration of his old teeth being kept in order and new ones being -supplied during the remainder of his life, had to be given up [374]. -And if a man pays an exorbitant bill to a doctor, the Court will grant -him relief; and it will be no answer to his asking his money back to -say that he intended to be liberal, unless such intentions can be -clearly shown [375]. Even a sale to a patient by the medical man under -whose care he is will be set aside if at an exorbitant price, and the -purchaser has had no independent advice [376]. - -But where the evidence showed that the patient’s own attorney prepared -the papers, that he had independent advice, and understood what he -was doing, and exercised his free will, and that the medical man had -long attended him, the Court refused to set aside the deed, although -the patient was eighty years of age [377]. And although a |141| gift -made to a physician may be voidable, because of his standing in a -confidential relation to the donor, a patient, yet, if after the -confidential relation has ceased to exist, the donor intentionally -elects to abide by the gift, and does, in fact, abide by it, it cannot -be impeached after his death, even if it is not proved that the patient -was aware that the gift was voidable at his election [378]. - -There is, of course, nothing in the relation of medical attendant and -patient which can prevent the one from entering into a contract with -the other, where the transaction proceeds openly and fairly, and the -relation of physician and patient has, in reality, no bearing upon -it [379]. In the case of a sale by a patient to a physician, where there -was no proof of inadequacy of price, the transaction was sustained [380]. - -A strong case must be made to set aside a will on the ground of undue -influence. Influence is not sufficient: there must be such a degree -of influence as deprives the testator of the proper mastery over -his faculties [381]. To invalidate a will, on the ground of undue -influence, it must be shown that it was practised with respect to the -will itself, or so contemporaneously with the will, or connected with -it, as by almost necessary presumption to affect it; and flattery -and obsequiousness, however degrading, will not constitute such an -undue influence as will affect the acts of a capable testatrix [382]. -Many wills made in favour of medical men by their patients have been -sustained, although disputed, and that even in cases where the patients -have been aged, infirm women, with impaired minds [383]. |142| - -A physician, however, may fail to obtain the benefits which a -grateful patient has wished him to have under a will, if—as was done -in one case—after a long attendance on a patient, he thinks fit, when -she is almost on her deathbed, to prepare and procure the execution -of a will by which he becomes the principal object of her bounty, -to the exclusion of her near relatives; and to do this without the -intervention of any solicitor or other person competent to give her -advice, and to guard her against undue influence; for in such a case -the interests of the public require that his conduct should be regarded -by Courts of Justice with the utmost jealousy [384]. In another case, -it was said that although there is no rule of law which forbids a -man to bequeath his property to his medical attendant, yet it is not -a favourable circumstance for one in such a confidential position, -with respect to a patient labouring under a severe disease, to take a -large benefit under such patient’s will, more particularly, if it be -executed in secrecy and the whole transaction assumes the character -of a clandestine proceeding, and in such a case the _onus_ will lie -very heavily upon the party benefited to maintain the validity of the -will [385]. - -Clairvoyant physicians may also get into trouble. An action was brought -against one to set aside a marriage and a conveyance of property -worth $25,000. The patient was old, feeble, deaf, childish and a firm -spiritualist. The clairvoyant was a woman who pretended to be very -modest and bashful and able to cure the deafness. After a course of -treatment, mainly by manipulation, she told the old man that the -spirits said that they must be married within two weeks, or something -dreadful “would step in between them.” |143| By misrepresentations -concerning her character and her friends she won the old man and his -property. After the honeymoon the patient came to his senses, and -prayed to get back his liberty and possessions, because of the fraud -used. The Court granted his prayer [386]. - -To promise a cure is unprofessional, and to obtain money on the faith -of such a promise is sometimes dangerous. Brown falsely represented -himself to A., an ignorant negro, to be a practising physician, and -that he had restored sight to the blind. He persuaded A. that his -(A.’s) house was infected with poison, and that it was in the bed -occupied by his granddaughter, that she was poisoned, and that he could -remove the poison if he was paid for so doing. A. gave him $22 to -remove it. The Court held that Brown had been guilty of obtaining money -under false pretences [387]. - -A physician should take all possible care to prevent the spread -of smallpox or any other contagious disease, and use all such -precautionary measures as may appear desirable. So, where the paper -upon the walls of a room in which there had been smallpox patients had -become so soiled and smeared with the smallpox virus as to make its -removal necessary, a physician or other attendant may order the paper -to be torn down; and the landlord cannot successfully maintain an -action against the physician for doing this [388]. - -Apparently a surgeon may retain the limbs he cuts off a patient, upon -the ground that parts of the body when severed become dead, and at -common law there is no property in a dead human body. The point was -once contested in Washington [389]. |144| - -A surgeon who attends a duel, although to save by his skill if -possible the lives therein imperilled, will be held guilty of aiding -and abetting the principal offender in the event of death ensuing [390]. - -If a medical practitioner wilfully injures a patient he is liable to -be indicted for an assault, and if death ensue from the injuries so -inflicted he may be indicted for murder. And this is so even though -the patient might have submitted at the time from the supposition -that the treatment was for his good. Having or attempting to have -carnal connection with a female patient under pretence of treating her -medically is an assault [391]. Making a female patient strip naked, -under pretence that the defendant, a medical practitioner, cannot -otherwise judge of her illness, if he himself takes off her clothes, -contrary to her wishes, is an assault. In this case the jury found that -the defendant had stripped the girl wantonly, and not from any belief -that it was necessary [392]. - -Where a physician takes an unprofessional unmarried man with him to -attend a case of confinement, and no real necessity exists for the -latter’s assistance or presence, both are liable for damages; and it -makes no difference that the patient, or her husband, supposed at the -time that the intruder was a medical man, and therefore submitted -without objection to his presence; or that the intruder accompanied the -physician reluctantly on a dark and stormy night to carry a lantern -or umbrella, and some instruments, and that there was only one room -in the house. The Court remarked: “Dr. De May therefore took an -unprofessional young unmarried man with him, introduced and permitted -him to remain in the house of the plaintiff, when it was apparent that -he could hear at least, |145| if not see, all that was said and done, -and, as the jury must have found under the instructions given, without -either the plaintiff or her husband having any knowledge or reason to -believe the true character of the third party. It would be shocking -to our sense of right, justice and propriety even to doubt that for -such an act the law would afford an ample remedy. To the plaintiff -the occasion was a most sacred one, and no one had a right to intrude -unless invited, or because of some real and pressing necessity which it -is not pretended existed in this case. The plaintiff had a legal right -to the privacy of her apartment at such a time, and the law secures to -her this right by requiring others to observe it and to abstain from -its violation. The fact that at the time she consented to the presence -of Scattergood, supposing him to be a physician, does not preclude her -from maintaining an action, and recovering substantial damages upon -afterward ascertaining his true character. In obtaining admission at -such a time and under such circumstances, without fully disclosing -his true character, both parties were guilty of deceit, and the wrong -thus done entitles the injured party to recover the damages afterward -sustained, from shame and mortification, upon discovering the true -character of the defendants.” The action was brought by the wife [393]. - -If physicians, who have certified to the insanity of a person, have -not made the enquiry and examination which the statute requires, or if -their evidence and certificate in any respect of form or substance are -not sufficient to justify a commitment to an asylum, the authorities -should not commit, and if they do it is their fault and not that of the -physicians, provided the latter have stated facts and opinions truly -and have acted with due professional care and skill [394]. |146| - -If a medical man takes upon himself the responsibility of imprisoning -a person on the ground of insanity, upon mere statements made to him -by others, he will be liable to an action, and also for an assault, -unless he can indeed show that the party imprisoned was insane at -the time [395]. He is not liable for an assault if he has signed a -certificate under the Lunacy Acts and has done nothing more towards -causing the confinement of the alleged lunatic [396]. A medical man -or other person may justify an assault where it is committed for the -purpose of putting a restraint upon a dangerous lunatic in such a state -that it is likely he may do mischief to some one [397]. - -In Ontario, except under order of the Lieutenant-Governor, no one -can be admitted into a lunatic asylum without the certificate of -three medical men, each attested by the signatures of two subscribing -witnesses. Their certificates must state a personal and separate -examination, and that after due enquiry the patient was found insane; -and the physicians must also specify the facts upon which they formed -their opinion of the insanity. In England, except in the case of -paupers, two certificates are required [398]. - -The practice of abortion is forbidden by the oath of Hippocrates. The -act is recognized as a crime in almost every code of medical ethics: -its known commission has always been followed by ignominious expulsion -from medical fellowship and fraternity. At Common Law a child _en -ventre sa mere_ is not considered a person the killing of whom is -murder; but if one, intending to procure abortion, causes a child to be -born so soon that it cannot live, and |147| it dies in consequence, -it is murder [399]. And it is murder if one, attempting to procure -abortion, either by means of drugs or instruments, cause the death of -the woman [400]. - -In most civilized countries it is now either a felony, or grave -misdemeanor, to attempt to procure the miscarriage of a woman by any -means; or to supply or procure any thing knowing that it is intended -to be unlawfully used or employed to procure a miscarriage [401]. In -some States the crime of abortion may be committed at any stage of -pregnancy [402]. The thing prescribed must be noxious in its nature, but -it is not necessary to prove that it will produce miscarriage [403]. - -The burden of shewing that the use of instruments to produce abortion -was necessary to save the life of the woman is on the accused [404]. - -It is an indictable offence for a physician, or any one else, -unlawfully and injuriously to carry along or to expose in a public -highway, on which persons are passing, and near to the habitations -of others, any person infected with the small-pox, or any contagious -disorder; and it is for the accused to shew that the object of the -carrying or exposure was lawful [405]. - -In England, since 1840, it has been an indictable offence to innoculate -for the small-pox [406]. So, too, it has been in Canada for a number of -years [407]. |148| - -It has been held in the State of Alabama, that where a special -prohibitory Act does not except the practising physician from its -operation, he is liable if he administers intoxicating bitters to his -patient, but not for using liquors necessary in compounding medicine -manufactured and sold by him. The application of any other rule, -it was said by the Court, would be fraught with difficulty, if not -impracticability. So, too, in Kansas [408]. - -Any registered practitioner who has been convicted of felony shall -forfeit his right to registration, and the Medical Council may cause -his name to be erased from the register; and if any one who has been -convicted of felony presents himself for registration the registrar may -refuse registration. But one’s name cannot legally be removed from the -register without notice and an opportunity of being heard [409]. - -A person who has met with personal injuries must exercise the same -degree of care in the employment of a physician and surgeon, and in -procuring and submitting to proper medical treatment, as a prudent and -reasonable man would in any other matter; for those persons liable for -the original injury will not be responsible for the further damage -arising from the improper selection of a physician [410]. - -If a family doctor, or the surgeon of a company or society, on leaving -home, recommends in case of need, some other physician, who is not, -however, in any sense in his employment, it does not make him in any -way liable for injuries arising from the latter’s want of skill [411]. - - - - -|149| - -CHAPTER XII. - -DISSECTION AND RESURRECTION. - - -A knowledge of the causes and nature of sundry diseases which affect -the human body, and of the best methods of treating and curing such -diseases, and of healing and repairing divers wounds and injuries to -which the human frame is liable, cannot be acquired without the aid of -anatomical examination. So saith the preamble to the British Anatomy -Act of 1832. The chief hindrances to the pursuit of the study of -anatomy have arisen from ignorance and superstition. A prejudice has -prevailed in all nations against the violation of the human body after -death. Even now, only philosophers like Jeremy Bentham are willing to -have their bodies dissected by their friends. Simple association of -thoughts causes the remains of a dead kinsman or friend to be treated -with respect and tenderness; in the same way, the horror of death -attaching to anything connected with the dead, and the religious idea -that the soul outlives the body, and continues in a ghostly way to -retain a connection with its old habitation of clay, have led to the -respectful disposal of the corpse among most nations. - -The Ptolemy princes Philadelphus and Euergetes, who enabled their -physicians to dissect the human body, and prevented the prejudices of -ignorance and superstition from compromising the welfare of the human -race, were far in advance of their times. Long after their day, the -Koran denounced as unclean the person who touched a corpse, and |150| -the rules of Islamism still forbid dissection; the old Moslem doctors -only found opportunities of studying the bones of the human body in -the cemeteries. Not until the days of Henry VIII. did the law make any -provision for the cultivation and practice of the art of dissection. -In 1540, more perhaps to strike terror into malefactors, than from -any enlightened notion of forwarding knowledge, the Legislature gave -permission to the masters of the Mystery of Barbers and Surgeons of -London to take annually four persons, put to death for felony, for -anatomies, and to make incision of the same dead bodies, or otherwise -to order the same, after their discretions, at their pleasure, for -their further insight and better knowledge, instruction, insight, -learning, and experience, in the science or faculty of surgery [412]. - -Elizabeth, in 1565, made a similar grant to the College of Physicians, -that they, observing all decent respect for human flesh, “might dissect -the four felons.” By 25 Geo. II. cap. 37 (1752), the bodies of all -murderers executed in London and Westminster were to be given to the -surgeons to be dissected and anatomised. But the legal supply of human -bodies for anatomical examination still continued insufficient fully to -provide the means of knowledge; and in order to furnish the necessary -subjects, divers great and grievous crimes and murders were committed, -the money paid, being the incentive. So, in 1832, the Anatomy Act [413] -was passed. This Act proves clearly that Parliament regarded anatomy as -a legal practice, and it provides for the licensing of those practising -anatomy, allows any executor or other person, having lawful possession -of any dead person (and not being an undertaker, etc.), to hand over -the body for dissection (respect, however, being had to |151| the -wishes of the deceased or his known relatives). Inspectorships of -schools of anatomy were likewise established. - -In Canada, the bodies of convicts who die in a penitentiary, if -unclaimed by the relatives, may be delivered to the professors of -anatomy in any medical college, or to an inspector of anatomy [414]. - -The first defender of the faith, Henry VIII., the illustrious Elizabeth -of most famous memory, and the enlightened James, had several statutes -passed in which the disinterring of the dead is mentioned, but they -were chiefly enactments against witchcraft, conjuration, the use -of dead men’s bones, and all sorts of sorceries. The parliament of -James solemnly enacted, “that if any person should consult, covenant -with, entertain, employ, feed or reward any evil and wicked spirit, -to or for any intent or purpose, or take up any dead man, woman, or -child out of his, her, or their grave, or any other place where the -dead body rested, or the skin, bone, or any other part of any dead -person, to be employed, or used, in any manner of witchcraft, sorcery, -charm, or enchantment * * every such offender, his aiders, abettors, -and counsellors, should suffer death as felons, and should lose the -privilege and benefit of clergy and sanctuary” [415]. This philosophical -enactment graced the statute book until the ninth year of George II. -While these statutes against sorcery were in force, and the Judges -still imbued with the superstitious spirit of the age, the presumption -was very strong that bodies disinterred were removed for purposes -of enchantment or witchcraft, and resurrection-men and students of -anatomy, as their aiders and abettors, were in imminent jeopardy of -suffering as felons; but as the belief in sorcery grew weaker the -prospect of these men grew brighter, and they were relieved from the -great danger that they ran. |152| - -Under the laws of Constantine, a woman could without blame repudiate -her husband, if he was guilty of violating the tombs of the dead; and -we are told that the Ostrogoths allowed divorce for this same reason. -And among the Franks, one who took the clothing from a buried corpse -was banished from society, and none could relieve his wants until the -relations of the deceased consented [416]. As long ago as the tenth -year of James I., at the assizes in Leicester, a man was tried for -stealing winding sheets. Sir Edward Coke tells the matter thus: “One -William Hain had in the night digged up the graves of divers several -men and of one woman, and took the winding sheets from the bodies and -buried the bodies again; and I advising hereupon, for the rareness of -the case, consulted with the Judges at Sergeants’ Inn on Fleet street, -when we all resolved, that the property of the sheets was in the -executors, administrators, or other owner of them, for the dead body is -not capable of any property, and the property of the sheets must be in -somebody, and according to this resolution he was indicted of felony in -the next assizes; but the jury found it but petit larceny, for which he -was whipped, as he well deserved.” These learned people thought that -if a winding sheet had been gratuitously furnished by a friend the -property remained in the donor. For, quoth they, the winding sheet must -be the property of somebody; a dead body, being but a lump of earth, -hath no capacity; also, it is no gift to the person, but bestowed -on the body for the reverence toward it, to express the hope of the -resurrection; also, a man cannot relinquish the property he hath to his -goods unless they be vested in another [417]. Subsequently, lawyers have -generally concurred in these opinions; the coffin, too, is the property -of the personal representative of the deceased [418]. |153| - -A still more interesting question arises as to who owns the corpse. -It has been generally held that there is no property in it. Blackstone -remarks, that, although the heir has a property in the monuments -or escutcheons of his ancestor, he has none in his body or ashes. -According to the law of England, after the death of a man, his -executors have a right to the possession and custody of his body -(although they have no property in it) until it is properly buried. A -man cannot dispose of his body by will or any other instrument [419]. -A contract for the sale of a corpse, even to doctors, will not be -enforced; it cannot be made an article of merchandise [420]. The -relatives have the right of interring the body, and when this right -is once exercised they have no further interest in it than to protect -it from injury [421]. In Indiana, the Courts have diverged somewhat -from the beaten track, and held that the surviving relatives are -entitled to the corpse in the order of inheritance as property, and -that they have a right to dispose of it as such, subject to whatever -burial regulations are reasonable and proper for the public health and -advantage [422]. - -The English Anatomy Act, as has been seen, gives the executor or other -person having the lawful possession of the body of any deceased person -power to permit it to be anatomically examined. In England, the earlier -writers on criminal law say nothing of the taking of a body from the -grave, except that it is not theft. East, however, calls it a great -misdemeanor; and there have been several convictions for this as an -offence at Common Law. Doubtless the belief that it was an offence at -Common Law was nearly connected |154| with the idea of the bodies -being used for the dark purposes of the necromancer, and it would -appear that no distinct authority upon the abstract point has been -found in ancient legal records [423]. It is still an indictable offence, -punishable with fine and imprisonment, or both [424]. And this even -though the body has been taken in the interest of science, and for the -purpose of dissection; or even if the motives of the offender were -pious and laudable. In _Lynn’s_ case—(Lynn was indicted for entering a -burying ground, taking a coffin up, and carrying away a corpse for the -purposes of dissection)—it was urged that the offence was cognizable -only by the ecclesiastical courts; but the Judges of the King’s Bench -said that common decency required that a stop should be put to the -practice; that it was an offence cognizable in a criminal court as -being highly indecent, and _contra bonos mores_, at the bare idea alone -of which nature revolted; that the purpose of taking up the body for -dissection did not make it less an indictable offence. They refused to -stay proceedings, but inasmuch as Lynn might have committed the deed -merely through ignorance, they only fined him five marks. Since then -others have been more severely dealt with. And in a very recent case, -Stephen, J., said, “The law to be collected from these authorities -seems to me to be this:—The practice of anatomy is lawful, though it -may involve an unusual means of disposing of dead bodies, and though it -certainly shocks the feelings of many persons; but to open a grave and -disinter a dead body without authority is a misdemeanor, even if it is -done for a laudable purpose.” - -It is, also, an indictable offence in many of the States to disinter a -corpse, unless the deceased in his life-time had |155| directed such a -thing, or his relatives consent to it; and that the resurrecting is for -the purpose of dissecting does not improve matters [425]. In New York, -removing dead bodies “for the purpose of selling the same,” or “from -mere wantonness,” is punishable by both fine and imprisonment [426]. And -in New Hampshire and Vermont such offences bring upon those convicted, -fines, whipping, and imprisonment, as the Court may see fit. - -In Massachusetts, unclaimed dead bodies, and those of persons killed -in duels, or capitally executed, are assigned to the medical schools -of the State. The New York Act of 1789 must be considered as the -first American Anatomy Law. The first section prohibits the removal -of dead bodies for dissection, and the second section permits the -Courts, in passing capital sentence, to award the body to the surgeons -for dissection. Enactments similar to that of the New York Act, sec. -1, have been passed by the following States: Alabama, Arkansas, -California, Connecticut, Georgia, Illinois, Indiana, Iowa, Kansas, -Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, -Missouri, Nebraska, New Hampshire, Ohio, Oregon, Pennsylvania, Rhode -Island, Tennessee, Texas, Vermont, Virginia, West Virginia, and -Wisconsin. The second section of the New York Act has developed into -the Acts of twenty-four States, which have thus legalized dissection, -and most of them have made specific provision for the dissection of the -bodies of certain deceased criminals, chiefly murderers; these States -are Alabama, Arkansas, California, Colorado, Connecticut, Georgia, -Illinois, Indiana, Iowa, Kansas, Maine, Massachusetts, Michigan, -Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, -Ohio, Pennsylvania, Tennessee, Vermont, and Wisconsin. Some of these -States |156| have made no other provision for anatomical study beyond -that mentioned [427]. We have already referred to the Canadian Act on -this subject. In addition, the Ontario Act provides that the bodies of -persons found dead, publicly exposed, or who at time of death had been -supported in and by some institution receiving government aid (except -lunatics in provincial asylums), shall, unless the person so dying -otherwise direct, or the _bona fide_ friends or relations claim it, be -given to public medical schools in the locality, or to public teachers -of anatomy or surgery, or private medical practitioners, having -three or more pupils, for whose instruction such bodies are actually -required. Such medical practitioners must give security for the decent -interment of the bodies after they have served their purposes; and -then a written authority to open a dissecting room is given by the -Inspector of Anatomy of the city, town, or place. The Inspector’s duty -is to keep a register of bodies given up for dissection; a register -of the qualified practitioners desiring bodies; to make an impartial -distribution of the bodies in rotation; to visit the dissection rooms, -and to report to the police magistrate or chief municipal officer, any -improper conduct on the part of students or teachers [428]. - -A person may be found guilty of the offence of disinterring a corpse, -even though he was not actually present at the body-lifting, if with -the intention of giving aid and assistance he was near enough to afford -it, if required [429]. - -Besides the danger he runs of being brought before a criminal tribunal, -the body-lifter incurs the risk of civil proceedings being taken -against him. It is true, as Blackstone says, the heir has no property -in the body or ashes of |157| his ancestors; nor can he bring any -civil action against such as indecently, at least, if not impiously, -violate and disturb their remains when dead and buried; but that -learned commentator goes on to remark: “The person, indeed, who has -the freehold of the soil, may bring an action of trespass against such -as dig and disturb it” [430]. This has been clearly established in a -case in Massachusetts, where a father sued for the removal of the -remains of his child, and recovered a verdict for $837 in an action -of trespass _quare clausum fregit_. Mr. Justice Forster, in giving -judgment, remarks that a dead body is not the subject of property, -and after burial it becomes part of the ground to which it has been -committed, earth to earth, dust to dust, ashes to ashes. The only -action that can be brought is trespass _quare clausum_. Any one, said -the Judge, in actual possession of the land may maintain this against -a wrong-doer. The gist of the action is the breaking and entering, but -the circumstances which accompany and give character to the trespass -may always be shown either in aggravation or mitigation. Acts of -gross carelessness as well as those of wilful mischief often inflict -a serious wound to the feelings, when the injury done to property is -comparatively trifling, and we know of no rule of law which requires -the mental suffering of the party complaining, caused by the misconduct -of the wrong-doer, to be disregarded [431]. - -Willcock, in his “Laws relating to the Medical Profession,” in his -tenth chapter, when considering the lawfulness or unlawfulness of -taking bodies for the purpose of dissection, says: “The whole question -must depend upon the proper answer to these inquiries. Is it a -violation of property? |158| Is it a personal injury to any individual? -Or is it an injury to the public? Every lawyer who has mentioned -the subject has admitted that there is no violation of property in -respect of the corpse itself, which is necessary to constitute the -removal an offence; and Blackstone has distinctly stated that the only -property violated is the grass and soil of the land wherein the body -was interred, in respect of which the person may bring his action -of trespass, and the law has not provided any punishment as for an -offence. It is equally clear that it is not an injury to any person; -for the shrewd lawyers of Coke’s time determined that the body was -no person but a lump of clay; and the only injury which can give a -right of action to—that is which amounts to a violation of any legal -right of—a relative or master, is such as may be said to recoil upon -him, by causing him expense, labor, or loss of valuable service. The -unpleasantness which may arise from an attack upon prejudices, however -intimately blended with good feeling and delicacy of sentiment, is -ranked by the court with that class of wrongs which are technically -designated _damna absque injuria_.” - -“In _Lynn’s_ case, the judges assumed to answer the third question, -that is to assert that it is an injury to the public. Society is not -injured by the disinterment of the dead for the purposes of science, -for it could hardly exist without such a sacrifice of fastidiousness; -society is not insulted by the secret abstraction of the corpse from -the vermin which crowd to pollute it, and they who so curiously seek -the remains of those they hold dear, behind the veil of science, would -do well to pry for one moment into the secrets of the sepulchre. They -alone are the violators of every sentiment of delicacy and benevolence -who insult the disconsolate relatives with the tale of the robbery and -the pursuit, and with the foul spectacle of dismemberment they may have -at length discovered.” |159| - -It would appear that in a proper case the Court, in the interests -of justice, will compel the exhuming and examination of a dead body -which is under the control of a plaintiff, if there is strong reason -to believe that without such examination a fraud is likely to be -accomplished, and the defendant has exhausted every other method known -to the law of exposing it. However, such an order should be made -only upon a strong showing to that effect. “It would be a proceeding -repugnant to the best feelings of our nature, and likely to be in many -cases so abhorrent to the sensibilities of the surviving relatives, -that they would prefer an abandonment of the suit to a compliance -with the order.” Thus spake the court in a case where the order for -exhuming was asked for and refused as not being justified under the -circumstances. The action was on a policy of insurance, and the defence -was, that the insured had falsely warranted that he had never received -any serious personal injury, whereas his skull had been fractured in -boyhood, and had been healed by trephining. To prove this, the company -proposed to disinter his body, after the suit had been pending eighteen -months, upon the sole testimony of his physician, that the deceased -had said that he had been told of such an accident and operation. The -counsel for the plaintiff called the proposal “revolting,” and said -that to break the signet of the grave, and take from its resting place -the sacred property of relatives to gratify the corporation’s mercenary -curiosity, would be worse than Shylock’s demand [432]. - - - - -|160| - -CHAPTER XIII. - -DENTISTS. - - -The need of dentists existed long before dentistry. The Preacher knew -of the inconveniences which arise when the grinders are few. Marcellus, -about B. C. 380, gave two receipts for toothache. One is, “Say, -‘argidam, margidam, sturgidam;’” the other is, “Spit in a frog’s mouth -and request him to make off with the complaint.” These are given in -Glenn’s “Laws affecting Medical Men.” - -In England, in the tenth and eleventh centuries, priests and monks -were the dentists of the day. Afterwards, a decree of the Council of -Tours having forbad clergymen undertaking or engaging in any bloody -operation, all surgical practice fell into the hands of blacksmiths and -barbers. The latter soon became the more important class, and in 1461 -(as we have seen already), Edward IV. incorporated them as “The Freeman -of the Mystery or Faculty of Surgery.” By degrees other persons assumed -to practise pure surgery, and these two bodies, in 1560, were united by -Act of Parliament, and became “The Masters or Governors of the Mystery -and Commonalty of the Barbers and Surgeons of London.” By the third -section of this Act [433], because of fear of the spread of contagious -diseases, any one in the City of London using barbery or shaving, was -forbidden to |161| occupy any surgery, letting of blood, or any other -thing belonging to surgery, drawing of teeth only excepted. In those -days one wishing to find a drawer of teeth had to resort to one of -those shops where was exhibited the bandaged pole as a sign or symbol -that “all the King’s liege people there passing by might know at all -times whither to resort in time of necessity.” - -Something more than a sign is now required of dental surgeons. The -Royal College of Surgeons in England has now the power to appoint -examiners for testing the fitness of persons to practise as dentists, -and to grant certificates of such fitness. To become a Licentiate of -Dental Surgery in England, it is necessary to be engaged for four years -in the acquirement of professional knowledge; to attend at a recognized -school one course of lectures, at least, in anatomy, physiology, -surgery, medicine, chemistry, and materia medica, and a second course -on the anatomy of the head and neck; one course on metallurgy, and -two on dental surgery and anatomy, dental physiology and mechanics; -to have dissected for nine months; to have taken a course of chemical -manipulation; to have attended a hospital for two or more sessions; -and to have spent three years in acquiring practical familiarity in -mechanical dentistry under a competent practitioner; and then to pass -the examination required by the board. - -In Ontario, “The Royal College of Dental Surgeons” has power to appoint -a Board of Directors, who have authority to fix the curriculum of -studies to be pursued by students, to determine the period during which -they must be employed under a practitioner, to appoint the examiners, -and arrange the examinations, for those who desire to obtain a license -to practise dental surgery in the province. The Board may also confer -the title of “Master of Dental Surgery” upon any licentiate who passes -certain examinations and |162| conforms with certain regulations. The -College is composed of all those entitled to practise in the Province; -and no one who is not a member of the College can practise dentistry -for hire, gain or hope of reward, or pretend to hold, or take, or use -any name, title, addition or description, implying that he holds a -license to practise, or that he is a member of the College, or shall -falsely represent, or use any title representing that he is a graduate -of any dental college, under a penalty of $20 and costs for every -offence, to be recovered in a summary way before a magistrate, or in a -Division Court by suit. Persons contravening the Act cannot recover for -work done or materials provided. Of course, the Act does not interfere -with legally qualified medical practitioners [434]. - -Dentists are subject to the same rules, as to negligence, as are -physicians or surgeons [435], and if by a culpable want of attention and -care, or by the absence of a competent degree of skill and knowledge, -a D.D.S. causes injury to a patient, he is liable to a civil action -for damages, unless, indeed, such injury be the immediate result of -intervening negligence on the part of the patient himself, or unless -such patient has by his own carelessness directly conduced to the -injury [436]. The law is ever reasonable; so it only requires of a -dentist a reasonable degree of care and skill in his professional -operations, and will not hold him answerable for injuries arising -from his want of the highest attainments in his profession. The rule -is, that the least amount of skill with which a fair proportion of -the practitioners of a given locality are endowed, is the criterion -by which to judge of the professional man’s ability or skill [437]. -As far as the liability is concerned, no distinction is made |163| -between those who are regular practitioners and those who are not so; -the latter are equally bound with the former to have and to employ -competent skill and attention. - -A patient must exercise ordinary care and prudence [438]; so that, if -one tells the dentist to pull out a tooth, but does not say which one -is to go, and the wrong one is taken out, the sufferer has no legal -ground of complaint, unless, indeed, it is quite apparent which is -the offending member. A patient may have been a little careless and -negligent; still, if the dentist has been so very neglectful of his -duty that no ordinary care on the part of the patient would have -prevented the mistake or injury complained of, the injured party will -recover, _i.e._, recover damages for the injury received [439]. - -The fact that one has taken chloroform will not affect his rights -or remedies against the tooth-puller for any mistake or negligence. -The maxim _vigilantibus, non somnientibus jura subveniunt_, has -no reference to people put to sleep by anæsthetics. In New York, -two dentists undertook to extract a tooth from a patient while the -latter was under the influence of laughing gas. During the operation -the forceps slipped, and part of the tooth went down the patient’s -throat, causing coughing and vomiting for four weeks, when—in a fit -of coughing—the tooth came up, and relief followed. The patient sued -for damages, and when the case came before it, the Court said, “The -defendants (the dentists) knew that the plaintiff (the patient) -while under the influence of the anæsthetic, had no control of his -faculties, that they were powerless to act, and that he was unable to -exert the slightest effort to protect himself from any of the probable -or possible consequences of the operation which they had undertaken -to perform. He was in their |164| charge and under their control -to such an extent that they were required to exercise the highest -professional skill and diligence to avoid every possible danger; -for the law imposes duties upon men according to the circumstances -in which they are called to act. In this case, skill and diligence -must be considered as indissolubly associated. The professional man, -no matter how skilful, who leaves an essential link wanting, or a -danger unguarded in the continuous chain of treatment, is guilty of -negligence, and if the omission results in injury to the patient, the -practitioner is answerable. The quantum of evidence necessary to make -out a _primâ facie_ case of negligence is very slight in some cases, -while in others a more strict proof is required. Often the injury -itself affords sufficient _primâ facie_ evidence of negligence. * * * -There was evidence offered by the plaintiff showing, that while the -defendant drew the tooth, the forceps slipped. This fact, combined with -the unusual circumstance that the tooth went down instead of coming -up, was sufficient to carry the case to the jury upon the question -of negligence. The trial Judge held that while the affirmative was -upon the plaintiff to prove negligence, the fact that the defendants, -instead of taking the plaintiff’s tooth out, let it go down his -throat, was sufficient evidence to carry the question of negligence -to the jury, to the end that they might determine whether, in the -light of all the circumstances, the defendants had exercised the skill -and care which the exigencies of the case required. This ruling was -correct” [440]. - -Boyle’s case is an interesting one on the subject of the use of -chloroform. He was a street-car driver; a vicious horse by a kick threw -him from his platform, so that he hit his head against a tree-box. -He was picked up insensible and carried into a surgery; this he was -enabled to leave |165| in a couple of hours, and the following day -went to work again. In course of time he had a toothache, and went to -a Dr. Winslow’s to have it extracted, intending to take chloroform. -The chloroform was administered, but did not operate as soon as usual, -exciting rather than tranquilizing B. Insensibility, however, having -been finally obtained, the teeth were taken out, the doctor giving -the anæsthetic from time to time during the operation, as symptoms of -returning consciousness appeared. Boyle walked home shortly afterwards, -feeling, however, dizzy, and being uncertain in his gait; these -unpleasant symptoms continued even after reaching his house. The next -day, thickness of speech and numbness of one arm and side came on, -with partial paralysis. From this he was still suffering, when a jury -was called upon to say whether his state was due to the neglect of the -dentist or not. The Judge told the jury that, even if they doubted -the safety of the agent employed (chloroform), there was still a -consideration of the highest reason which they ought not to disregard. -He remarked, “All science is the result of a voyage of exploration, -and the science of medicine can hardly be said to have yet reached -the shore. Men must be guided therefore by what is probably true, and -are not responsible for their ignorance of the absolute truth which -is not known. If a medical practitioner resorts to the acknowledged -proper sources of information—if he sits at the feet of masters of high -reputation and does as they have taught him—he has done his duty, and -should not be made answerable for the evils that may result from errors -in the instruction which he has received. * * * He who acts according -to the best known authority is a skilful practitioner, although -that authority should lead him in some respects wrong. * * * If the -plaintiff was from previous circumstances predisposed to paralysis, -it might well happen that the extraction of his teeth, |166| without -the chloroform, or the use of the chloroform without the extraction, -would bring on a paralytic attack. Even if this was the case, still it -would not be just to make the defendant answerable for consequences -which he could not foresee, which were not the ordinary or probable -result of what he did. He was only bound to look to what was natural -and probable, to what might reasonably be anticipated. Unless such -guard is thrown around the physician his judgment may be clouded, or -his confidence shaken by the dread of responsibility, at those critical -moments when it is all important that he should retain the free and -undisturbed enjoyment of his faculties, in order to use them for the -benefit of the patient” [441]. - -In the olden time, front teeth were considered very valuable. Our -ancestors appear to have used them in fighting, and the hurting of a -man so as to render him less able in fighting to defend himself or -annoy his adversary, was considered a misdemeanor of the highest kind, -and spoken of by my Lord Coke as the greatest offence under felony. To -cut off an ear or strike off a nose was nothing to the knocking out of -a fore-tooth, for a nose or an ear is useless in a fight—doubtless they -are in the way [442]. According to that system of punishment introduced -into England by the Engles, which compensated every injury by a money -payment, a front tooth was valued highly, and one who deprived another -of such a member had to pay six shillings, while breaking a rib only -cost half as much, and shattering a thigh only twelve shillings [443]. - -The fact that a dentist extracts teeth for love and not for money -does not relieve him of his liability for failure to perform his -work properly [444]; and if one is foolish enough |167| to allow an -ignorant apprentice to practise on his teeth, he can still recover from -the dentist for any injuries [445]. It is a good answer to an action -brought by a dentist to recover payment for his work and labor, that -the defendant has been injured instead of benefited by the plaintiff’s -treatment, either because of his want of skill or his negligence. So, -when Mr. Gilpin went to Mr. Wainwright to have a tooth extracted, and -Wainwright gave him chloroform, and then pulled out the wrong tooth, -and Gilpin declined to pay for the performance, alleging a want of -consideration, the dentist sued for his account, but the Court gave -judgment against him [446]. If the dentist’s bill has been increased -owing to his own mistake or wrong doing—as where being employed to pull -out one tooth and insert a false one, he pulled out two, and so had to -put in two; he cannot recover for this additional amount of work. Lord -Kenyon well put this when he said: “If a man is sent for to extract a -thorn which might be pulled out with a pair of nippers, and through his -misconduct it becomes necessary to amputate the limb, shall it be said, -that he may come into a court of justice to recover fee for the cure -of the wound which he himself has caused?” [447]. To put the question -is to give the answer. In fact, in such a case as the one put, it -would appear that not only could no recovery be had for the additional -services rendered necessary by the dentist’s own want of proper care, -but the man whose grinders were thus made few would be entitled to a -further deduction from the bill for the bodily suffering and damage he -had sustained [448]. - -One cannot reasonably expect to have teeth as well fitted to the mouth -by art as nature. Mrs. Henry got a set of artificial ones from Dr. -Simonds; when put into her |168| mouth, she complained that they felt -odd and pained her. The plate was somewhat filed, but she was still -dissatisfied, and declined to pay the bill. It was then agreed that she -should take them away and try them for a day or two; this was done, -and again she returned them, declining to pay. The doctor then sued, -and the evidence as to whether the teeth fitted was conflicting. One -testified that they were a good piece of work; another, that they were -a fair average piece of work; while a third said that they were nothing -extra. The Judge instructed the jury that if Simonds had used all the -knowledge and skill to which the art had at the time advanced, that -would be all that could be required of him. The verdict was for the -defendant. On an application for a new trial the court considered the -instructions erroneous and granted a new trial, saying: “that surgeons -are held responsible for injuries resulting from a want of ordinary -care and skill. The highest degree of skill is not to be expected, -nor can it reasonably be required, of all. The instruction given was -* * * * undoubtedly correct, and no more would be required of him. But, -upon legal principles, could so much be required of him? We think not. -If it could, then every professional man would be bound to possess -the highest attainment, and to exercise the greatest skill in his -profession. Such a requirement would be unreasonable” [449]. - -It is a dangerous thing for both parties for the dentist to try a new -instrument or a new _modus operandi_ for the first time—doing so the -Court once said was a rash act, and he who acts rashly acts ignorantly. -Using a new instrument is acting contrary to the known rule and usage -of the profession [450]. One cannot become an experimentalist except at -his own peril. |169| - -A dentist, at a lady’s request, prepared a model of her mouth, and -made two sets of artificial teeth for her. In response to a letter -notifying her that they were ready, and asking when he could come and -put them in, the dentist received the following note: “My dear Sir, I -regret, after your kind effort to oblige me, my health will prevent my -taking advantage of the early day. I fear I may not be able for some -days. Yours, etc., Frances P.” Very shortly the lady died. The dentist -sued her executors for £21, but he failed to recover. The court held -that a contract to make a set of teeth is a contract for the sale of -goods, wares or merchandise within the meaning of the seventeenth -section of the Statute of Frauds; and that as by the terms of the -contract the teeth were to be fitted to the lady’s mouth, and as this, -through no default on her part, was never done, her executors were not -liable to the dentist for work done and materials provided; nor was the -letter a sufficient memorandum within the meaning of the Act referred -to. Counsel for the plaintiff and the Court seemed to differ widely -in their opinions of the artistic nature of tooth-making. The former, -arguing that the deceased had in truth contracted for the skill of the -dentist, and that the materials were merely auxiliary to the work and -labour, said this case was not to be distinguished from that of an -artist employed to paint a picture; the ivory used was of insignificant -value as compared to the skill employed. Judge Crompton, however, said: -“Here the subject matter of the contract was the supply of goods. -The case bears a strong resemblance to that of a tailor supplying a -coat, the measurement of the mouth and the fitting of the teeth being -analogous to the measurement and fitting of the garment” [451]. - -A similar view of the standing of a dentist was taken by the Court in -Michigan, when it held that he was a “mechanic.” The Court observed, -“A dentist, in one sense, is |170| a professional man, but, in another -sense, his calling is mainly mechanical, and the tools which he employs -are used in mechanical operations. Indeed, dentistry was formerly -purely mechanical, and instruction in it scarcely went beyond manual -dexterity in the use of tools; and a knowledge of the human system -generally, and of the diseases which might affect the teeth and render -an operation important, was by no means considered necessary. Of late, -however, as the physiology of the human system has become better -understood, and the relations of the various parts and their mutual -dependence become more clearly recognized, dentistry has made great -progress as a science, and its practitioners claim, with much justice, -to be classed among the learned professions. It is nevertheless true -that the operations of the dentist are, for the most part, mechanical, -and so far as tools are employed, they are purely so, and we could not -exclude these tools from the exemption which the statute makes, without -confining the construction of the statute within limits not justified -by the words employed” [452]. On the other hand, in Mississippi, the -Court said, “A dentist cannot be properly denominated a ‘mechanic.’ It -is true that the practice of his art requires the use of instruments -for manual operations, and that much of it consists in manual -operations; but it also involves a knowledge of the physiology of the -teeth, which cannot be acquired but by a proper course of study, and -this is taught by learned treatises upon the subject, and as a distinct -though limited part of the medical art, in institutions established for -the purpose. It requires both science and skill, and if such persons -should be included in the denomination of ‘mechanics,’ because their -pursuit required the use of mechanical instruments and skill in manual -operation, the same reason would include general surgeons under the -same denomination, because the |171| practice of their profession -depends in a great degree upon similar instruments and operative skill; -nor could such a pursuit properly be said to be a trade” [453]. - -False teeth have been considered necessaries for a wife. One Andrews -had a conversation with Gilman, a dentist, as to the latter furnishing -the former’s wife with a plate of mineral teeth, and he agreed to pay -for certain other dental services rendered to Mrs. A. The plate was -furnished while Mr. and Mrs. A. were living together, and it was quite -suitable to the former’s circumstances and station in life; he saw it, -knew whence it came, raised no objection to it, still he declined to -pay for it. The Court, however, held him liable, not only because the -wife being permitted to retain the plate, and the other circumstances, -showed her authority to make the purchase, but also on the ground that -the teeth were some of those necessaries wherewith a husband is bound -to furnish his wife [454]. - -A dentist must not take any unfair advantage of his patient. Some -thirty years ago, one Captain Simpson, a very old seaman and a -pensioner in Greenwich Hospital, gave a bill of exchange, payable -eight months after date, for £262 10s. to one Davis, a London dentist, -purporting to be for value received. Davis said, the real bargain was -that he should during the whole of the Captain’s life attend to his -teeth, and supply him with new ones from time to time. He also said -that a new set of teeth would cost from £30 to £50. The bill was in the -handwriting of D.; it was given in his house when no third person was -by, and it was never heard of until after the captain’s death, which -took place before it was due. There was no writing as to the teeth. -The executors of Simpson declined to pay, whereupon Davis handed the -note over to a creditor of his own, |172| who sued both parties. -The executors filed a bill in chancery, impeaching the document for -fraud, and asking that it might be delivered up to them. The Court -thought that it was quite impossible for any reasonable being to draw -any inference from the materials before it, but that it was a case of -fraud—nay, a gross fraud, and the decree was made as asked [455]. Sir -Launcelot Shadwell thought that the case had points of resemblance to -that of _Dent_ v. _Bennett_ [456], in which a medical man bargained for -a very large sum of money to attend a person of advanced years until -death; but in that case the doctor had to attend to the whole human -body, not merely to a particular part of it. - -One dentist must not imitate too closely the sign or card of a fellow -practitioner. One Colton alleged that he had purchased from a Dr. G. -Q. Colton the right to use the name “Colton Dental Association” in -connection with the use of nitrous-oxide gas to alleviate pain in -the extraction of teeth, and that he used the same in advertisements -and prominently displayed it on signs; that the defendant, who had -been in his employment, left him, opened dental rooms in the same -street, issued cards announcing that he was “formerly operator at the -Colton Dental Rooms,” and extracted teeth without pain by the use of -nitrous-oxide gas, and put a sign to the same purport over his door, -but the words “formerly operator at the,” upon cards and sign, were -in small and almost illegible letters, while the words “Colton Dental -Rooms” were very conspicuous; the signs were very similar in shape, -size, &c., and were hung on the same side of the street, in the same -manner, and might readily be mistaken the one for the other, especially -by suffering patients impatient for relief. An injunction against the -defendant’s cards and signs was granted [457]. |173| - -And where Morgan and Schuyler, two dentists, dissolved partnership, -S. bought M.’s interest in the fixtures and in the lease of the -room, and continued business therein. M. removed his name from the -sign, but S. replaced it, and put above, in letters so small as to -be nearly imperceptible, his own name with the words “successor to.” -The agreement of dissolution did not prohibit M. from engaging in the -business, so he opened an office therefor in another part of the city. -He then applied to the Court to restrain his late partner from the -use of his name as mentioned. He was successful in his action. But -the Court thought that S. would have kept within his rights if he had -merely described himself as “late of” the firm [458]. - - - - -|174| - -CHAPTER XIV. - -DRUGGISTS. - - -A druggist, the Supreme Court of Louisiana says, means “one who sells -drugs without compounding or preparing them: and so is a more limited -term than apothecary [459].” - -A commission merchant, dealing principally in alcohol, is not a -druggist, within the meaning of the Massachusetts’ Act, regulating the -sale of alcohol by druggists [460]; and although whiskey may be sold by -druggists in comparatively small quantities as medicine, and doubtless -a great many people so take it, still it was held that fifty barrels of -whiskey remaining in a bonded warehouse at the time of his death would -not pass under the will of a wholesale and retail druggist bequeathing -his stock of medical drugs, etc. The Court considered fifty barrels of -whiskey wholly disproportionate to the ordinary stock of medicine and -drugs kept on hand by the testator—too much sack for the bread [461]. -One may be an apothecary or druggist although he does not actually -compound his medicines [462]. - -In the early days in England, the grocers, or poticaries, who formed -one of the trade guilds of London, united with their ordinary business -the sale of such ointments, simples |175| and medicinal compounds as -were then in use. In the days of Henry VIII., the medical department -of the grocers’ trade being greatly increased, shops were established -for the exclusive sale of drugs and medicinal and all kinds of -chemical preparations. We have a graphic description of one of these -apothecaries about the days of “Good Queen Bess,” in the words of the -prince of English dramatists: - - ——I do remember an apothecary, - And hereabouts he dwells, which late I noticed - In tatter’d weeds, with overwhelming brows, - Culling of simples: meagre were his looks, - Sharp misery had worn him to the bones, - And in his needy shop a tortoise hung, - An alligator stuff’d, and other skins - Of ill-shaped fishes: and about his shelves - A beggarly account of empty boxes, - Green earthen pots, bladders and musty seeds, - Remnants of pack thread and old cakes of roses - Were thinly scattered to make up a show. - - ROMEO AND JULIET, Act. V., SC. 1. - -Until 1868, any person whatever might open what is called a chemist’s -shop in England, and deal in drugs and poisons. In that year, however, -the Pharmacy Act was passed, which prohibits any person engaging in -the business of, or assuming the title of, Chemist and Druggist, or -dispensing chemicals or drugs, unless he be registered under that Act. -And to be registered one must pass an examination in Latin, English, -arithmetic, prescriptions, practical dispensing, pharmacy, materia -medica, botany and chemistry. - -Under the Ontario Act [463] there is a College of Pharmacy, managed -by a Pharmaceutical Council who grant certificates of competency to -practise as pharmaceutical chemists, prescribe the subjects on which -candidates are to be |176| examined, and arrange for the registration -of chemists. No one, save those registered or their employeés, -is authorized to compound prescriptions of legally authorized -medical practitioners. The Act, however, does not apply to medical -practitioners. But, save as aforesaid, no one can retail, dispense, -or compound poisons, or sell certain articles named, or assume or use -the title of “Chemist and Druggist,” or “Chemist,” or “Druggist,” or -“Pharmacist or Apothecary,” or “Dispensing Chemist or Druggist,” unless -he has complied with the Act. - -The Code Napoleon recognizes two classes of vendors of drugs and -medicines, apothecaries and druggists. The former, who are assumed to -be pharmaceutically educated, are alone allowed to sell compounded -medicine, the latter who are classed with grocers are only permitted to -sell drugs of a simple character in bulk and at wholesale [464]. In the -United States, wherever statutes do not otherwise direct, apothecaries -and druggists are put upon the common law footing of provision vendors, -and may sell in any quantities articles in which they deal. - -A druggist is held to a strict accountability in law for any mistake -he may make in compounding medicine or selling his drugs. By the -statute law of England it is declared to be the duty of every person -using or exercising the art or mystery of an apothecary to prepare -with exactness, and to dispense, such medicines as may be directed for -the sick by any physician [465]. And by the same Act, for the further -protection, security, and benefit of George the Third’s subjects it was -declared, that if any one using the art or mystery of an apothecary, -should deliberately or negligently, unfaithfully, fraudulently or -unduly make, mix, prepare or sell any medicines, as directed by any -prescription signed by any |177| licensed physician, such apothecary -shall, on conviction before a Justice of the Peace, unless good cause -be shown to the contrary, forfeit for the first offence £5, for second, -£10, and for third he shall forfeit his certificate. But apart from any -statute, whenever a druggist or apothecary (using the words in their -general sense) sells a medicine, he impliedly warrants the good quality -of the drugs sold; and besides that, he warrants that it is the article -that is required and that it is compounded in every prescription -dispensed by him _secundum artem_. Like the provision dealer, the -pharmaceutist is bound to know that the goods he sells are sound, -_i.e._, competent to perform the mission required of them, and being so -presumed to know, he warrants their good qualities by the very act of -selling them for such. The rule, “Let the buyer beware,” does not apply. - -In some way Fleet and Simple got cantharides mixed with some snake -root and Peruvian bark. Unfortunately Hollenbeck, requiring some of -this latter mixture, bought this that these druggists had, took it as -a medicine, and in consequence suffered great pain, and had his health -permanently impaired. He sued for damages, and recovered a verdict for -$1,140. The defendants asked for a new trial, but the Court refused it -saying, “Purchasers have to trust to a druggist. It is upon his skill -and prudence they must rely. It is his duty to know the properties of -his drugs, to be able to distinguish them from one another. It is his -duty so to qualify himself, or to employ those who are so qualified, -to attend to the business of compounding and vending medicines and -drugs, as that one drug may not be sold for another; and so that, when -a prescription is presented to be made up the proper medicine, and none -other, be used in mixing and compounding it. The legal maxim should be -reversed, instead of _caveat emptor_ it should be _caveat venditor_, -_i.e._, let him be certain that he does not sell |178| to a purchaser -or send to a patient, one thing for another, as arsenic for calomel, -cantharides for, or mixed with snake root and Peruvian bark, or even -one innocent drug calculated to produce a certain effect, in place of -another sent for and designed to produce a different effect. If he does -these things he cannot escape civil responsibility upon the alleged -pretext that it was an accidental or an innocent mistake. We are asked -by the defendants’ attorneys in their argument, with some emphasis, -if druggists are in legal estimation, to be regarded as insurers. The -answer is, we see no good reason why a vendor of drugs, should in his -business be entitled to a relaxation of the rule which applies to -vendors of provisions, which is, that the vendor undertakes and insures -that the article is wholesome [466].” - -The general customer is not supposed to be skilled in the matter of -drugs, but in the purchase he must rely upon the druggist to furnish -the article called for; and in this particular business the customer -who has not the experience and learning necessary to a proper vending -of drugs, will not be held to the rule that he must examine for -himself, it would be but idle mockery for the customer to make the -examination when it would avail him nothing. On the contrary, the -business is such that in the very nature of things, the druggist -must be held to warrant that he will deliver the drug called for and -purchased by the customer [467]. - -It is the duty of the druggist to know whether his drugs are sound or -not, and it is no answer to his want of knowledge to say, that the -buyer had opportunities for inspection, and could judge for himself of -the quality of goods [468]. - -If a druggist miscompounds a medicine, or intentionally deviates from -the formula, he commits a tortious act, and |179| if any injury -arises to another through his ignorance or neglect he is liable. Even -if a physician writes a prescription wrongly it is expected that the -druggist will know enough to detect the error, and whether he does so -or not he still compounds it at his peril. For one man’s negligence -or omission of duty is no palliation of another’s, and under the -doctrine of joint liability the apothecary or druggist who compounds, -knowingly or not, a noxious prescription, commits a joint tort with the -physician who writes it [469]. And in an action against a druggist for -injury through the negligence of his clerk in selling sulphate of zinc -for Epsom salts, it is no defence to say that the subsequent medical -treatment was negligent [470]. - -A wholesale druggist is liable in the same way as a retail, when he -supplies substances notoriously dangerous to health or life, and -he impliedly warrants the articles to be as represented by their -conventional designation, and if they are not so, he is liable for all -damages that may ensue from his misrepresentation [471]. - -If a druggist affixes to a medicine, or drug, a label bearing his name -and stating it to have been prepared by him, he makes the warrant only -more notorious, and by so doing (inasmuch as it is an invitation to -the public to confide in his representation), is ever after estopped -from denying responsibility for any injury which may have arisen out -of defects in its quality, or errors in its composition. So long as -the label is attached, it is an affirmation of the good quality of -the article and its correct composition, to every one who relies upon -it when buying. But as some articles deteriorate in time, what is -said in relation to the liability of the vendor applies only to the -article at the time it leaves |180| his hands. He only warrants its -good qualities then, but no longer, and his representation affirms -that much, and no more [472]. The subject of labels was carefully -considered in _Thomas_ v. _Winchester_ [473], where Ruggles C.J. gave -judgment. Mary Ann Thomas was ordered a dose of extract of dandelion, -her husband bought what he believed was dandelion from Dr. Foord, -druggist and physician; but it was extract of belladonna. The jar -was labelled ‘½ ℔ dandelion, prepared by A. Gilbert, No. 108 John -street, N. Y.’ Foord bought it as dandelion from James S. Aspinwall, -druggist, who bought it from defendant, a druggist, 108 John street. -Defendant manufactured some drugs and purchased others, but labelled -all in the same way. Gilbert was an assistant who had originally owned -the business. The extract in the jar had been purchased from another -dealer. The two extracts are alike in colour, consistency, smell and -taste. Gilbert’s labels were paid for by defendant and used in his -business with his knowledge and consent. A non-suit was moved for on -the ground, that defendant being a remote vendor and there being no -privity or connection between him and the plaintiff, the action could -not be sustained. The Court said, “Gilbert, the defendant’s agent, -would have been punishable for manslaughter if Mrs. Thomas had died in -consequence of taking the falsely labelled medicine. Every one who by -his culpable negligence causes the death of another, although without -intent to kill, is guilty of manslaughter [474]. This rule applies not -only where the death of one is occasioned by the neglectful act of -another, but where it is caused by the neglectful omission of a duty -by that other [475]. Although the defendant W. may not be answerable -criminally for the neglect |181| of his agent, there can be no doubt as -to his liability in a civil action, in which the action of the agent is -to be regarded as the act of the principal. The defendant’s neglect put -human life in imminent danger. Can it be said that there was no duty on -the part of the defendant to avoid the creation of that danger by the -exercise of greater caution? Or that the exercise of that caution was a -duty only to his immediate vendee, whose life was not endangered? (He -being a dealer and not a customer.) The defendant’s duty arose out of -the nature of his business, and the danger to others incident to its -mismanagement. Nothing but mischief like that which actually happened -could have been expected from sending the poison falsely labelled into -the market, and the defendant is justly responsible for the probable -consequences of the act. The duty of exercising caution in this respect -did not arise out of the defendant’s contract of sale to Aspinwall. -The wrong done by the defendant was in putting the poison unlabelled -into the hands of Aspinwall as an article of merchandise to be sold, -and afterwards used, as the extract of dandelion by some person then -unknown. The defendant’s contract of sale to Aspinwall does not excuse -the wrong done the plaintiffs. It was part of the means by which the -wrong was effected. The plaintiffs’ injury and their remedy would have -stood on the same principle if the defendant had given the belladonna -to Dr. Foord without price, or if he had put it in his shop without his -knowledge under circumstances that would have led to its sale on the -faith of the labels.” - -Ordronaux says (sec. 186): It cannot be denied that had Mrs. Thomas -died, Foord would, equally with Gilbert, have been guilty of -manslaughter, since whether he intended it or no, he was doing an -unlawful act in dispensing a poison for a salutary medicine. While -then it may be proper enough to rely upon labels and warranties of -others, |182| in dealing with ordinary substances, still when it comes -to articles of a character dangerous to health or life, the law will -presume knowledge of their quality in those professionally dealing in -them, and exact a degree of skill and care commensurate with the risks -incurred. Here it is _caveat venditor_ instead of _caveat emptor_. - -In Kentucky, a druggist sold croton oil instead of linseed oil for a -patient, who, in consequence of the mistake, died. His widow was held -entitled to full damages against the seller [476]. - -If a druggist negligently sell a deadly poison as and for a harmless -medicine to A., who buys it to administer to B., and gives B. a dose of -it as a medicine, from the effect of which he dies, a right of action -against the druggist survives to B.’s representative, notwithstanding -the want of privity of contract between B. and the druggist [477]. And -this is the rule, also, when the sale has been made by the apothecary’s -assistant [478]. - -Joseph George, and Emma, his wife, sued Skivington, a druggist, -alleging that he, in the course of his business, professed to sell a -chemical compound made of ingredients known only to him, and by him -represented to be fit for a hairwash without causing injury to the -person that used it, and to have been carefully compounded by him; that -Joseph thereupon bought of the defendant a bottle of this hairwash, to -be used by Emma, as the defendant knew, and on the terms that it could -be so safely used, and had been so compounded; yet the defendant had so -negligently and unskilfully conducted himself in preparing and selling -the hairwash, that it was unfit to be used for washing the hair, -whereby the plaintiff, Emma, who used it for that |183| purpose was -injured. The Court held that a good cause of action was shewn [479]. - -A Massachusetts apothecary sold sulphide of antimony by mistake for -black oxide of manganese. The two look alike, but differ in this, that -the preparation of manganese may be safely mixed with chlorate of -potassia for many useful purposes; but if that antimony is mixed with -that chlorate, an explosive compound is formed. The buyer, supposing -he had manganese, proceeded to mix it with potassia, having bought the -article for that purpose. But, it being antimony, the compound which -he made exploded, broke his head, damaged his hearing, and destroyed -the furniture of his laboratory. Yet the Court held that the druggist -was not chargeable with these damages, because he did not know that the -article he sold was to be mixed with potassia, and did not sell it for -that purpose. Kept or used by itself, as he sold it, it would have been -innocuous. He was not to blame for the mixing, the real cause of the -injury [480]. - -In England [481], a chemist and druggist was indicted for manslaughter, -but was acquitted. The deceased had been in the constant habit of -getting aconite and occasionally henbane from Noakes; on this occasion -he sent two bottles of his own, one marked, “Henbane, 30 drops at a -time.” The druggist by mistake put the aconite into the henbane bottle, -the dose of thirty drops was taken, and the customer was no more. Erle, -C.J., told the jury that although there might be evidence of negligence -sufficient for a civil action, still that they could not convict unless -there was such a degree of complete negligence as the law meant by the -word “felonious,” and that in this case he did not think there |184| -was sufficient to warrant that. But Tessymond, a chemist’s apprentice, -was found guilty of manslaughter for causing the death of an infant by -negligently giving to a customer who asked for paregoric to give to the -infant (a child of nine weeks old), a bottle with a paregoric label, -but containing laudanum, and recommending a dose of ten drops [482]. - -One Jones recovered against a chemist and druggist of the name of -Fay, £100 for damages, because he, Fay, gave him blue pills for the -painters’ colic, such physic being improper [483]. A man, on the -advice of a friend, went to a drug store for ten cents worth of -“black-draught,” a comparatively harmless drug, of which he intended -to take a small glassful as a dose for diarrhœa. There was evidence -given by the clerk who sold the mixture, that at the shop he asked for -“black-drops,” the defendant, the proprietor, told him that that was -poison, that the dose was from ten to twelve drops, and advised him to -take another mixture; he refused, and the clerk (by the defendant’s -direction), gave him two drachms of “black-drops” in a bottle, with a -label bearing those two words written upon it, but nothing to indicate -the dose, or that it was poison. The man took the bottle home, drank -almost all its contents, and died the next morning from the effects of -so doing. In an action brought by the representative of the deceased -to recover damages for negligent killing by the defendant, it was held -that the Courts should have submitted to the jury the question as to -whether the defendant was not guilty of negligence in failing to place -upon the bottle a label, shewing that its contents were poisonous, and -that it erred in non-suiting the plaintiff. Afterwards in giving the -judgment of the Court of Appeal, Finch, J., said, “on such a state of -facts (as sworn to by the clerk) a verdict |185| against the defendant -would not be justified. Although no label marked ‘poison’ was put upon -the phial, and granting that by such omission the defendant was guilty -of misdemeanor and liable to the penalty of the criminal law (under the -statute of the State), still that fact does not make him answerable to -the customer injured, or to his representative in case of his death, -for either a negligent or wrongful act, when towards that customer he -was guilty of neither, since he fairly and fully warned him of all and -more than could have been made known by the authorized label. * * * -If the warning was in truth given, if the deceased was cautioned that -the medicine sold was a strong poison, and but ten or twelve drops -must be taken, he had all the knowledge and all the warning that the -label could have given, and could not disregard it and then charge the -consequences of his own negligent reckless act upon the seller of the -poison. But if no such warning was given, its omission was negligence, -for the results of which the vendor was liable both at common law and -by force of the statute.” But the Court considered that the clerk being -himself the one who had been negligent stood in a position to provoke -suspicion, arouse doubt and justify watchful and rigid criticism, and -that this joined with the conduct of the deceased, developed a question -of fact rather than of law, and that the Court below was right in -saying that the case should have been submitted to the jury [484]. - -Under the Ontario Pharmacy Act no one can sell certain poisons named -without having the word “Poison,” and the name of the article, -distinctly labelled upon the package; and if the sale is by retail, the -name of the proprietor of the establishment where it is sold, and the -address must also be on the label [485]. |186| - -Any person selling any poison, in violation of the Act, is liable to a -penalty of not more than $20 and costs for the first offence, and $50 -and costs for every subsequent offence; and one-half of the penalty -goes to the prosecutor; and no one selling in violation of the Act can -recover his charges. And one wilfully or knowingly selling any article -under pretence that it is a particular drug or medicine, when it is -not, is liable to the above penalties, besides any other to which he -may be liable irrespective of the Act [486]. - -In Georgia it was held, that where a druggist in good faith recommended -the prescription of another person to the owner of a sick horse, who -thereupon ordered him to put it up and paid for it, the owner had no -cause of action because the medicine had injured his horse, as the -stuff was properly prepared according to the prescription [487]. - -In England chemists and druggists are liable to the heavy penalty of -£500 if they sell to brewers or dealers in beer anything to be used -as a substitute for malt; they are also liable for adulterating, or -selling any adulterated, medicine; and on a second offence of this -kind, the name of the offender, his abode, and his crime may be -published in the newspapers at his expense [488]. - -An action can be maintained by a husband against a druggist to recover -damages for selling to the plaintiff’s wife, secretly, from day to day -large quantities of laudanum to be used by her as a beverage, and which -are so used by her to the druggist’s knowledge, without the knowledge -or consent of the husband, the druggist well knowing that the same was -injuring and impairing her health, and concealing the fact of such -sales and the use thereof from the husband; |187| in consequence of -which use by her the wife became sick and emaciated, and her mind was -affected, so that she was unable to perform her duties as such wife, -and her affections became alienated from her husband, and he lost her -society, and was compelled to expend divers sums of money in medical -and other attendance upon her [489]. - -In some of the American Courts it has been held that a statute -forbidding the sale or keeping for sale without authority of spirituous -or intoxicating liquors does not apply to druggists who keep such -liquors only for the purpose of mixing them with other ingredients, -according to prescriptions of physicians; and also for the purpose -of manufacturing such compounds as are commonly used by druggists to -be sold as medicines for remedies for sickness and disease [490]. The -question has often come up whether a compound sold by a druggist is to -be considered an intoxicating liquor, the sale of which is illegal, -or not. The rule laid down is, that so long as liquors retain their -characters as intoxicating liquors, capable of being used as beverages, -notwithstanding that other ingredients—roots or tinctures—may have been -mixed therewith, they fall under the ban of the law; but when they -are so compounded with other substances as to lose their distinctive -characters of intoxicating liquors, and are no longer desirable for -use as stimulating beverages, they are medicine and their sale is not -prohibited [491]. - -In Indiana a _bona fide_ sale of intoxicating liquor by a druggist -for medicinal purposes is not a violation of the statute regulating -the sale of such liquors, although the statute contains no exception -authorizing the sale of such |188| liquors, without license, for -medicinal, chemical or sacramental purposes. - -And that is the law in North Carolina, but not in Arkansas [492]. In -Iowa it was considered a breach of the law for a druggist to sell a -quart of whiskey to a stranger upon his simple statement that he was -accustomed to take it as a medicine and wanted it as such [493]. - -In Texas, where a druggist can only sell ardent spirits upon the -prescription of physicians in sickness, a druggist who is himself a -physician may sell to a sick patient without a prescription from anyone -else [494]. - - - - -|189| - -CHAPTER XV. - -PARTNERS, GOODWILL, ASSISTANTS. - - -A partnership [495] between medical men is an association of persons, -standing to one another in the relation of principals, for jointly -carrying out the objects of their profession, with an agreement to -share the profits. - -The general laws relating to partnerships apply to those of medical -men or dentists. There can be no partnership, as between themselves, -if the relationship of master and servant exists, or where there is -no joint interest. No particular form of words is needed to create -a partnership, nor need the agreement be in writing unless it is to -last for more than a year from the date. If an agreement to form a -partnership is broken an action will lie, if the terms of the agreement -be clear and distinct; but the performance of such an agreement will -not be compelled unless all the terms have been fixed and ascertained, -and a definite time for its duration agreed on. - -If one has been induced to enter the partnership through the fraud -or misrepresentation of the other, the party deceived may at his -option avoid the contract. But he should act promptly on discovering -the deception. Where a surgeon was induced to enter into partnership -with, and pay a large premium to another, in consequence of |190| -misrepresentations as to the amount of income derived from the -practice, a dissolution was decreed and a return of part of the -premium [496]; and where a practitioner took a partner and a premium, -and agreed to continue practising for three years, concealing the fact -that he was suffering from a disease which soon carried him off, his -executor was ordered to return part of the premium [497]. - -Partners are trustees and agents for one another, and must exercise -the most perfect good faith towards one another. One cannot sue the -other for his share of the profits until the accounts have been stated -and settled between them. One medical man cannot, as a rule, bind his -partner by borrowing money, even to pay partnership liabilities, or by -making or drawing promissory notes or bills of exchange; but he may -generally do so by simple contracts, within the scope of the business. - -In England, it appears that there is nothing illegal in the partnership -of a qualified and an unqualified practitioner, and that it will be -sufficient if only one member of the firm be registered [498]. - -A partnership may be dissolved by mutual agreement, or by the effluxion -of time. A wilful and permanent neglect of business is a ground for -dissolution; so is gross misconduct by a partner in reference to -partnership matters. Immoral conduct materially affecting the business -will be a ground for dissolution; also, insanity, or permanent -incapacity [499]. On a dissolution the partners may separately carry on -the business at any place, unless restrained by agreement. |191| - -Sir John Leach considered that in a partnership, between professional -persons, upon the death of one partner the good-will of the business -belonged to the survivor, and that he was not bound to account to the -representatives of the deceased partner for it [500]. - -A good-will attaches to a professional, as well as to any other kind of -business, and it is and may be the subject of purchase and sale; and -although it is not computable, and the sale of it is not enforceable by -an action for specific performance if it has not been estimated, yet it -does stand on the same footing as any other business, if the parties -have fixed a determinate price upon it, or have provided any other way -of fixing its value [501]. The good-will of a medical man’s business -is an asset of his estate which his representatives can sell, and for -which they must account if it is sold. But it is not clear that the -representatives can be compelled to find a purchaser [502]. - -Jessel, M. R., recently asked the question, “What is the meaning of -selling a medical practice?” And in answering his query he said, -“It is the selling of the introduction of the patients of the doctor -who sells to the doctor who buys, he has nothing else to sell except -the introduction. He can persuade his patients, probably, who have -confidence in him to employ the gentleman he introduces as being a -qualified man, and fit to undertake the cure of their maladies, but -that is all he can do. Therefore, when you talk of the sale of a -non-dispensing medical practice—of course, when a man keeps what is -called a doctor’s shop, there is a different thing entirely to sell—you -are really talking of the sale of the introduction to the patients, and -the length, the |192| character and duration of the introduction, the -terms of the introduction are everything. And there is something more, -according to my experience, in cases of the sale of medical practices; -there is always a stipulation that the selling doctor shall retire from -practice either altogether or within a given distance. It is so always, -and there is also sometimes a stipulation that he will not solicit the -patients, or shall not solicit them for a given time. They are both -very important stipulations as regards keeping together the practice -for the purchasing doctor” [503]. - -The general rule of law is, that any contract in general restraint of -trade or industry is illegal and void as contrary to public policy; -but such contracts are valid if they operate merely as a partial -restraint, and are made for good consideration, and not unreasonable. -Whether they are reasonable or not, is for the Court, not the jury, to -say. A contract made with an assistant, or with a partner, that upon -separating from the principal, or partner, he will not practise within -a certain section of country, or for a certain time, is valid when made -in consideration of instruction to be given, or pecuniary or other -benefits to be enjoyed in consequence of the partnership. The limits -must be reasonable, and when the contract is not to practise within so -many miles of a certain place, the distance will be measured “as the -crow flies,” unless otherwise mentioned [504]. - -Covenants, on the part of an assistant to a surgeon and apothecary, -not to practise on his own account for fourteen years, in a certain -town, or within ten miles of the town; and not at any time to practise -within five, seven, ten, twenty miles of certain places, have been -all respectively |193| held good [505]. The comparative populousness -of the district forbidden ought not to enter into consideration at -all; and an assistant to a dentist was held bound by a covenant not to -practise in London, notwithstanding that city had a population of over -a million [506]. But a stipulation not to practise within one hundred -miles of York, in consideration of receiving instruction in dentistry, -was held void [507]. - -A promise, whether verbal or written, made without good consideration -by a medical man not to exercise or carry on his profession within -certain limits is void. The stipulations in a contract not to -practise are divisible, and if part of them be unreasonable, and -therefore illegal and void, the agreement is not void altogether; and -the remaining stipulations, if valid, will not be affected by the -illegality of the others [508]. - -The relations of medical men to their apprentices, assistants and -pupils, are, as a rule, regulated by the ordinary law of master and -servant. No particular words are needed to create the relationship -of master and apprentice, or master and assistant, the intention of -the parties will be considered, nor need the agreement be in writing, -unless it is not to be performed within a year from the making -thereof [509]. A master is liable on contracts entered into by his -apprentice or assistant, when he has authorized him to enter into any -such contract, either expressly, or by implication. For instance, if an -assistant usually orders drugs |194| on credit, and the master usually -pays, the master will be held liable to pay for any goods of a similar -nature which the assistant may get for his own and not his master’s -use [510]. The master is also, as a rule, liable to a civil action for -the wrongful acts of his assistant, unless they be beyond the ordinary -scope of his employment; the plaintiff, however, must prove that the -injury was produced by want of proper skill, where the act complained -of is said to have arisen through want of skill [511]. But the master -will not be criminally responsible for the acts of his assistant or -apprentice, if the latter has caused the death of any one, unless, -indeed, he has expressly commanded or taken part in the acts [512]. In a -case of criminal negligence, the apprentice himself is responsible; if -a party is guilty of negligence, and death results, the party guilty of -that negligence is also guilty of manslaughter. - -An apprentice, or pupil, cannot be dismissed in as summary a way as an -ordinary servant for misconduct. In one case it was held that though a -person has a right to dismiss a servant for misconduct, still he has no -right to turn away an apprentice because he misbehaves; and that the -case of a young man, say of seventeen, who under a written agreement, -is placed with a medical man as “pupil and assistant,” and with whom a -premium is paid, is a case between that of apprenticeship and service; -and if such an one on some occasions comes home intoxicated, this alone -will not justify the surgeon in dismissing him. But if the “pupil -and assistant,” by employing the shop boy to compound the medicines, -occasions real danger to the surgeon’s practice, this would justify the -surgeon in dismissing him [513]. |195| - -Pupils and others admitted to hear the lectures of medical men, -whether such lectures are delivered _ex-tempore_, or from memory, or -from notes, although they may go to the extent, if they are able to do -so, of taking down the whole by means of shorthand, can do so only for -the purposes of their own information, and cannot publish the lectures -for profit without the consent of the lecturer [514]. - - - - -|197| - -INDEX. - - - A. - - ABORTION— - Evidence of experts in cases of, 116. - Criminality of, 146, 147. - - ACCIDENT— - Payment of medical men in cases of, 40, 41. - - ACCOUNT— - Must be in detail, 22. - - ADVERTISING QUACKS—132, 133. - - AMPUTATED LIMBS— - Ownership of, 143. - - ANATOMY— - A lawful study, 154, 157, 158. - Hindrances to study of, 149, 152. - In early days, 149, 150. - Provision made for study of, in England, 150, 153. - — — — — — in Canada, 151, 156. - — — — — — in United States, 155, 156. - - ANATOMY ACT OF 1832—153. - - ANGUINEUM—2. - - APOTHECARIES— - In England in early days, 11. - Incorporated in England, 12. - How regulated, 12. - Duties of, 12. - Fees of, 15, 16. - - ARTIFICIAL TEETH.—_See_ TEETH. - - ASSAULTS ON PATIENTS— - Attempting carnal intercourse with, 144. - Wantonly stripping patient, 144. - Taking layman to midwifery case, 144. - Liability for committing one as insane, 146. - - ASSISTANTS AND APPRENTICES— - Rules regulating, 193. - Master liable for, civilly, 193, 194. - — not liable criminally, 194. - — may recover for services of, 20. - Misconduct of, 194. - - ATTENDANCE— - Medical men neglecting, 72, 73. - Withdrawing from, 73, 74. - - B. - - BARBERS— - As practitioners, 4, 5, 6. - - BAUNSCHEIDT SYSTEM— - Layman practising, 47. - Liability for using, 89. - - BODIES— - Supply of, for dissecting, 150–156. - - BODY-SNATCHING—_See_ RESURRECTION, 152–157. - - BOOKS—_See_ SCIENTIFIC BOOKS, 99–105. - - BOTANIC PHYSICIANS—52, 54, 88. - - C. - - CARELESSNESS—_See_ NEGLIGENCE. - Of patient, 67–69. - When physician criminally liable for, 85–88, 91. - In treating internal diseases, 92. - - CHARACTER— - Defamation of, when actionable, 131, 134. - - CHEMIST AND DRUGGIST—_See_ DRUGGISTS. - - CHLOROFORM— - Care needed in using, 163–166. - - CIVIL LIABILITY— - For negligence—_See_ NEGLIGENCE. - For stealing corpse, 157. - - CLAIRVOYANT PHYSICIAN— - Must be licensed in Maine, 52. - Misrepresentations by, 142. - - CLERICAL PRACTITIONERS—3. - - COMMUNICATIONS BETWEEN PHYSICIAN AND PATIENT— - When not privileged, 93. - When privileged, 94–96. - - CONSULTATIONS—23. - - CONTAGIOUS DISEASES— - Precautions necessary when attending, 21, 143. - Exposing people suffering from, 147. - - CONTRIBUTORY NEGLIGENCE— - Of patient, 67–69. - - CORPSE— - Stealing, 152. - Who owns the, 153. - Selling, 153. - Raising, a misdemeanor, 154–156. - Civil liability for raising, 157. - Exhuming, when ordered, 159. - - CRIMINAL LIABILITY—_See_ CRIMINAL MALPRACTICE. - - CRIMINAL MALPRACTICE— - Definition of, 55 in, 82. - Immaterial whether physician licensed or not, 83, 84, 91. - What makes, 84, 85. - Physician acting honestly and _bonâ fide_, 89, 92. - Mistakes of druggists, 180, 181. - - CRITICISM— - When justifiable, 132, 133. - - CURE— - Not essential to right to pay, 20, 21. - No cure, no pay, 24. - Promising, 143. - Curious cures, 2, 3, 8. - - CONTRACT— - Between physician and patient, 141. - Not to practice, 192, 193. - - D. - - DAMAGES— - For personal injuries, 78, 80. - Rules for determining, 78, 79. - Not recoverable against representatives, 80. - In cases of death, 80, 81. - Only one action for same cause, 81. - Against negligent druggists, 177–185. - — — dentists, 162–167. - - DEATH— - Damages when negligence causes, 80, 81. - Evidence of experts as to cause of, 116–119. - - DECLARATIONS OF SICK PEOPLE— - When evidence, 96–98. - - DEFAMATION—129–137. - What libel, what slander, 129. - When actionable, 129, _et seq._ - Civil and criminal remedies, 130. - Imputing want of knowledge, 130. - — unprofessional conduct, 131–132. - — immorality, 134. - Holding up to ridicule, 132. - Justifiable criticism not, 132, 133. - Evidence in actions for, 135. - When physician liable for, 135–137. - - DENTISTS—Chapter XIII. - Early practitioners, 160, 161. - Subjects of examination for, 161, 162. - In Ontario, must be licensed, 162. - Liability for negligence, 162, 167. - Pulling wrong tooth, 163, 167. - Skill requirable, 164, 166. - Acting gratuitously, 166. - When services are useless, 167. - Are they mechanics? 169, 170. - Defrauding patient, 171, 172. - Appropriating signs of others, 172. - - DILIGENCE— - Must go along with skill, 64. - - DIPLOMA— - _Prima facie_ proof of skill, 64. - - DISCRETION— - As to modes of treatment, 25. - As to number of visits, 63. - - DISSECTION— - Provisions made for, 150, 151. - English Anatomy Act, 153. - Lawfulness of, considered, 157, 158. - - DRUGGISTS—Chapter XIV. - Definition, 174. - Old time, 175. - Requirements of, 175–176. - Liability for miscompounding, 176–178. - — — mistakes, 177–185. - — — quality of drug, 178. - — criminally, 180. - — for selling adulterating substances, 186. - — — — deleterious drugs, 186. - — — — intoxicants, 187, 188. - Warrants drug to be as represented, 179. - Label a warranty, 179–180. - - DRUGS— - Physician may charge for, 24. - Mistakes in selling, 177–186. - - DRUIDS—1–3. - - DUEL— - Medical man attending, 144. - - DUTY OF PHYSICIAN— - On undertaking charge of patient, 57. - Not bound to take charge, 57. - To possess ordinary care, diligence and knowledge, 58–61. - In cases of small-pox, 22, 144, 147. - - DYING DECLARATIONS— - Evidence in certain cases, 105. - - E. - - EARLY PRACTITIONERS—Chapter I. - - ENGLAND— - Early practitioners in—Chapter I. - Who may practice, 43. - Women may practice, 14. - - ENTRIES AGAINST INTEREST— - Admissible as evidence, 105, 106. - - EXPERIMENTS— - Liability on making, 71, 72, 168. - - EVIDENCE—_See_ EXPERTS AND EXPERT EVIDENCE, SCIENTIFIC BOOKS. - - EXPERTS AND EXPERT EVIDENCE— - Fees to medical witnesses, 27, _et seq._ - Excluding at trial, 106, 120. - Limiting number at trial, 106. - Rules for guidance, 106, 107. - When evidence of, admitted, 108, 117–120, 127. - Who may be experts, 109–114, 128. - The Court decides who may be, 113, 114. - Experts among the Romans, 109. - Opinions concerning, 110, 121–124. - Need not have made a special study, 112. - Better if they have, 112, 127. - Jury to decide weight to be given to, 114. - Opinions on morals, 115. - Do not speak as to merits, 115, 118, 125, 127. - Advisers of the Court, 115, 116. - Should state grounds of opinion, 116. - Admissible only as to matters of skill, 119. - Are not jurors, 119, 125. - Opinions on opinion, 119. - In insanity cases, 121–128. - What they may be asked, 124, 125. - Must hear all the evidence, 126. - Hypothetical cases, how put, 126, 127. - - F. - - FAMILY PHYSICIAN— - Recommending another, 148. - - FEES—_See_ PAYMENT OF MEDICAL MEN. - Under Roman Law, 15. - Of physicians, not recoverable at Common Law, 15, 16. - Recoverable under Medical Act, 15, 17. - Of surgeons and apothecaries, 15, 16. - Of physician and surgeon, 16. - In Scotland and the Colonies, 17. - In America, 17. - No express promise to pay necessary, 18. - How fixed, 18, 19. - Must be reasonable, 19. - In some countries fixed by law, 19. - Services of assistants, 20. - Not dependant upon cure, 20, 21. - But services must be of benefit, 20–24, 167. - Account should be in detail, 23. - For friendly visits, 24. - For drugs, 24. - Where no cure, no pay, 25. - To medical witnesses, 26, 27. - To medical experts, 27–31. - Exorbitant charges, 140. - Who must pay, 32. - - FRANCE— - Who may practise in, 44. - - FRIEND— - Prescribing as, fees, 24. - Not medical attendant, 24. - - G. - - GERMANY— - Who may practise in, 44. - - GIFTS TO MEDICAL MEN— - Are closely watched, 139. - When set aside, 139, 140. - When sustained, 140, 141. - - GOODWILL— - In professional partnerships, 191. - Sale of, 191. - - GRATUITOUS SERVICES— - Liability of physicians for, 61, 65, 66. - — — unprofessional men, 66, 67. - — — dentists, 166. - - GROSS NEGLIGENCE— - What is, 87, 88. - Liability for, 55. - - H. - - HAIR-DYE— - Noxious, damages for, 182. - - HOMŒOPATHISTS— - Regulations as to, in Ontario, 66. - Are Physicians in New York, 50, 54. - Are not Quacks, 132. - Consulting with, 134. - - HUSBAND— - When liable for attendance on wife, 35, 39. - When liable for artificial teeth for wife, 171. - Suing druggist for damages to wife’s health, 186. - - HYPOTHETICAL CASE— - How put, 126, 127. - - I. - - IGNORANCE— - Liability for gross ignorance, 55–61. - Criminal liability for gross, 55–88, 91, 92. - Imputing, when actionable, 130. - - IMMORALITY— - When actionable to impute, 134. - - IMPROPER TREATMENT— - When a defence to action, 20–24, 167. - Charges for, 20, 22, 167. - - INFANT— - Medicines and medical aid, necessary for, 39. - - INFECTIOUS DISORDERS— - Exposing persons suffering from, 147. - Duty of physicians in cases of, 22, 143, 147. - - INSANE PATIENT— - Not liable for negligence, 69. - - INSANITY CASES— - Evidence of experts, 121–128. - Opinions concerning, experts in, 121–124. - When expert evidence admissible, 124. - How to examine witnesses, 124–125. - Putting hypothetical cases, 126, 127. - Evidence of non-experts, 128. - Experts can only give opinions, 129. - Liability for committing in, 145–146. - Requisites for committal, 146. - - INTOXICATING LIQUORS— - When unlawful to give, 148. - Druggists selling, 187–188. - - IRELAND— - Early practitioners in, 6. - - L. - - LABEL OF DRUGGIST— - Is a warranty, 179–180. - - LECTURES— - Cannot be published by students attending them, 195. - - LIBEL—_See_ DEFAMATION. - - M. - - MALPRACTICE—_See_ CRIMINAL MALPRACTICE. - Defined, 55. - Consequences of, 55. - Civil and criminal, 55, 56, 83. - Some injury must be proved, 76. - Is a question for the jury, 76. - Cases of, should be construed in favor of physician, 76, 77. - Cases against physician rare, 77. - Actionable to charge one with, 133. - - MANIPULATION— - Practising, without license, 51. - - MANSLAUGHTER—_See_ CRIMINAL MALPRACTICE. - Physicians acting honestly and _bonâ fide_, 89, 90. - Druggist making mistake, 180–184. - - MASTER AND SERVANT—_See_ ASSISTANTS AND APPRENTICES. - Payment of medical attendance, 40. - - MEDICAL ACT OF ENGLAND— - Recovery of fees under, 17. - - MEDICAL ACT OF ONTARIO— - Recovery of fees under, 17. - - MEDICAL MAN— - Chaucer’s definition of, 7. - Had to be graduates in old times, 7. - Divisions under Henry VIII, 8. - Qualifications necessary to practise, 9, 48. - Qualifications under Henry VIII, 10. - No branches in America or Colonies, 17. - Discretion as to mode of treatment, 25. - As witnesses, 26. - Who must pay, 32–41. - Who may practise, 42. - The law favors no school, 42, 47. - Must practise according to school, 52, 53, 54. - One practising liable as, 54. - Duties when assuming charge, 57, 72, 73. - Must exercise ordinary care and diligence, 58. - Must keep up with the age, 61, 71. - Not liable for bad nursing, 70. - Rashly trying new experiments, 71. - Accepting retainer must attend, 72, 73. - Withdrawing from attendance, 73, 74. - Liability when not employed by patient, 74. - Action against, for defamation, 135–137. - Administering intoxicants, 148. - Relations with patients, 138–146. - Care necessary in choosing, 148. - - MEDICINE— - When first studied in England, 6. - First statute concerning, 8. - Evidence of experts as to, 118. - - MEMORANDA— - When may be used in court, 98. - - MIDWIFE— - Defamatory words when actionable, 130. - - MISREPRESENTATIONS— - To obtain money, 142, 143. - - MISTLETOE—1. - - MORALS— - Expert opinions on, 115. - - N. - - NECESSARIES— - Medicine and medical aid, 35, 39. - Artificial teeth, 171. - - NEGLIGENCE OF MEDICAL MEN— - Communicating contagious diseases, 22. - Liability for gross negligence, 55. - Judged from legal stand point, 56. - Defined, 56, 57. - Liability for, when causing injury, 57, 63, 167. - Medical men must exercise reasonable care and diligence, 58. - Sex no excuse, 61. - Where services are gratuitous, 65. - — — — voluntary, 65, 66. - Proximate cause, 69. - When requested to perform operation, 69. - Aggravated by nursing, 70. - General reputation unavailing, 71, 86. - Injurious treatment, 72. - Neglecting to attend, 72, 73. - Where not employed by patient, 74, 75. - Not liable for every mistake, 75. - Is a question for the jury, 76. - Amount of damages recoverable, 78–80. - Action for, does not survive against representatives, 80. - Where death is caused by, 80, 81. - Criminal negligence, 82–85. - Immaterial whether physician licensed or not, 83, 84. - Acting _bona fide_ no criminal liability, 89, 90. - Patient affected by mortal disease, 90, 91. - Imputing want of skill, when actionable, 130, 133. - Of dentists, 162, _et seq._ - Of druggists, 177, _et seq._ - - NEGLIGENCE OF PATIENT— - Responsible for careless choice of physician, 53. - Knowledge of physician’s ignorance, 57, 67. - Disobeying or neglecting orders, 67, 68. - What is contributory negligence, 68. - Insane patient’s negligence, 69. - - NEW YORK— - Who may practise in, 49–51. - - NURSING— - Aggravating the case, 70. - Liability of medical man for, 70. - - O. - - ONTARIO— - Who may practise medicine in, 45. - — — — dentistry in, 162. - — — — as druggists in, 176. - - OPINION—_See_ EXPERT EVIDENCE. - - P. - - PARENT AND CHILD— - Liability of parent for doctor’s bill, 33. - Rule in England and United States, 37, 38. - Statutory liability in England, 38, 39. - - PARTNERSHIP AMONG MEDICAL MEN— - Definition of, 189. - General rules applicable, 189. - Fraudulently inducing one to enter into, 189. - Conduct of partners, 190. - Dissolution, 190. - Interest of survivor, 191. - - PATIENT—_See_ RELATIONS WITH. - Calling homœopath, 54. - Physician not bound to take, 57, 72. - Must exercise prudence in selecting doctor, 67. - Must co-operate with doctor, 67, 68. - Must exercise ordinary care and prudence, 68, 69. - Physician withdrawing from, 73, 74. - Not employing physician, 74, 75. - Suffering from mortal disease, 90, 91. - Submitting to dangerous operation, 91. - Communication with physician not privileged, 93. - - PAYMENT OF MEDICAL MEN—_See_ FEES. - Physician called in by stranger, 32–35. - Wife may bind husband for, 35, 36. - As between parent and child, 35–39. - — — master and servant, 40. - Paupers, 40. - Liability of railways in accidents, 40, 41. - - PECULIAR PEOPLE—38, 39. - - PERSIA— - Medical fees in, 19. - - PHARMACY, COLLEGE OF— - In Ontario, 175, 176. - - POISONS— - Should be marked, 184. - Selling illegally, 185. - - POST MORTEM— - Fees for, 27. - - PRACTISE— - Who may, 42, _et seq._ - Contracts not to, 192, 193. - - PRACTICE— - Sale of, 191, 192. - - PRIVILEGED COMMUNICATIONS— - Communications between physician and patient not, 93. - Are by statute in some States, 94, 95. - Must be lawful to be, 95. - Necessary for physician to prescribe, 95. - Report of officer of insurance company, 96. - Defamatory statements when, 136, 137. - - PROFESSIONAL EVIDENCE— - Representation by patient as to malady, 96–98. - Mem. made by physician, 98, 105. - Scientific books not admissible, 99–105. - Dying declarations when admissible, 105. - Entries against interest admissible, 105. - Rules for guidance of medical witness, 106, 107. - Exclusion of experts, 120. - - Q. - - QUACKS— - When medical men may be called, 133, 134. - When not, 132. - - R. - - RASHNESS—86. - - REGISTRATION OF MEDICAL MEN— - Before recovery of fees, 17, 18, 45. - Before practice in England and Ontario, 44, 45. - Who may be registered in England, 44. - — — — — — Ontario, 45. - Non-registered practitioners are quacks, 133. - Striking off registry for felony, 148. - - REGULAR PHYSICIAN— - An allopathic, 51. - - REPRESENTATION BY PATIENT— - As to malady, when evidence, 96–98. - - REPUTATION— - Unavailing in accidents for negligence, 71, 86. - - RESTRAINT OF TRADE— - When such contracts are allowable, 192, 193. - - RESURRECTION— - Stealing winding sheet, 152. - Taking body a misdemeanor, 154. - Assisting at, 156. - Civil liability for, 157. - Ordered in proper cases, 159. - - RELATIONS WITH PATIENTS— - No one can take advantage of a trust reposed, 138. - Practitioner must shew fairness of dealings with patients, 138. - Undue influence, when inferred, 138–140. - Gifts to medical men set aside, 139, 140. - Exorbitant charges relieved against, 140. - When patient has independent advice, 140, 141. - Contracts open and fair, 141. - Wills in favour of medical men, 141, 142. - Misrepresentations by medical men, 142. - Promises of cure, 143. - Duties in cases of small-pox, 143. - Right to limbs, 143. - Assaults on patients, 144–146. - - ROYAL COLLEGE OF PHYSICIANS. Edinburgh—11. - - ROYAL COLLEGE OF PHYSICIANS. Ireland—11. - - ROYAL COLLEGE OF PHYSICIANS. London—9. - - S. - - SALE OF PRACTISE—191, 192. - - SCHOOLS OF MEDICINE— - The law favors no school, 42, 43, 47, 51, 115. - Physician must practise according to his school, 52. - Considered in determining skill needed, 63, 64. - Experts may be of any school, 115. - - SCIENTIFIC BOOKS— - Not admissible as evidence, 99. - Rule different in Iowa and Wisconsin, 100. - Cannot be read to jury, 100–103. - Can be used to test witness, 101. - Can be read to jury in some States, 103–105. - When cannot be quoted to jury, 105. - Can be read to the court, 105. - - SCOTLAND— - Early practitioners in, 5. - - SIGN— - An evidence of professional character, 64. - Of dentists in old days, 161. - Misleading, 173. - - SKILL— - Physician must have ordinary, 57, 58. - What is ordinary, or reasonable skill, 59. - Amount required, 59–62. - — — varies, 60, 61. - Liability if skill not applied, 62. - Skill and diligence must be joined, 63. - School considered in determining, 64. - Proof of skill, 64. - Required in non-professional, 64, 65. - — — volunteer, 65. - — — gratuitous services, 65, 66. - — — dentists, 162. - - SLANDER—_See_ DEFAMATION. - - SMALL-POX— - Duties of physician in cases of, 143. - Innoculation, 147. - Exposing patients with, 147. - - SMITHS— - As practitioners, 4. - - SUPERSTITIOUS PRACTICES—2, 3, 8. - - SURGEONS— - United with barbers, 4–6. - Union dissolved, 5. - Qualification under Henry VIII, 9. - Fees, 15. - Right to amputated limbs, 143. - Attending duels, 144. - - T. - - TEETH— - Value of, 166. - Dentists pulling wrong tooth, 163. - Artificial, need not be perfect, 163, 168. - Contract for purchase of, 169. - Artificial are necessaries, 171. - - U. - - UNDUE INFLUENCE— - When exercised over patient, 138, 140. - Setting aside will for, 141, 142. - Exercised by dentist, 171. - - UNITED STATES— - As a rule any one may practise, 47. - The law sometimes interferes, 47. - Statutory requirements, 48, 51. - - UNPROFESSIONAL MEN— - Liable for gross negligence, 65. - Liability for gratuitous services, 66, 67. - When criminally liable, 92. - Admitting, at a confinement, 144. - - UNREGISTERED PHYSICIAN— - Practising for reward, 45, 46. - — — charity, 46. - - V. - - VACCINATION— - Negligence of physician, 22. - - VISITS— - Physician best judge of number, 23. - As a friend, 24. - - VOLUNTEER— - Held more strictly than one called in, 65, 66. - - W. - - WIFE— - May generally bind husband to pay doctor, 35, 36. - But husband may select physician, 36. - Cannot bind him for clairvoyant services, 36. - Selling deleterious drugs to, 186. - - WILL— - In favour of medical man, 141, 142. - - WITNESS—_See_ EXPERTS. - Fees to medical men, 26, 37. - - WOMEN PHYSICIANS— - Among the Druids, 2. - In England in early times, 2, 3, 10, 14. - Penalty for practising, 7. - In Greece and foreign lands, 13. - In United States, 14. - In England under the Medical Act, 14. - In Ontario, 14. - As liable for negligence as men, 61. - - - - -Printed for the Publishers by MOORE & CO., 20 Adelaide Street East, -Toronto. - - - - -ENDNOTES. - - -[1] The Faërie Queene, b. III., cap. 5, sts. 31, 32, 33. - -[2] 32 Henry VIII., cap. 42. - -[3] 21 & 22 Vic. cap. 90. - -[4] 3 Henry VIII. cap. 11. - -[5] _Rose_ v. _Coll. of Phy._, 3 Salk. 17: 6 Mod. 44. - -[6] 55 Geo. III. cap. 194. sec. 5. - -[7] _Apoth. Co._ v. _Lotinga_, 2 Moo. & R. 499; Glenn’s Laws Affecting -Medical Men, p. 207. - -[8] True Blue Laws of Connecticut, by J. H. Trumbull, 1876. - -[9] Prof. H. C. Bolton, _Pop. Sci. Monthly_, vol. 18 p. 191. - -[10] 3 Ortolan, Expli. des Instituts, sec. 1199, quoted in Ordronaux’s -Jurisprudence of Medicine. - -[11] _Poucher_ v. _Norman_, 3 B. & C. 744; _Chorley_ v. _Bolcot_, 4 T. -R. 317; _Veitch_ v. _Russell_, 3 Q. B. 925. - -[12] _Battersby_ v. _Lawrence_, Car. & M. 277. - -[13] Per _Bramwell, B._; _Ellis_ v. _Kelly_, 6 H. & N. 226; _Allison_ -v. _Haydon_, 3 C. & P. 246; _Apothecaries Co._ v. _Lotinga_, 2 Moo. & -R. 495: _Battersby_ v. _Lawrence_, Car. & M. 277. - -[14] _Gensham_ v. _Germain_, 11 Moore 1; _Towne_ v. _Gresley_, 3 C. & -P. 581; _Handey_ v. _Henson_, 4 C. & P. 110; _Morgan_ v. _Hallen_, 8 -Ad. & E. 489. - -[15] Stair I. 12; 5. - -[16] _Adams_ v. _Stevens_, 26 Wend. 451. - -[17] 21 & 22 Vict. cap. 90, sec. 27; _Simpson_ v. _Dismore_, 9 M. & W. -47; R. S. Ont. cap, 142, secs, 35–36. - -[18] _Hewitt_ v. _Wilcox_, 1 Met. 154. - -[19] _Adams_ v. _Stevens_, 26 Wend. 451; _Baxter_ v. _Gray_, 4 Scott, -N. R. 374; _Mock_ v. _Kelly_, 3 Ala. 387; _Beekman_ v. _Planter_, 15 -Barb. 550; _McPherson_ v. _Chedell_, 24 Wend. 15; _Simmons_ v. _Means_, -8 Sm. & Marsh, 397; _Smith_ v. _Watson_, 14 Vt. 322. - -[20] Ordronaux, sec. 39; Willcocks on the Medical Profession, p. 111. - -[21] _Tuson_ v. _Batting_, 3 Esp. N. P. 192; _Baxter_ v. _Gray_, 4 -Scott, N. R. 374. - -[22] Affaire Tallien Jour. du Palais, vol. 3; An. XI., XII. p. 210. - -[23] _Collins_ v. _Grady_, 13 Louis. An. 95; 2 Louis. 331. - -[24] _People_ v. _Monroe_, 4 Wend. 200; _Blogg_ v. _Parkers_, Ry. & M. -N. P. C. 125. - -[25] Story on Bailments, sec. 375. - -[26] _Farnsworth_ v. _Garrard_, 1 Camp. 38; _Adler_ v. _Buckley_, 1 -Swan (Tenn.) 69; _Gallagher_ v. _Thompson_, Wright (Ohio), 466. - -[27] _Basten_ v. _Butter_, 7 East, 479. - -[28] _Adler_ v. _Buckley_, 1 Swan (Tenn.), 69. - -[29] _Hill_ v. _Featherstonhaugh_, 7 Bing. 574; _Seare_ v. _Prentise_, -8 East, 350. - -[30] _Duffit_ v. _James_, cited _Baston_ v. _Butter_, 7 East, 480; -_Kannen_ v. _McMullen_, 1 Peake, 85; _Bellinger_ v. _Craigue_, 31 Barb. -534; _Long_ v. _Morrison_, 14 Ind. 595. - -[31] _Kannen_ v. _McMullen_, 1 Peake, 83; _Hupe_ v. _Phelps_, 2 -Starkie, 424. - -[32] _Piper_ v. _Menifee_, 12 B. Monr. 467. - -[33] Ordronaux p. 92. - -[34] _Landon_ v. _Humphrey_, 9 Conn. 209. - -[35] Peake’s N. P. C. 83, 84. - -[36] _Hughes_ v. _Hampton_, Const. Rep. (S. C.) 745. - -[37] _Wheeler_ v. _Sims_, 5 Jur. 151; _Newton_ v. _Ker_, 14 Louis. An. -704. - -[38] _Tuson_ v. _Batting_, 3 Esp. 191. - -[39] _Miller_ v. _Beal_, 26 Ind. 234. - -[40] _Collins_ v. _Graves_, 13 Louis. An. 95; _Villalobas_ v. _Mooney_, -2 Louis. 331. - -[41] _Todd_ v. _Myers_, 40 Cal. 357. - -[42] _Succession of Duclos_, 11 Louis. An. 406; _Sheldon_ v. _Johnson_, -40 Ia. 84; _Guerard_ v. _Jenkins_, 1 Strobh. 171; Ordronaux, sec. 47. - -[43] _Roberts_ v. _Kerfoot_, cited Glenn’s Laws, p. 201; _Stackman_ v. -_Vivian_, 34 Beav. 290. - -[44] Ordronaux, sec. 43. - -[45] _Bassett_ v. _Spofford_, 11 N. H. 167. - -[46] _Smith_ v. _Hyde_, 19 Verm. 54; _Mock_ v. _Kelly_, 3 Alab. 387; -Jones on Bailm. 99; Ordronaux, secs. 21 and 15. - -[47] _McClallen_ v. _Adams_, 19 Pick, 333; Ordronaux, sec. 48. - -[48] _Parkinson_ v. _Atkinson_, 31 L. J., C. P. 199; _Turner_ v. -_Turner_, 5 Jur., N. S., 839. - -[49] _Clark_ v. _Gill_, 1 Kay & J. 19; _Webb_ v. _Paige_, 1 Car. & Kir. -23. - -[50] _Hammond_ v. _Stewart_, 1 Stra. 510. - -[51] _In re Askin & Charteris_, 13 U. C. R. 498. - -[52] _In re Harbottle & Wilson_, 30 U. C. R. 314. - -[53] R. S. O. cap. 79, sec. 10. - -[54] Iowa Code, 1873, sec. 1814; North Carolina Laws, 1871, cap. 139, -sec. 13; Rhode Is. Pub. Stat. 1882, p. 733; Indiana Rev. Stat. 1881, p. -94, sec. 504. - -[55] _Belts_ v. _Clifford_, Warwick Assizes, Lent, 1858. - -[56] _Webb_ v. _Paige_, 1 Car. & Ker. 23. - -[57] _Buchman_ v. _State_, 59 Ind. 1. - -[58] In _Re Roelker_. 1 Sprague, 276. - -[59] _People_ v. _Montgomery_, 13 Abb. Pr. (N. S.), 207. - -[60] Juris. of Med. secs. 114–116; 1 Tay. Med. Jur. p. 19; 2 Phil. Ev. -4th Am. Ed., p. 828; 1 Redf. on Wills, pp. 154–155. - -[61] Exparte _Dement_, 53 Ala. 389. - -[62] _Summer_ v. _State_, 5 Tex. Ct. of App. 574. - -[63] Smith on Contracts, 85. - -[64] _Bradley_ v. _Dodge_, 45 How., N. Y., Pr. 57; _Craine_ v. -_Bandoine_, 65 Barb., N. Y., 261; _Harrison_ v. _Grady_, 13 L. T., N. -S., 369; _Spaun_ v. _Mercer_, 8 Neb., 537. - -[65] _Watling_ v. _Walters_, 1 C. & P. 132. - -[66] _Boyd_ v. _Sappington_, 6 Watts, 247. - -[67] _Smith_ v. _Watson_, 14 Vt. 332. - -[68] _Harrison_ v. _Grady_, 13 L. T., N. S. 369; _Cooper_ v. _Lloyd_, 6 -C. B., N. S. 519; Roper on Husband and Wife, 2nd ed. v. ii. p. 114. - -[69] _Harrison_ v. _Grady_, supra; _Thorpe_ v. _Shapleigh_, 67 Me. 235. - -[70] _Webber_ v. _Spaunpake_, 2 Redf., N. Y., 258. - -[71] _Berier_ v. _Galloway_, 71 Ill. 517; _Hartmann_ v. _Tegart_, 12 -Kan. 177. - -[72] _Potter_ v. _Virgil_, 67 Barb. N. Y., 578. - -[73] _Wood_ v. _O’Kelley_, 8 Cush. 406. - -[74] Parsons on Contracts, vol. i. p. 302–303; _Blackburn_ v. _Mackey_, -1 C. & P. 1. - -[75] _Crantz_ v. _Gill_, 2 Esp. 471. - -[76] _Rogers_ v. _Turner_, 59 Mo. 116; _Deane_ v. _Annis_, 14 Me. 26; -_Swain_ v. _Tyler_, 26 Vt. 1. - -[77] _Cooper_ v. _Phillips_, 4 C. & P. 581. - -[78] 31 & 32 Vict. cap. 122, sec. 37. - -[79] _Reg._ v. _Downes_, 1 Q. B. D. 25. - -[80] _Reg._ v. _Hines_, 80 Cen. C. C. Sess. Pap. 309; _Reg._ v. -_Wagstaffe_, 10 Cox. C. C. 530. - -[81] _Reg._ v. _Morby_, 8 Q. B. D. 571. - -[82] _Blackburn_ v. _Mackey_, 1 C. & P. 1; _Hoyt_ v. _Casey_, 14 Mass. -397. - -[83] _Wennall_ v. _Adney_, 3 B. & P. 24; _Sellen_ v. _Norman_, 4 C. & -P. 80. - -[84] _Cooper_ v. _Phillips_, 4 C. & P. 581. - -[85] _R._ v. _Smith_, 8 C. & P. 153. - -[86] Glenn’s Law of Medical Men, pp. 197–199. - -[87] _Cox_ v. _Midland Counties Railway_, 3 Ex. 268; _Cooper_ v. _N. Y. -C._ 13 N. Y. Sup. Ct. 276. - -[88] _Walker_ v. _Great Western Railway_, 2 L. R. Ex. 228; _Cairo, -etc., Railroad Company_ v. _Mahoney_, 82 Ill. 73; _Stephenson_ v. _N. -Y. & H. R. R. Co._, 2 Duer. 341. - -[89] Per Parke, B., and Rolfe, B., in _Cox_ v. _Mid. Co. Railway_, -supra. - -[90] _Corsi_ v. _Maretzck_, 4 E. D. Smith 1 (1855). - -[91] 21 & 22 Vict. cap. 90, secs. 31, 32; _Wagstaffe_ v. _Sharpe_, 3 M. -& W. 521; _Shearwood_ v. _Hay_, 5 Ad. & E. 383; _Turner_ v. _Reynall_, -14 C. B. N. S. 328. - -[92] 21 & 22 Vict. cap. 90, sec. 15. - -[93] Enc. Brit. Vol. xv. p. 799. - -[94] R. S. O. cap. 142. - -[95] _Reg._ v. _Coll. Phy. & Sur._, 44 Ont. Q. B. 564. - -[96] _Reg._ v. _Hessel_, 44 Ont. Q. B. 53 _Reg._ v. _Campbell_, Q. B. -D. (Ont.) June, 1883. - -[97] _Reg._ v. _Tefft_, 45 Ont. Q. B. 144. - -[98] _Wilmot_ v. _Shaw_, 2 C. L. Times, 96. - -[99] _Reg._ v. _Coll. P. & S._ 16 C. L. J. 30; R. S. O. cap. 142, sec. -23. - -[100] _Re Heinemann’s Appeal_, 96 Pa. St. 112. - -[101] Ordronaux’s Inst. of Med., secs. 5 and 6; _Sutton_ v. _Tracy_, 1 -Mich. 243. - -[102] N. Y. Laws, cap. 436. - -[103] _Corsi_ v. _Maretzek_, 4 E. D. Smith, 1. - -[104] _Bradbury_ v. _Bardin_, 35 Conn. 577. - -[105] _Bowman_ v. _Woods_, 1 Iowa, 441. - -[106] _Smith_ v. _Lane_, 24 Hun, 632. - -[107] _Bibber_ v. _Simpson_, 59 Me. 181; _Thistleton_ v. _Frewer_, 31 -L. J. Ex. 230. - -[108] _Patten_ v. _Wiggin_, 51 Me. 594. - -[109] _Bowman_ v. _Woods_, 1 Iowa, 441. - -[110] _Horton_ v. _Green_, 64 N. C. 64. - -[111] Ordronaux, sec. 8. - -[112] _Sutton_ v. _Tracy_, 1 Mich. 243; _Reynolds_ v. _Graves_, 3 Wisc. -416. - -[113] _Langdon_ v. _Mut. Life Ins. Co._, 5 Hun. N. Y. 1. - -[114] Per Cur., in _Dr. Greonvelt’s_ case, 1 Lord Ray, 213. - -[115] Glenn, p. 251; Addison on Torts, Ed. 3rd, p. 17. - -[116] Glenn, p. 252; Erle, C.J., _R._ v. _Noakes_, 4 F. & F. 920. - -[117] _Gardiner_ v. _Heartt_, 3 Denio, 232–236; McClelland’s Civil -Malpractice, cap. 17. - -[118] Wharton on Negligence, sec. 3. - -[119] _Carpenter_ v. _Blake_, 60 Barb. 488. - -[120] McClelland, cap. 17. - -[121] Wharton, sec. 731. - -[122] _Wilmot_ v. _Howard_, 32 Vt. 447; _Long_ v. _Morrison_, 14 Ind. -595; _Patten_ v. _Wiggin_, 51 Me. 594. - -[123] _Hancke_ v. _Hooper_, 7 C. & P. 81. - -[124] _Patten_ v. _Wiggin_, 51 Me. 594. - -[125] _Leighton_ v. _Sargent_, 7 Fost. 460; _Simonds_ v. _Henry_, 39 -Me. 155; _Hancke_ v. _Hooper_, 7 C. & P. 81; _McCandless_ v. _McWha_, -22 Pa. St. 261; _Carpenter_ v. _Blake_, 60 Barb. 488; _Utley_ v. -_Burns_, 70 Ill. 162; _Barnes_ v. _Means_, 82 Ill. 379. - -[126] _Heath_ v. _Gibson_, 3 Oregon, 64. - -[127] _Slater_ v. _Baker_, 2 Wils. 359; _McCandless_ v. _McWha_, sup.; -Wh. and Still. Medic. Juris. sec. 1087. - -[128] Bouvier’s Institutes, secs. 1004–1005. - -[129] Ordronaux’s Jurisp. of Medicine, sec. 23. - -[130] _Rich_ v. _Pierpoint_, 3 F. & F. 35. - -[131] Wharton on Negligence, sec. 734. - -[132] Ordronaux, sec. 22. - -[133] Wharton on Negligence, sec. 640. - -[134] _Small_ v. _Howard_, 128 Mass. 131; _Hathorn_ v. _Richmond_, 48 -Vt. 557. - -[135] Woodward, J., in _McCandless_ v. _McWha_, 22 Pa. Rep. 261. - -[136] _Mich. Cent. Rw._ v. _Hasseneyer_, 48 Mich. 205; _Fox_ v. -_Glastonbury_, 29 Conn. 204. - -[137] Shearman & Red., sec. 432. - -[138] _Patten_ v. _Wiggen_, 51 Me. 594. - -[139] _Rich_ v. _Pierpoint_, per Erle, C.J., 3 F. & F. 35. - -[140] _Carpenter_ v. _Blake_, 60 Barb. 488. - -[141] Ordronaux’s Jur. of Med., sec. 68. - -[142] _Potter_ v. _Warner_, 91 Pa. St. 362; 36 Am. Rep. 668. - -[143] _Bowman_ v. _Woods_, 1 Greene (Iowa), 441; _Corsi_ v. _Maretzek_, -4 E. D. Smith, 1. - -[144] _Sutton_ v. _Tracy_, 1 Mich. 243. - -[145] _Mertz_ v. _Detweiler_, 8 W. & Serg. 376; _Seare_ v. _Prentice_, -8 East, 348; _Carpenter_ v. _Blake_, 60 Barb. 518. - -[146] _Hunter_ v. _Blount_, 27 Ga. 76; _Leighton_ v. _Sargent_, 7 -Foster, N. H. 476. - -[147] Wharton on Negligence, sec. 29. - -[148] _Hood_ v. _Grimes_, 13 B. Monr. 188. - -[149] _Ruddock_ v. _Lowe_, 4 F. & F. 519; _R._ v. _Simpson_, 4 C. & P. -407, note. - -[150] Shearman & Redfield on Negligence, sec. 432; _Ritchey_ v. _West_, -3 Ill. 385; _Shiells_ v. _Blackburne_, 1 H. Bl. 159; _Wilson_ v. -_Brett_, 11 M .2 & W. 113; _Pippin_ v. _Shepherd_, 11 Price, 400. - -[151] Wharton on Negligence, sec. 731 n. - -[152] Jur. of Med. sec. 27. - -[153] _R._ v. _Macleod_, 12 Cox. C. C. 534. - -[154] _Perionowsky_ v. _Freeman_, 4 F. & F. 977. - -[155] _Shiells_ v. _Blackburne_, 1 H. Bl. 159. - -[156] _Boynton_ v. _Somersworth_, 58 N. H. 321. - -[157] McClelland, Civil Malpractice; Wharton on Negligence, sec. 737; -_Leighton_ v. _Sargent_, 7 Fost. 460; _McCandless_ v. _McWha_, 22 Pa. -St. 261. - -[158] _Geiselman_ v. _Scott_, 25 Oh. St. 86. - -[159] _Parker_ v. _Adams_, 12 Metc. 417. - -[160] _Hibbard_ v. _Thompson_, 109 Mass. 286. - -[161] _Cleveland, etc., Rw._ v. _Terry_, 8 Oh. St. 570. - -[162] _Ch. & R. I. Rw._ v. _McKean_, 40 Ill. 218; _Eakin_ v. _Brown_, 1 -E. D. Smith, 36. - -[163] _Clark_ v. _Kerwin_, 4 E. D. Smith, 21; _Parker_ v. _Adams_, 12 -Mete 417. - -[164] _Kerwhaker_ v. _Cleveland, etc., Rw._ 3 Oh. 172; _Ind. and Cin. -Rw._ v. _Caldwell_, 9 Ind. 397. - -[165] _Ch. etc., Rw._ v. _Goss_, 17 Wisc. 428. - -[166] Chapman, C.J., _Hibbard_ v. _Thompson_, 109 Mass. 288. - -[167] _Gramm_ v. _Boener_, 56 Ind. 497. - -[168] _Fisk_ v. _Wait_, 104 Mass. 71. - -[169] _People_ v. _N. Y. Hospital_, 3 Abb. N. C. 229. - -[170] _Chamberland_ v. _Morgan_, 68 Penn. St. 168. - -[171] _Wilmot_ v. _Howard_, 39 Vt. 447. - -[172] _Perionowsky_ v. _Freeman_, 4 F. & F. 977. - -[173] _Potter_ v. _Warner_, 91 Penn. St. 362. - -[174] _Slater_ v. _Baker_, 2 Wils. 359. - -[175] _Carpenter_ v. _Blake_, 60 Barb. 488. - -[176] _Hunter_ v. _Ogden_, 31 U. C. R. 132. - -[177] _Carpenter_ v. _Blake_, Sup. - -[178] _Ballon_ v. _Prescott_, 64 Me. 305. - -[179] Ordronaux, sec. 14; Shearman & Red., sec. 441. - -[180] _Longmeid_ v. _Holliday_, 6 Ex. 767. - -[181] _Pippin_ v. _Sheppard_, 11 Price, 400. - -[182] _Gladwell_ v. _Steggall_, 5 Bing. N. C. 733. - -[183] Wharton on Negligence, sec. 735. - -[184] _Craig_ v. _Chambers_, 17 Ohio St. 253. - -[185] _Fields_ v. _Rutherford_, 29 (Ont.) C. P. 113; _Metropolitan R. -W. Co._ v. _Jackson_, L. R. 3 App. 193, 197. - -[186] _Fawcett_ v. _Mothersell_, 14 C. P. (Ont.) 104; _Jackson_ v. -_Hyde_, 28 U. C. R. 295. - -[187] Ordronaux, sec. 54. - -[188] Ordronaux, sec. 86. - -[189] _Jones_ v. _Northmore_, 46 Vt. 587. - -[190] _Whalen_ v. _St. Louis, etc., Ry._, 60 Mo. 323; _Indianapolis, -etc., Ry._ v. _Gaston_, 58 Ind. 224; _Leighton_ v. _Sargent_, 11 -Foster, N. H. 120. - -[191] _Johnson_ v. _Wills_, 6 Nev. 224. - -[192] _Curtis_ v. _Rochester & S. Ry._ 20 Barb. 282. - -[193] L. R., 4 Q. B. D. 407. - -[194] L. R., 5 C. P. D. 280. - -[195] _Holmes_ v. _Halde_, 74 Me. 28. - -[196] _Jenkins_ v. _French_, 58 N. H. 532; Broom’s Maxims, 702. But see -_Hegerich_ v. _Keddie_, 32 Hun, 141; _Yertore_ v. _Wiswall_, 16 How. -Pr. 8. - -[197] Lord Campbell’s Act, 9 & 10 Vict. cap. 93; R. S. O. cap. 128; -_Lett_ v. _St. Lawrence & Ottawa Rw._, 1 Ont. Rep. 545; _Blake_ v. -_Midland Rw._, 18 Q. B. 93; _Bradburn_ v. _G. W. R._, L. R., 10 Ex. 3. - -[198] _Morse_ v. _Auburn & S. Rw._, 10 Barb. 623. - -[199] Glenn, p. 259 - -[200] _R._ v. _Long_, 4 C. & P. 398; _R._ v. _Crick_, 1 F. & F. 519. - -[201] 4 Coke Inst. 251; 4 Bla. Com. 197; 1 Hale, P. C. 429. - -[202] _Rex_ v. _Van Butchell_, 3 C. & P. 629; _Rice_ v. _The State_, 8 -Mo. 561; _Com._ v. _Thompson_, 6 Mass. 134. - -[203] _Rex_ v. _Webb_, 1 M. & Rob. 405, See also _Rex_ v. _Simpson_, 4 -C. & P. 407 n. - -[204] Bolland, B., in _Rex_ v. _Spiller_, 5 C. & P. 19; _Lamphier_ v. -_Philpot_, per Tindal, C.J, 8 C. & P. 575. - -[205] Per Coleridge, J.; _Rex_ v. _Spilling_, 2 M. & Rob. 107. - -[206] _R._ v. _Chamberlaine_, 10 Cox, C. C. 486; Blackburn, J. - -[207] _State_ v. _Shulz_, 55 Ia. 628. - -[208] _Rex_ v. _Williamson_, 3 C. & P. 635; 14 Eng. Com. Law Rep. 297. - -[209] Cap. 4, sec. 16. - -[210] _Rex_ v. _St. John Long_, 4 C. & P. 378; 19 Eng. Com. Law Rep. -404. - -[211] Wharton on Homicide, sec. 148. - -[212] _Rex_ v. _St. John Long_, 4 C. & P. 423; 19 E. C. L. R. 440. - -[213] _Rice_ v. _The State_, 8 Mo. 561. - -[214] Ordronaux, secs. 80, 77. But see _R._ v. _Nancy Simpson_, 4 C. & -P. 407 n. - -[215] _Rex_ v. _Markuss_, 4 F. & F. 356. - -[216] 38 Ark. 605. - -[217] _Com._ v. _Thompson_, 6 Mass. 134. - -[218] _Rice_ v. _State_, 8 Mo. 561. - -[219] 55 Iowa, 698. - -[220] _R._ v. _Webb_, 1 M. & R. 405; Wharton on Homicide, sec. 405. - -[221] _R._ v. _Lee_, 4 F. & F. 63; _Com._ v. _McPike_, 3 Cush. 181; -_Com._ v. _Hackett_, 2 Allen, 137; Wharton on Homicide, sec. 385. - -[222] Wharton on Homicide, sec. 554. - -[223] Wharton on Homicide, sec. 557. - -[224] Medical Jurisprudence, sec. 1059. - -[225] _Duchess of Kingston’s Case_, 20 Howell St. Tr. 573; _Wilson_ v. -_Rastall_, 4 T. R. 760; _Greenough_ v. _Gaskill_, 1 Myl. & K. 103; _R._ -v. _Gibbons_, 1 C. & P. 97; _Broad_ v. _Pitt_, 3 C. & P. 579. - -[226] _Duchess of Kingston’s Case_, supra. - -[227] Belloc. Cours de Med. leg. 17. - -[228] 1 Greenleaf on Evidence, sec. 248; _Campan_ v. _North_, 39 Mich. -606. - -[229] _Harris_ v. _Russel_, 16 Ind. 209; _Staunton_ v. _Parker_, 19 -Hun. 55; _Fraser_ v. _Jenneson_, 42 Mich. 206. - -[230] 2 N. Y. Rev. St. 406, sec. 73; _Hunn_ v. _Hunn_, 1 Thomp. & C. -499. - -[231] _Pierson_ v. _People_, 79 N. Y. 434. - -[232] _Cohen_ v. _Continental, etc., Ins. Co._, 41 N. Y. Super. Ct. -296; _Grattan_ v. _Metropolitan L. Ins. Co._, 80 N. Y. 281. - -[233] _Hewitt_ v. _Prime_, 21 Wend. 79. - -[234] _Edington_ v. _Ætna Life Ins. Co._, 77 N. Y. 564, but see -_Edington_ v. _Ætna Life Ins. Co._, 67 N. Y. 185. - -[235] _Lee_ v. _Hammerton_, 10 L. T.; N. S. 730; _Mahony_ v. _Nat. -Widow’s Life Assurance Fund_, L. R. 6 C. P. 252; _Baker_ v. _London & -S. W. Railway_, L. R. 3 Q. B. 91; _Cossey_ v. _L. B. & C._, L. R. 5 C. -P. 146; _Skinner_ v. _G. N. R._, L. R. 9 Ex. 298. - -[236] _Aveson_ v. _Lord Kinnaird_, 6 East 188; Taylor on Evidence, -secs. 580, 581, 7th ed. - -[237] _Bacon_ v. _Charlton_, 7 Cush. 586; _Chapen_ v. _Marlborough_, 9 -Gray 244; _Barber_ v. _Merriam_, 11 Allen 322. - -[238] _Kennard_ v. _Burton_, 25 Me. 39; _Gray_ v. _McLaughlin_, 26 Ia. -279; _Brown_ v. _N. Y. C._, 32 N. Y. 597; _Caldwell_ v. _Murphy_, 11 N. -Y. 344; _Barber_ v. _Merriam_, sup.; _Denlon_ v. _State_, 1 Swan 279; -_Matteson_ v. _N. Y. C._, 35 N. Y. 487. - -[239] _Chapin_ v. _Malborough_, sup.; _Lush_ v. _McDaniel_, 13 Ired. L. -485; _Rogers_ v. _Cain_, 30 Tex. 284; _Wilson_ v. _Granby_, 47 Conn. - -[240] _Witt_ v. _Witt_, 3 Sw. & Trist. 143. - -[241] _Ill. Cen. R. R._ v. _Sutton_, 42 Ill. 438. - -[242] _Rowell_ v. _Lowell_, 11 Gray 420. - -[243] _Roosa_ v. _Boston Loan Co._, 132 Mass. 439; _Quaife_ v. _C. & N. -W. R._, 48 Wis. 513. - -[244] _Denton_ v. _State_, 1 Swan 279. - -[245] Greenleaf on Evid. sec. 436; Ordronaux sec. 124; Glenn, p. 284. - -[246] _Collier_ v. _Simpson_, 5 C. & P. 73; _Reg._ v. _Thomas_, 13 Cox -Cr. Cas. 77; Redfield on Wills, p. 145; _People_ v. _Hall_, 48 Mich. -486; Rogers on Expert Evidence, sec. 180; _Brown_ v. _Sheppard_, 13 U. -C. R. 178. - -[247] _Bowman_ v. _Woods_, 1 Ia. 44; _Luning_ v. _State_, 1 Chandler -(Wisc.) 264; _Ripon_ v. _Bittel_, 30 Wisc. 362; _Stirling_ v. _Thorp_, -54 Wisc. - -[248] _Con. Mut. Life Ins. Co._ v. _Ellis_, 89 Ill. 516; Expert -Testimony, sec. 182. - -[249] _Com._ v. _Sturtevant_, 117 Mass. 123. - -[250] _Marshall_ v. _Brown_, 15 N. W. Rep. 55. - -[251] _Brown_ v. _Sheppard_, 13 U. C. R. 178. - -[252] _Pinney_ v. _Cohill_, 12 N. W. Rep. 862; _Ripon_ v. _Bittell_, 30 -Wisc. 362. - -[253] _Ashworth_ v. _Kittridge_, 12 Cush. 193. - -[254] _Reg._ v. _Crouch_, 1 Cox Cr. Cas. 94; _Washburn_ v. _Cuddihy_, -8 Gray 430; _Huffman_ v. _Click_, 77 N. C. 54; _Fraser_ v. _Jennison_, -42 Mich. 206, 214; _People_ v. _Wheeler_, 9 Pac. Coast L. J. 581; -_Robinson_ v. _N. Y. C._, 24 A. L. J. 357. - -[255] 46 Conn. 330. - -[256] _People_ v. _Wheeler_, 9 Pac. C. L. Jour. 581. - -[257] See also _Collier_ v. _Simpson_, 5 C. & P. 73; _Ordway_ v. -_Haynes_, 50 N. H. 159; _People_ v. _Anderson_, 44 Cal. 65; _Carter_ -v. _State_, 2 Cart. 617; _Gale_ v. _Rector_, 5 Bradw. 484; _Harris_ v. -_Panama R. Co._, 3 Bosw. 7. - -[258] _State_ v. _Hoyt_, 46 Conn. 330. - -[259] _Harvey_ v. _State_, 40 Ind. 516; _Wade_ v. _De Witt_, 20 Texas -398; _State_ v. _West_, 1 Houston Cr. Cas. Del. 371. - -[260] _Legg_ v. _Drake_, 1 Ohio St. 286. - -[261] Per Loomis, J., _State_ v. _Hoyt_, sup.; _Wade_ v. _De Witt_, 20 -Tex. 398, 400; _Luning_ v. _State_, sup.; Experts and Expert Testimony -by U. C. Moak, 24 A. L. J. 267. - -[262] _Yoe_ v. _State_, 49 Ill. 410. - -[263] _Russell_ on Crimes, 4th ed. vol. iii. p. 250. - -[264] _Higham_ v. _Ridgway_, 10 East 109. - -[265] Taylor’s Evid., vol. ii., sec. 1259; Alison’s Criminal Law of -Scotland, 542; Wharton’s Evid., vol. i. p. 492. - -[266] _Sizer_ v. _Burt_, 4 Denio, 426; _Anthony_ v. _Smith_, 2 Bos. -(N.Y.) 503, 508; _Fraser_ v. _Jameson_, 42 Mich. 206. 223. - -[267] 1 Smith Lead. Cas., 6th Ed. 509; _Kennedy_ v. _People_, 30 N. Y. -245. - -[268] _Chicago, etc._, v. _McGiven_, 78 Ill. 347; _Hartford Pro. Ins. -Co._ v. _Harmer_, 20 Oh. St. 457. - -[269] _Commonwealth_ v. _Rodgers_, 7 Metc. 5, per Shaw, C.J. - -[270] 1 Greenl. Evid., sec. 440; _Jones_ v. _White_, 11 Hump. 268. - -[271] Plowden, 125; Year Books, vol. v. - -[272] _Whittaker_ v. _Parker_, 42 Ia. 586; _State_ v. _Watson_, 65 Me. -74; _Rutherford_ v. _Morris_, 77 Ill. 404; _Tracy_ Peerage, 10 Cl. & -Fin. 191. - -[273] Taylor on Evidence, sec. 50, Ed. 1872. - -[274] Best on Evidence, sec. 574. - -[275] _State_ v. _Wood_, 53 N. H. 484; _Masons_ v. _Fuller_, 45 Vt. 29; -_New Orleans, etc., Rw._ v. _Allbretton_, 38 Miss. 247; _Re Toomes_, 54 -Cal. 515. - -[276] _Fairchild_ v. _Bascomb_, 35 Vt. 410; _Polk_ v. _State_, 36 Ark. -117; _Roberts_ v. _Johnson_, 58 N. Y. 613. - -[277] _Hathaway_ v. _Nat. Life Ins. Co._, 48 Vt. 335, 351; _Fairchild_ -v. _Bascomb_, supra. - -[278] _Castner_ v. _Sliker_, 33 N. J. (L.) 97; _State_ v. _Reddick_, 7 -Kan. 143; _State_ v. _Henkle_, 6 Ia. 380; _State_ v. _Cook_, 17 Kan. -391. - -[279] _Horton_ v. _Green_, 64 N. C. 64. - -[280] _Emerson_ v. _Lowell Gas Light Co._, 6 Allen, 146. - -[281] _Heald_ v. _Wing_, 5 Me. 392. - -[282] _Harris_ v. _Panama R. R. Co._, 3 Bosw. (N. Y.), 77; _Fairchild_ -v. _Bascomb_, 35 Vt. 398. - -[283] _Re Toomes_, 54 Cal. 575. - -[284] Greenleaf’s Evidence, 12th Ed., I. p. 483; _Livingstone’s case_, -14 Grat. 592. - -[285] _Lorg_ v. _First German Congregation_, 63 Pa. St. 156; _Hills_ v. -_Home Ins. Co._, 129 Mass., 544, 551. - -[286] _Lester_ v. _Pittsford_, 7 Vt. 161; _Mendum_ v. _Com._ 6 Rand. -704; _Tullis_ v. _Kidd_, 12 Ala. 648; _Sinclair_ v. _Rourk_, 14 -Ind. 540; _Winans_ v. _N. Y., etc., R. R. Co._, 21 How. (U. S.) 88; -_Boardman_ v. _Woodman_, 47 N. H. 121; _Davis_ V. _State_, 35 Ind. 496. - -[287] _Forgery_ v. _First Nat. Bank_, 66 Ind. 123, 125; _McEwen_ v. -_Bigelow_, 40 Mich. 217; _Kilborne_ v. _Jennings_, 38 Iowa, 533. - -[288] _Mitchell_ v. _State_, 58 Ala. 418; _Forgery_ v. _First Nat. -Bank_, 66 Ind. 123; _Parnell_ v. _Commonwealth_, 86 Pa. St. 269; -_Carter_ v. _Baker_, 1 Sawy. (U. S. C. C.) 525. - -[289] _Tatum_ v. _Mohr_, 21 Ark. 355; _Getchell_ v. _Hill_, 21 Minn. -464. - -[290] Ordronaux Principles, sec. 108–110. - -[291] _St. Louis Mut. Ins. Co._ v. _Graves_, 6 Bush. 290. - -[292] _Corsi_ v. _Maretzek_, 4 E. D. Smith, 1. - -[293] Wharton on Mental Unsoundness, sec. 282. - -[294] _Keith_ v. _Lothrop_, 10 Cush. 453; _Clark_ v. _State_, 12 Ohio, -483. - -[295] Rules Relating to Opinion Evidence, 26 A. L. J. 486; _State_ v. -_Smith_, 32 Me. 370; _Young_ v. _Makepeace_, 103 Mass. 50. - -[296] _State_ v. _Powell_, 7 N. J. (L.), 269; _Davis_ v. _State_, -38 Ind. 37; _Gardner_ v. _People_, 6 Parker, C. C. 202; overruling, -_Wilson_ v. _People_, 4 Park., C. C. 619; _State_ v. _Jones_, 68 N. C. -443. - -[297] _State_ v. _Smith_, Supra; _Regina_ v. _Stitt_, 30 U. C. C. P. -30; _State_ v. _Wood_, 53 N. H. 484. - -[298] _State_ v. _Bowman_, 78 N. C. 509; _State_ v. _Slagh_, 83 N. C. -630. - -[299] _Com._ v. _Sturtevant_, 117 Mass. 122. - -[300] _Newell_ v. _Doty_, 33 N. Y. 83; _Buell_ v. _N. Y. C._, 31 N. Y. -Ct. of App. 314; _Matteson_ v. _N. Y. C._ 62 Barb. 366; S. C. 35 N. Y. -487. - -[301] 11 Allen, 322. - -[302] _R._ v. _Whitehead_, 3 C. & K. 203; _Rich_ v. _Pierpont_. 3 F. & -F. 36; _Twombly_ v. _Leach_, 11 Cush. 405. - -[303] _Mertz_ v. _Detweeler_, 8 W. & S. 376; _Wright_ v. _Hardy_, 22 -Wisc. 368. - -[304] _Leighton_ v. _Sargent_, 11 Fost. N. H. 120; _Williams_ v. -_Poppleton_, 3 Oregon, 139; _Hoener_ v. _Koch_, 84 Ill. 408; _Ramadge_ -v. _Ryan_, 9 Bing. 333. - -[305] _State_ v. _Clark_, 12 Ired. 151; _Page_ v. _Barker_, 40 N. H. -477. - -[306] _Ramadge_ v. _Ryan_, 9 Bing. 335; _R._ v. _Searle_, 1 M. & Rob. -75; _Fenwick_ v. _Bell_, 1 C. & Kir. 312; _Gibson_ v. _Williams_, 4 -Wend. 320; _Morse_ v. _State_, 6 Conn. 9. - -[307] _Kennedy_ v. _People_, 39 N. Y. 245. - -[308] _New England Glass Co._ v. _Lovell_, 7 Cush. 319. - -[309] _Ramadge_ v. _Ryan_, supra; _Campbell_ v. _Richards_, 5 B. & Ad. -840. - -[310] _Reynolds_ v. _Robinson_, 64 N. Y. 595; _Shafer_ v. _Deans -ad’mor_, 29 Ia. 144. - -[311] _Linn_ v. _Sigsbee_, 67 Ill. 75; see _Bradbury_ v. _Barden_, 35 -Conn. 580. - -[312] 2 Taylor’s Evid., sec. 1259; 1 Wharton’s Evid., sec. 492. - -[313] Bost. Med. and Sur. Journ., Feb. 25. 1869. - -[314] Grier, J., in _Winans_ v. _N. Y. & E. R._ 21 How. (U. S.) 88. - -[315] Taylor’s Med. Jur. 6 Am. Ed. 53. - -[316] Vol. i. p. 103. - -[317] Redfield on Wills, vol. i. cap. 3, sec. 13. - -[318] Sec. 195. - -[319] De Divinatione, II. 58. - -[320] _Com._ v. _Rodgers_, 7 Metc. 5. - -[321] Wharton on Mental Unsoundness, sec. 293. - -[322] _Thomas_ v. _State_, 40 Texas, 65; _Parmell_ v. _Com._, 86 -Pa. St. 260; _Jarrett_ v. _Jarrett_, 11 W. Va. 627; _Flynt_ v. -_Bodenhamer_, 80 N. C. 205. - -[323] _Rex_ v. _Searle_, 1 Mood. & Rob. 75; _R._ v. _Offord_, 5 C. & -P. 168; _McAllister_ v. _State_, 17 Ala. 434; _Delafield_ v. _Parish_, -25 N. Y. 9; _Com._ v. _Rodgers_, 7 Metc. 5; _Clark_ v. _State_, 12 Oh. -483; _Davis_ v. _State_, 35 Ind. 496. - -[324] _Puryear_ v. _Reese_, 46 Tenn. 21; _White_ v. _Bailey_, 10 Mich. -155; _Dickenson_ v. _Barber_, 9 Mass. 225. - -[325] _People_ v. _McGann_, 3 Parker Cr. Cas. 272, 298. - -[326] _White_ v. _Bailey_, 10 Mich. 155; _Fairfield_ v. _Bascomb_, 35 -Vt. 398. - -[327] _R._ v. _Richards_, 1 F. & F. 87. - -[328] _Lovatt_ v. _Tribe_, 3 F. & F. 9. - -[329] _R._ v. _Higginson_, 1 Car. & R. 129; _R._ v. _Searle_, 1 Mood. & -Rob. 75; _Malton_ v. _Nesbit_, 1 C. & P. 72; _R._ v. _Wright_, Russ. & -Ry. 456; see also, _Tingley_ v. _Congill_, 48 Mo. 297. - -[330] _R._ v. _Frances_, 4 Cox C. C. 57; _R._ v. _Searle_, sup. - -[331] _Page_ v. _State_, 61 Ala. 18; _Davis_ v. _State_, 38 Md. 41. - -[332] _Fairchild_ v. _Bascomb_, 35 Vt. 398; _State_ v. _Windsor_, 5 -Harring. 512; _U. S._ v. _McGlue_, 1 Curtis C. C. 1; _McAlister_ v. -_State_, 17 Ala. 434; _Woodbury_ v. _Obear_, 7 Gray, 467; _Hunt_ v. -_Lowell Gas Light Company_, 8 Allan, 169. - -[333] 10 Clark & Fin. 200. - -[334] _Com._ v. _Rodgers_, 7 Metc. 5. - -[335] _U. S._ v. _McGlue_, 1 Cur. C. C. 1. - -[336] _Burton_ v. _Scott_, 3 Rand. 399; 27 A. L. J. 148. - -[337] _Com._ v. _Rich_, 14 Gray, 335; _Hastings_ v. _Rider_, 99 Mass. -625; _Russell_ v. _State_, 53 Miss. 36. - -[338] _Heald_ v. _Wing_, 5 Me. 392; _Whetherbee_ v. _Whetherbee_, 38 -Vt. 454. - -[339] 27 Alb. L. J. 126. - -[340] Glenn’s Laws of Med. Men, p. 212. - -[341] _Cawdry_ v. _Highley_, Cro. Car. 270; Godb. 441. - -[342] _Bill_ v. _Neal_, 1 Sev. 52. - -[343] _Flower’s_ Case, Cro. Car. 211; _Wharton_ v. _Brook_, Vent. 21. - -[344] _Southee_ v. _Denny_, 1 Ex. 196. - -[345] _Bergold_ v. _Puckta_, 2 Thomp. & C. N. Y. 532. - -[346] _Johnson_ v. _Robertson_, 8 Port. R. 586; _Poe_ v. _Mondford_, -Cro. Eliz. 620; _Tutty_ v. _Alewin_, 11 Mod. 221; _Secord_ v. _Harris_, -18 Barb. 425; see, also, _Watson_ v. _Vanderlash_, Het. 69. - -[347] _Davis_ v. _Ockham_, Sty. 235; _Edsall_ v. _Russell_, 4 M. & G. -1090. - -[348] _Southee_ v. _Denny_, 1 Ex. 196; _Ramadge_ v. _Ryan_, 9 Bing. 333. - -[349] _Long_ v. _Chubb_, 5 C. & P. 55; _Allen_ v. _Eaton_, 1 Roll. Abr. -54; _Goddart_ v. _Haselfoot_, 1 Viner’s Abr. (S. A.) pl. 12; _White_ v. -_Carroll_, 42 N. Y. 161. - -[350] _Ayre_ v. _Craven_, 2 Ad. & E. 2. - -[351] _Clarke_ v. _Freeman_, 11 Beav. 112; _Ramadge_ v. _Wakley_, cited -9 Bing. 333. - -[352] Odgers on Libel and Slander, p. 50. - -[353] _Hunter_ v. _Sharpe_, 4 F. & F. 983; and see _Morrison_ v. -_Harmer_, 4 Scott, 524. - -[354] _Macleod_ v. _Wakley_, 3 C. & P. 311. - -[355] _Sugoe’s_ Case, Hetl. 175; _Edsall_ v. _Russell_, 4 M. & G. 1090. - -[356] _Rodgers_ v. _Cline_, 56 Miss. 808; _Camp_ v. _Martin_, 23 Conn. -86; _Jones_ v. _Diver_, 22 Ind. 184. - -[357] _Collins_ v. _Carnegie_, 1 A. & E. 695. - -[358] _Skirving_ v. _Ross_, 31 C. P. (Ont.) 423. - -[359] _Ayre_ v. _Craven_, 2 A. & E. 2; _Dixon_ v. _Smith_, 5 H. & N. -450. - -[360] Anon. 1 Ham. 83; _Foster_ v. _Small_, 3 Whart. 138. - -[361] _Clay_ v. _Roberts_, 9 Jur. (N. S.) 580. - -[362] Odgers on Slander, p. 69; _Rutherford_ v. _Evans_, 4 C. & P. 79; -_Collins_ v. _Carnegie_, 1 Ad. & E. 697; _Moises_ v. _Thornton_, 3 Esp. -4; _Wakley_ v. _Healey_, 4 Ex. 53. - -[363] _Van Tassel_ v. _Capson_, 1 Denio. 250; _Kinney_ v. _Nash_, 3 -Comst. 177; _Ayre_ v. _Craven_, sup. - -[364] Glenn’s Laws of Med. Men, 230; _Harrison_ v. _Bush_, 5 El. & B. -344. - -[365] Per Pigot, C.B., in _Bell_ v. _Parke_, 10 Ir. C. L. Rep., N. S., -288. - -[366] _Humphreys_ v. _Stilwell_, 2 F. & F. 590; _Murphey_ v. _Kellett_, -13 Ir. C. L. Rep. N. S. 688. - -[367] _Alpen_ v. _Morton_, 21 Oh. St. 536. - -[368] _Clarke_ v. _Hawke_, 9 Grant, 52; _Denison_ v. _Denison_, 13 Gr. -596; _Hoghton_ v. _Hoghton_, 15 Beav. 299; _Haguenin_ v. _Baseley_, 14 -Ves. 300; Story, I Eq. Jur. sec. 314. But see _Andeureid’s_ Appeal, 89 -Pa. St. 114; _McEwan_ v. _Milne_, 5 Ont. R. 100. - -[369] Law Rep. 1 Ch. 252. - -[370] _Hoghton_ v. _Hoghton_, sup.; _Dent_ v. _Bennett_, 4 Myl. & C. -276; _Cadwallader_ v. _West_, 48 Mo. 483. - -[371] _Clarke_ v. _Hawke_, sup.; _Dent_ v. _Bennett_, sup. - -[372] _Dent_ v. _Bennett_, sup.; _Gibson_ v. _Russell_, 2 Y. & Coll. C. -C. 104; _Popham_ v. _Brooke_, 5 Russ. 104. - -[373] _Cadwallader_ v. _West_, 48 Mo. 483. - -[374] _Allan_ v. _Davis_, 4 De G. & Sim. 133. - -[375] _Billage_ v. _Southbee_, 9 Hare, 534, 540. - -[376] _Peacock_ v. _Kesnot_, 8 L. T. 292; _Wright_ v. _Proud_, 13 Ves. -136. - -[377] _Pratt_ v. _Barker_, 1 Sim. 1. - -[378] _Mitchell_ v. _Homfray_, 8 Q. B. D. 587. - -[379] _Aheare_ v. _Hogan_, Dru. 322. - -[380] _Doggett_ v. _Lane_, 12 Mo. 215. - -[381] _Middleton_ v. _Sherbourne_, 4 Y. & Coll. 358. - -[382] _Jones_ v. _Godrich_, 5 Moo. P. C. 16. - -[383] _Farlar_ v. _Lane_, 29 L. T. 2; _Jones_ v. _Godrich_, 5 Moo. P. -C. 16; _Reece_ v. _Pressey_, 2 Jur. N. S. 380. - -[384] _Greville_ v. _Lylee_, 7 Moo. P. C. 320; _Durnell_ v. _Corfield_, -3 L. T. 323; 1 Robarts, 51; _Major_ v. _Knight_, 4 N. C. 661. - -[385] _Ashwell_ v. _Lomi_, L. R. 2 P. & D., 477. See also _Crispell_ v. -_Dubois_, 4 Barb. 393. - -[386] _Hides_ v. _Hides_, 65 How. Pr. Rep. 17; _Middleton_ v. -_Sherburne_, 4 Y. & Coll. 358. - -[387] _Brown_ v. _State_, 9 Baxter, 45. - -[388] _Seavey_ v. _Preble_, 64 Me. 120. - -[389] 3 Co. Inst. 203; 20 A. L. J. 320. - -[390] _Reg._ v. _Cuddy_, 1 C. & K. 210; _Reg._ v. _Coney_, L. R. 8 Q. -B. D. p. 569. - -[391] _R._ v. _Case_, 19 L. J. M. C. 174; _R._ v. _Stanton_, 1 Car. & -Kir. 415. - -[392] _Rex_ v. _Rosinski_, 1 Moo. C. C. 19. - -[393] _De May_ v. _Roberts_, 46 Mich. 160; 41 Am. Rep. 154. - -[394] _Pennell_ v. _Cummings_, 75 Me. - -[395] _Fletcher_ v. _Fletcher_, 1 E. & E. 420; _Anderson_ v. _Burrows_, -4 C. & P. 210. - -[396] _Hall_ v. _Semple_, 3 F. & F. 337. - -[397] _Scott_ v. _Wakem_, 3 F. & F. 333. - -[398] R. S. O. cap. 220, secs. 8, 9; 16 & 17 Vict. cap. 96, secs. 4 & -5; (Imp. Stat.). - -[399] _Reg._ v. _West_, 2 C. & K. 784. - -[400] _R._ v. _West_, 2 C. & K. 784; _Mitchell_ v. _Connor_, 78 Ky. -204; Russell on Crimes, vol. i, pp. 670, 740; _State_ v. _Dickinson_, -41 Wis. 299. - -[401] Imp. Stat. 24 & 25 Vict. cap. 100, secs. 58, 59; Can. Stat. 32 & -33 Vict. cap. 20, secs. 59, 60. - -[402] _State_ v. _Slagle_, 83 N. C. 630; _State_ v. _Fitzgerald_, 49 -Ia. 260. - -[403] _State_ v. _Gedicke_, 43 N. J. L. 86; _Reg._ v. _Fraser_, 9 Cox -C. C. 228; _Reg._ v. _Hannah_, 13 Cox, C. C. 54. - -[404] _Bradford_ v. _People_, 20 Hun. (N. Y.) 309. - -[405] _Rex._ v. _Burnett_, 4 M. & S. 272; _Rex._ v. _Sutton_, 4 Burr. -2116; _Rex._ v. _Vantandillo_, 4 M. & S. 73. - -[406] 3 & 4 Vict. cap. 29, sec. 8; 30 & 31 Vict. cap. 84, sec. 32. - -[407] 16 Vict. cap. 170, sec. 1. - -[408] _Carson_ v. _State_, Ala. Sup. Ct. Dec. 1881; 25 A. L. J. 366; -_State_ v. _Kansas_, 29 Kans. 384; and see post Druggists. - -[409] R. S. Ont. cap. 142, sec. 34; _Reg._ v. _Coll. of P. & S._, 44 -Ont. Q. B. 146. - -[410] _Boynton_ v. _Somersworth_, 58 N. H. 321. - -[411] _Hitchcock_ v. _Burgett_, 38 Mich. 501. - -[412] 32 Hy. VIII., cap. 42. - -[413] 2 & 3 Wm. IV., cap. 75. - -[414] 32 & 33 Vict., cap. 29, sec. 100. - -[415] 1 Jac. I., cap. 12. - -[416] 1 Russ. on Crimes, 465. - -[417] 3 Inst. 110; 12 Co. 113 a. - -[418] 2 East P. C. 652. - -[419] _Williams_ v. _Williams_, L. R., 20 Ch. D. 659; _Reg._ v. -_Sharpe_, Dea. and Bell, C. C. 160. - -[420] Am. Law T., July, 1871. - -[421] _Guthrie_ v. _Weaver_, 1 Mo. App. 136; 4 Brady, 502; _Wynkoop_ v. -_Wynkoop_, 6 Wright, 293. - -[422] _Bogert_ v. _Indianapolis_, 13 Ind. 138. - -[423] Willcock, cap. 10. - -[424] 2 East P. Cr. 652; _R._ v. _Gilles_, Russ. & Ry. 366, n.; _R._ -v. _Lynn_, 2 T. R. 733; _Reg._ v. _Sharpe_, 1 D. & B. 160; _Reg._ v. -_Price_, L. R. 12 Q. B. D. 247. - -[425] _Tate_ v. _State_, 6 Black. (Ind.) 111; _Com._ v. _Loring_, -8 Pick. (Mass.) 370; _Com._ v. _Marshall_, 11 Pick. 350; _Com._ v. -_Cooley_, 10 Pick. 37. - -[426] 2 R. S. 688, sec. 13. - -[427] 23 Albany L. J. 421. - -[428] R. S. O. cap. 143. - -[429] _Tate_ v. _State_, 6 Black. 111. - -[430] 2 Com. 429. - -[431] _Meagher_ v. _Driscoll_, 99 Mass. 281; _Barnstable_ v. -_Thatcher_, 3 Metc. 243; _Bracegirdle_ v. _Orford_, 2 M. & S. 77; -_Brewer_ v. _Dero_, 11 M. & W. 625. - -[432] _Granger’s Ins. Co._ v. _Brown_, 57 Miss. 308. - -[433] 32 Henry VIII. cap. 42. - -[434] R. S. O. cap. 144. - -[435] _Simonds_ v. _Henry_, 39 Me. 153. - -[436] Glenn’s Laws, p. 251. - -[437] McClelland’s Civil Malpractice, p. 19. - -[438] _Eakin_ v. _Brown_, 1 E. D. Smith, 36. - -[439] _Clarke_ v. _Kerwin_, 4 E. D. Smith, 21: _Parker_ v. _Adams_, 12 -Metc. 417. - -[440] _Keily_ v. _Cotton_, 26 Alb. L. J. 483. - -[441] _Boyle_ v. _Winslow_, 5 Phil. (Pa.) 136. - -[442] Russell on Crimes, vol. I. p. 720. - -[443] Taswell-Langmead, English Constit. History, p. 41. - -[444] _Street_ v. _Blackburn_, 1 H. Bl. 159; _Wilson_ v. _Brett_, 11 M. -& W. 113. - -[445] _Hancke_ v. _Hooper_, 7 C. & P. 81. - -[446] Glenn’s Laws, p. 209. - -[447] Peake’s N. P. C. 83, 84. - -[448] _Piper_ v. _Menifee_, 12 B. Monr. 465. - -[449] _Simonds_ v. _Henry_, 39 Me. 155. - -[450] _Slater_ v. _Balter_, 2 Wils. 359, 362. - -[451] _Lee_ v. _Griffin_, 1 E. B. & S. 272. - -[452] _Maxon_ v. _Perrott_, 17 Mich. 332. - -[453] _Whitcomb_ v. _Reid_, 31 Miss. 567. - -[454] _Gilman_ v. _Andrews_, 28 Vt. 24. - -[455] _Allen_ v. _Davis_, 4 DeG. & S. 133. - -[456] 4 My. & C. 269. - -[457] _Colton_ v. _Thomas_, 2 Brews. 308. - -[458] _Morgan_ v. _Schuyler_, 79 N. Y. 490; S. C. 35 Am. Rep. 543. - -[459] _State_ v. _Holmes_, 28 La. Ann. 765. - -[460] _Mills_ v. _Perkins_, 120 Mass. 41. - -[461] _Klock_ v. _Burger_, 50 Md. 575. - -[462] _Haniline_ v. _Commonwealth_, 13 Bush. 350. - -[463] R. S. O. cap. 145. - -[464] Code of Med. Pol. 332, 333. - -[465] 55 Geo. III., cap. 194, sec, 5. - -[466] 13 B. Monr. 219. - -[467] _Jones_ v. _George_, 13 Rep. 738; Tex. Sup. Ct. (1882). - -[468] Chitty on Contracts, p. 393. - -[469] _Howe_ v. _Young_, 16 Ind. 312; 2 Hilliard on Torts, p. 297, sec. -A. - -[470] _Brown_ v. _Marshall_, 47 Mich. 576. - -[471] _VanBracken_ v. _Fondar_, 12 John. 468; _Jones_ v. _Murray_, 3 -Monr. 85; _Marshall_ v. _Peck_, 1 Dana. 609. - -[472] Ordronaux, secs. 183–184. - -[473] 2 Selden, 397, (N. Y.) - -[474] 2 R. S. sec. 662, 319. - -[475] 2 Car. & Kir. 368. - -[476] _Hansford_ v. _Payne_, 11 Bush. 380. - -[477] _Norton_ v. _Sewall_, 106 Mass. 143. - -[478] _Ibid._ - -[479] _George_ v. _Skivington_, L. R. 5 Exch. 1. - -[480] _Davidson_ v. _Nicholls_, 11 Allen, 514. - -[481] _R._ v. _Noakes_, 4 F. & F. 920. - -[482] 1 Lewin C. C. 169. - -[483] 4 F. & F. 525. - -[484] _Wohlfarht_ v. _Beckert_, 27 Hun, 74: 92 N.Y. 490. - -[485] R. S. O., c. 145, sec. 27. - -[486] Sections, 28–31. - -[487] _Ray_ v. _Burbank_, 6 Ga. 505. - -[488] 56 Geo. III. cap. 58, sec. 3; 31 & 32 Vict. cap. 121, sec. 24; 23 -& 24 Vict. cap. 84, sec. 30. - -[489] _Hoard_ v. _Peck_, 56 Barb. 202. - -[490] _Common._ v. _Ramsdell_, 130 Mass. 68. - -[491] _State_ v. _Laffer_, 38 Iowa, 422; _Common._ v. _Ramsdell_, -supra; _Common._ v. _Hallett_, 103 Mass. 452; _Common._ v. -_Butterrick_, 6 Cush. 247. - -[492] _Nixon_ v. _State_, 76 Ind. 524; _State_ v. _Wray_, 72 N. C. 253; -_Woods_ v. _State_, 36 Ark. 36; S. c. 38 Am. Rep. 22. - -[493] _State_ v. _Knowles_, 57 Iowa, 669. - -[494] _Boone_ v. _State_, 10 Tex. Ct. App. 418. - -[495] See Glenn’s Laws, cap. viii. - -[496] _Jauncey_ v. _Knowles_, 29 L. J. Cha. 95. - -[497] _Mackenna_ v. _Parkes_, 36 L. J. Cha. 366. - -[498] _Turner_ v. _Reynall_, 14 C. B. N. S. 328. See, also, _Reg._ v. -_Tefft_, 45 Ont. Q. B. 144. - -[499] _Anon._, cited 2 K. & J. 446. - -[500] _Farr_ v. _Pearce_, 3 Mad. 74; _Austen_ v. _Boys_, 24 Beav. 598; -2 DeG. & J. 626. - -[501] _McIntyre_ v. _Belcher_, 10 Jur. N. S. 239. - -[502] _Christie_ v. _Glark_, 16 (Ont.) C. P. 544; 27 Q. B. 21. - -[503] _May_ v. _Thomson_, L. R. 20 Ch. D. 718. - -[504] _Dingnan_ v. _Walker_, 33 L. T. 256. - -[505] _Davis_ v. _Mason_, 5 T. R. 118; _Carnes_ v. _Nesbitt_, 7 H. & N. -778; _Sainter_ v. _Ferguson_ 7 C. B. 716; _Hastings_ v. _Whitley_, 2 -Ex. 611; _Haynard_ v. _Young_, 2 Chit. 407; _McClurg’s Appeal_, 58 P. -St. 51; Parsons on Contracts, vol. ii. p. 748. - -[506] _Mallan_ v. _May_, 11 M. & W. 653. - -[507] _Horner_ v. _Graves_, 7 Bing. 735. - -[508] _Mallan_ v. _May_, supra. Generally on this subject, see Glenn’s -Laws, cap. viii. - -[509] Glenn’s Laws, cap. viii. - -[510] _Nickson_ v. _Brohan_, 10 Mod. 109. - -[511] _Hancke_ v. _Hooper_, 7 C. & P. 81. - -[512] _R._ v. _Bennett_, 29 L. J.; M. C. 27; _R._ v. _Tessymond_, 1 -Lewin C. C. 169. - -[513] _Wise_ v. _Wilson_, 1 C. & K. 662. - -[514] _Abernethy_ v. _Hutchinson_, 3 L. J, 209; _Nicols_ v. _Pitman_, -L. R. 26 Ch. D. 374. - - - - -TRANSCRIBER’S NOTE - - -Original printed spelling and grammar are retained, with a few -exceptions noted below. The corrections suggested in the CORRIGENDA -have been applied. Small caps are changed to all capital letters. -Italics _look like this_. Original printed page numbers look like this: -“|81|”. Footnotes were changed to endnotes, and renumbered 1–514. One -common printer’s error has been corrected silently; fairly often a -short word such as “a” was printed twice on successive lines. Thus, for -example, a sentence on page 99 originally read “And a a very recent -writer says . . . .” - -In the index, ditto marks and white space were used in combination to -indicate words repeated from line to line. In this edition, em dashes -are used instead. Thus the line beginning “Provision made for study -of, in England”, was printed with two ditto marks and white space -sufficient to indicate the first five words repeated; herein rendered -“— — — — — in Canada”. - -Page v. “Practioners” changed to “Practitioners”. - -Page viii. “Connnecticut” to “Connecticut”. - -Page 12. “distingushed” to “distinguished”. - -Page 26. “carlessness” to “carelessness”. - -Page 36. “chairvoyant” to “clairvoyant”. - -Page 58. The quotation beginning in the last paragraph has no closing -mark. - -Page 74. Closing quotation mark added after “for a misfeasance”. - -Page 66. “exibibit” to “exhibit”. - -Page 80. “probablity” to “probability”. - -Page 84. “adminster” to “administer”. - -Page 101. The quotation beginning ‘Again, “where books are thus -offered’ has no closing quotation mark. - -Page 104 note. Unmatched left curly bracket removed from “1 Houston Cr. -Cas. (Del. 371”. - -Page 106. “Uuited” to “United”. Also, “or there probable effect” is -retained because it is in a quotation. - -Page 115. Closing double quotation mark added after ‘are wholly -inadmissible as evidence.’ - -Page 121. This partial sentence: ‘gives the following, “In a case of -alleged child murder a medical witness, being asked for a plain opinion -of the cause of death, said, that it was owing to “atelectasis and a -general engorgement of the pulmonary tissue.”’ was changed to ‘gives -the following, “In a case of alleged child murder a medical witness, -being asked for a plain opinion of the cause of death, said, that it -was owing to ‘atelectasis and a general engorgement of the pulmonary -tissue’.”’ - -Page 126. Closing quotation mark was added to the end of the paragraph -containing the following opening mark: ‘judges replied, “We think’. - -Page 128. “Massachussetts” to “Massachusetts”. - -Page 130. “physican” to “physician”. - -Page 134 note. “(N. S.) 580)” retained despite evident error. - -Page 155. Full stop removed from “chiefly murderers.;”. - -Page 172. “particnlar” to “particular”. - -Page 177. Closing quotation mark added to the end of the paragraph -containing the following opening mark: ‘Court refused it saying, -“Purchasers have to trust’. - -Page 181. “manslaugher” to “manslaughter”. - -Page 184 note. The rightmost right parenthesis was removed from “_Clay_ -v. _Roberts_, 9 Jur. (N. S.) 580)”. - -Page 191 note. “_Christie_ v. _Glark_” is retained; but there is no -mention of this case in the TABLE OF CASES CITED beginning on page vii. - -Page 209, Index, Heading “Parent and Child”. “Liablility” to -“Liability”. - - - - - - - - -End of Project Gutenberg's The Law and Medical Men, by Robert Vashon Rogers - -*** END OF THIS PROJECT GUTENBERG EBOOK THE LAW AND MEDICAL MEN *** - -***** This file should be named 51293-0.txt or 51293-0.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/5/1/2/9/51293/ - -Produced by Bryan Ness, RichardW, and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive/Canadian Libraries) - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. 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You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: The Law and Medical Men - -Author: Robert Vashon Rogers - -Release Date: February 24, 2016 [EBook #51293] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE LAW AND MEDICAL MEN *** - - - - -Produced by Bryan Ness, RichardW, and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive/Canadian Libraries) - - - - - - -</pre> - - -<div class="imctr01" id="coverpage"> -<img src="images/cover.jpg" width="545" height="800" alt="" /> -</div> - -<div class="front"> -<div class="signature">to <a href="#transnote">transcriber's note</a><br /> -to <a href="#toc">table of contents</a></div></div> - -<div class="front"> -<h1 class="nobreak" title="The Law and Medical Men."> -<span class="h1a">THE</span> -<span class="h1b">L A W</span> -<span class="h1a">AND</span> -<span class="h1c">MEDICAL  MEN.</span></h1> - -<hr class="hr28" /> - -<div class="fsize7">BY</div> -<div class="fsize5">R.  VASHON  ROGERS,  <span class="smcap">J<span>r.,</span></span></div> -<div class="fsize7"><i>Of Osgoode Hall, Barrister-at-Law</i>.</div> - -<hr class="hr28" /> - -<div class="fsize6 padtopa">TORONTO, CANADA,</div> -<div class="fsize7">AND</div> -<div class="fsize6">EDINBURGH, SCOTLAND:</div> - -<div class="fsize6">CARSWELL & CO., LAW BOOK PUBLISHERS.</div> -<div class="fsize6">1884.</div> -</div> - -<div class="chapter"> -<h2 class="nobreak" id="p-iii" title="Preface.">PREFACE.</h2> - -<p class="first">The -idea that in the library of nearly every practitioner -in the professions of both Physic and Law there has -been for some time a small gap among the books, which -could be filled by a little work like this now submitted, has -induced the author to prepare and publish the following -pages.</p> -</div> - -<p>While it is hoped that this little work will prove of use -to the members of the Legal and Medical Professions, it is -intended to be suggestive rather than exhaustive—a primer -not an encyclopædia; and it is not expected that it will -obviate the necessity for frequent conferences between -physicians and lawyers whenever, in the practice of either, -questions arise requiring the experience of the other.</p> - -<p>In most cases the very words of the judges and reporters -have been used, and if any expressions are noticed that -may be deemed over strong it will be found that they are -the words of others: the author’s aim has been rather to -act as an humble compiler and citer of cases, than to -obtrude opinions or theories of his own.</p> - -<p>Brief chapters on Dentists and Druggists have been given -because of the intimate connection between these gentlemen -and the members of the medical profession.</p> - -<p>With great diffidence this book is committed to the tender -mercies of the critics of these two learned professions—to -those who can so effectually wield the pen, the tongue and -the scalpel.</p> - -<p class="signature">R. V. B., <span class="smcap">J<span>r.</span></span></p> - -<p>Kingston, Ont., November, 1884.</p> - -<div class="chapter" id="p-v"> -<h2 class="nobreak" id="toc" title="Contents.">CONTENTS.</h2> -<hr class="hr18" /> -<div class="tocgroup"><div class="tocpn"><a href="#p-iii">iii</a></div> -<div class="tocdesc"><span class="smcap">P<span>REFACE</span></span></div> -</div> - -<div class="tocgroup"><div class="tocpn"><a href="#p-vii">vii–xiii</a></div> -<div class="tocdesc"><span class="smcap">T<span>ABLE</span></span> - <span class="smmaj">OF</span> - <span class="smcap">C<span>ASES</span></span> - <span class="smcap">C<span>ITED</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER I.</div> - -<div class="tocpn"><a href="#p001">1–14</a></div> -<div class="tocdesc"><span class="smcap">E<span>ARLY</span></span> -<span class="smcap">P<span>RACTITIONERS</span></span> -<span class="smmaj">AND</span> <span class="smcap">L<span>AWS</span></span></div> -</div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER II.</div> - -<div class="tocpn"><a href="#p015">15–31</a></div> -<div class="tocdesc"><span class="smcap">F<span>EES</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER III.</div> - -<div class="tocpn"><a href="#p032">32–41</a></div> -<div class="tocdesc"><span class="smcap">W<span>HO</span></span> -<span class="smcap">S<span>HOULD</span></span> -<span class="smcap">P<span>AY</span></span> -<span class="smmaj">THE</span> -<span class="smcap">D<span>OCTOR</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER IV.</div> - -<div class="tocpn"><a href="#p042">42–54</a></div> -<div class="tocdesc"><span class="smcap">W<span>HO</span></span> -<span class="smcap">M<span>AY</span></span> -<span class="smcap">P<span>RACTISE</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER V.</div> - -<div class="tocpn"><a href="#p055">55–81</a></div> -<div class="tocdesc"><span class="smcap">N<span>EGLIGENCE</span></span> -<span class="smmaj">AND</span> - <span class="smcap">M<span>ALPRACTICE</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER VI.</div> - -<div class="tocpn"><a href="#p082">82–92</a></div> -<div class="tocdesc"><span class="smcap">C<span>RIMINAL</span></span> -<span class="smcap">M<span>ALPRACTICE</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER VII.</div> - -<div class="tocpn"><a href="#p093">93–107</a></div> -<div class="tocdesc"><span class="smcap">P<span>ROFESSIONAL</span></span> -<span class="smcap">E<span>VIDENCE</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER VIII.</div> - -<div class="tocpn"><a href="#p108">108–120</a></div> -<div class="tocdesc"><span class="smcap">M<span>EDICAL</span></span> -<span class="smcap">E<span>XPERTS</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER IX.</div> - -<div class="tocpn"><a href="#p121">121–128</a></div> -<div class="tocdesc"><span class="smcap">E<span>XPERTS</span></span> -<span class="smmaj">IN</span> <span class="smcap">I<span>NSANITY</span></span> -<span class="smcap">C<span>ASES</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER X.</div> - -<div class="tocpn"><a href="#p129">129–137</a></div> -<div class="tocdesc"><span - class="smcap">D<span>EFAMATION</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER XI.</div> - -<div class="tocpn"><a href="#p138">138–148</a></div> -<div class="tocdesc"><span class="smcap">R<span>ELATIONS</span></span> -<span class="smmaj">WITH</span> - <span class="smcap">P<span>ATIENTS</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER XII.</div> - -<div class="tocpn"><a href="#p149">149–159</a></div> -<div class="tocdesc"><span class="smcap">D<span>ISSECTION</span></span> -<span class="smmaj">AND</span> - <span class="smcap">R<span>ESURRECTION</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER XIII.</div> - -<div class="tocpn"><a href="#p160">160–173</a></div> -<div class="tocdesc"><span class="smcap">D<span>ENTISTS</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER XIV.</div> - -<div class="tocpn"><a href="#p174">174–188</a></div> -<div class="tocdesc"><span class="smcap">D<span>RUGGISTS</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /> -CHAPTER XV.</div> - -<div class="tocpn"><a href="#p189">189–195</a></div> -<div class="tocdesc"><span class="smcap">P<span>ARTNERS,</span></span> -<span class="smcap">G<span>OODWILL,</span></span> -<span class="smcap">A<span>SSISTANTS</span></span></div></div> - -<div class="tocgroup"><div class="tocchap"><hr class="hr18" /></div> -<div class="tocpn"><a href="#p197">197–214</a></div> -<div class="tocdesc"><span class="smcap">I<span>NDEX</span></span></div></div> -<hr class="hr28" /> -</div> - -<div class="chapter"> -<h2 class="nobreak" id="p-vii" - title="Table of Cases Cited.">TABLE OF CASES CITED.</h2> - -<p class="pcenter">A.</p> - -<p class="pcases">Abernethy v. Hutchinson, <a href="#p195">195</a></p> - -<p class="pcases">Adams v. Stevens, <a href="#p017">17</a>, <a href="#p018">18</a></p> - -<p class="pcases">Adler v. Buckley, <a href="#p020">20</a>, <a href="#p021">21</a></p> - -<p class="pcases">Ahearne v. Hogan, <a href="#p141">141</a></p> - -<p class="pcases">Allen v. Davis, <a href="#p140">140</a>, <a href="#p172">172</a></p> - -<p class="pcases">  ″  v. Eaton, <a href="#p132">132</a></p> - -<p class="pcases">Allison v. Hayden, <a href="#p016">16</a></p> - -<p class="pcases">Alpen v. Morton, <a href="#p137">137</a></p> - -<p class="pcases">Anderson v. Burrows, <a href="#p146">146</a></p> - -<p class="pcases">Andeureid’s Appeal, <a href="#p138">138</a></p> - -<p class="pcases">Anon, <a href="#p134">134</a>, <a href="#p190">190</a></p> - -<p class="pcases">Anthony v. Smith, <a href="#p106">106</a></p> - -<p class="pcases">Apothecaries Company v. Lotinga, <a href="#p012">12</a>, <a href="#p016">16</a></p> - -<p class="pcases">Ashworth v. Kittridge, <a href="#p102">102</a></p> - -<p class="pcases">Askin & Charteris, <i>re</i>, <a href="#p027">27</a></p> - -<p class="pcases">Aswell v. Lomi, <a href="#p142">142</a></p> - -<p class="pcases">Austen v. Boys, <a href="#p191">191</a></p> - -<p class="pcases">Aveson v. Lord Kinnaird, <a href="#p096">96</a></p> - -<p class="pcases">Ayre v. Craven, <a href="#p132">132</a>, <a href="#p134">134</a>, <a href="#p135">135</a>.</p> - -<p class="pcenter">B.</p> - -<p class="pcases">Bacon v. Charlton, <a href="#p096">96</a></p> - -<p class="pcases">Baker v. London & S. W. Railway, <a href="#p096">96</a></p> - -<p class="pcases">Ballon v. Prescott, <a href="#p073">73</a></p> - -<p class="pcases">Barber v. Merriam, <a href="#p096">96</a>, <a href="#p097">97</a>, <a href="#p117">117</a>.</p> - -<p class="pcases">Barnes v. Means, <a href="#p058">58</a></p> - -<p class="pcases">Barnstable v. Thatcher, <a href="#p157">157</a></p> - -<p class="pcases">Basten v. Butler, <a href="#p020">20</a></p> - -<p class="pcases">Bassett v. Spofford, <a href="#p024">24</a></p> - -<p class="pcases">Battersby v. Lawrence, <a href="#p016">16</a></p> - -<p class="pcases">Baxter v. Gray, <a href="#p018">18</a>, <a href="#p019">19</a></p> - -<p class="pcases">Beekman v. Planter, <a href="#p018">18</a></p> - -<p class="pcases">Bell v. Parke, <a href="#p136">136</a></p> - -<p class="pcases">Bellinger v. Craigue, <a href="#p021">21</a>.</p> - -<p class="pcases">Bells v. Clifford, <a href="#p028">28</a></p> - -<p class="pcases">Bergold v. Puckta, <a href="#p131">131</a></p> - -<p class="pcases">Berier v. Galloway, <a href="#p036">36</a></p> - -<p class="pcases">Bibber v. Simpson, <a href="#p052">52</a></p> - -<p class="pcases">Billage v. Southbee, <a href="#p140">140</a></p> - -<p class="pcases">Bill v. Neal, <a href="#p130">130</a></p> - -<p class="pcases">Blackburn v. Great Western Railway, <a href="#p081">81</a></p> - -<p class="pcases">Blake v. Midland Railway, <a href="#p081">81</a>.</p> - -<p class="pcases">Blackburn v. Mackey, <a href="#p037">37</a>, <a href="#p039">39</a></p> - -<p class="pcases">Blogg v. Parkers, <a href="#p020">20</a></p> - -<p class="pcases">Boardman v. Woodman, <a href="#p113">113</a></p> - -<p class="pcases">Bogert v. Indianapolis, <a href="#p153">153</a></p> - -<p class="pcases">Boone v. State, <a href="#p188">188</a></p> - -<p class="pcases">Bowman v. Woods, <a href="#p051">51</a>, <a href="#p053">53</a>, <a href="#p064">64</a>, <a href="#p100">100</a></p> - -<p class="pcases">Boyd v. Lappington, <a href="#p033">33</a></p> - -<p class="pcases">Boynton v. Somersworth, <a href="#p067">67</a>, <a href="#p148">148</a></p> - -<p class="pcases">Boyle v. Winslow, <a href="#p166">166</a></p> - -<p class="pcases">Bracegirdle v. Orford, <a href="#p157">157</a></p> - -<p class="pcases">Bradbury v. Bardin, <a href="#p051">51</a>, <a href="#p120">120</a></p> - -<p class="pcases">Bradley v. Dodge, <a href="#p033">33</a></p> - -<p class="pcases">Bradford v. People, <a href="#p147">147</a></p> - -<p class="pcases">Brewer v. Dero, <a href="#p157">157</a></p> - -<p class="pcases">Broad v. Pitt, <a href="#p093">93</a></p> - -<p class="pcases">Brown v. N. Y. C., <a href="#p097">97</a></p> - -<p class="pcases">  ″  v. Marshall, <a href="#p179">179</a></p> - -<p class="pcases">  ″  v. Sheppard, <a href="#p099">99</a>, <a href="#p101">101</a></p> - -<p class="pcases">  ″  v. State, <a href="#p143">143</a></p> - -<p class="pcases">Buchanan v. State, <a href="#p029">29</a></p> - -<p class="pcases">Buell v. N. Y. C., <a href="#p117">117</a></p> - -<p class="pcases">Burton v. Scott, <a href="#p128">128</a></p> - - -<p class="pcenter">C.</p> - -<p class="pcases">Cadwallader v. West, <a href="#p139">139</a>, <a href="#p140">140</a></p> - -<p class="pcases">Cairo, etc., Railway v. Mahoney, <a href="#p041">41</a></p> - -<p class="pcases">Caldwell v. Murphy, <a href="#p097">97</a></p> - -<p class="pcases">Camp v. Martin, <a href="#p133">133</a></p> - -<p class="pcases">Campan v. North, <a href="#p094">94</a></p> - -<p class="pcases" id="p-viii">Campbell v. Richards, <a href="#p119">119</a></p> - -<p class="pcases">Carpenter v. Blake, <a href="#p057">57</a>, <a href="#p058">58</a>, <a href="#p063">63</a>, <a href="#p064">64</a>, <a href="#p072">72</a>, <a href="#p073">73</a></p> - -<p class="pcases">Carnes v. Nesbitt, <a href="#p193">193</a></p> - -<p class="pcases">Carson v. State, <a href="#p148">148</a></p> - -<p class="pcases">Carter v. Baker, <a href="#p114">114</a></p> - -<p class="pcases">  ″  v. State, <a href="#p103">103</a></p> - -<p class="pcases">Castner v. Sliker, <a href="#p112">112</a></p> - -<p class="pcases">Cawdry v. Highley, <a href="#p130">130</a></p> - -<p class="pcases">Chamberland v. Morgan, <a href="#p070">70</a></p> - -<p class="pcases">Chapen v. Marlborough, <a href="#p096">96</a>, <a href="#p097">97</a></p> - -<p class="pcases">Chicago. etc., Railway v. McKean, <a href="#p068">68</a></p> - -<p class="pcases">Chicago, etc., Railway v. McGiven, <a href="#p108">108</a></p> - -<p class="pcases">Chorley v. Bolcot, <a href="#p016">16</a></p> - -<p class="pcases">Clark v. Gill, <a href="#p026">26</a></p> - -<p class="pcases">Clarke v. Freeman, <a href="#p132">132</a></p> - -<p class="pcases">  ″  v. Hawke, <a href="#p138">138</a>, <a href="#p139">139</a></p> - -<p class="pcases">Clark v. Kerwin, <a href="#p069">69</a>, <a href="#p163">163</a></p> - -<p class="pcases">  ″  v. State, <a href="#p116">116</a>, <a href="#p124">124</a></p> - -<p class="pcases">Clay v. Roberts, <a href="#p134">134</a></p> - -<p class="pcases">Cleveland, etc., Railway v. Ferry, <a href="#p068">68</a></p> - -<p class="pcases">Cohen v. Continental Insurance Company, <a href="#p095">95</a></p> - -<p class="pcases">Collier v. Simpson, <a href="#p099">99</a>, <a href="#p103">103</a></p> - -<p class="pcases">Collins v. Grady, <a href="#p019">19</a></p> - -<p class="pcases">  ″  v. Carnegie, <a href="#p134">134</a>, <a href="#p135">135</a></p> - -<p class="pcases">  ″  v. Graves, <a href="#p023">23</a></p> - -<p class="pcases">Colton v. Thomas, <a href="#p172">172</a></p> - -<p class="pcases">Commonwealth v. Butterick, <a href="#p187">187</a></p> - -<p class="pcases">  ″  v. Cooley, <a href="#p155">155</a></p> - -<p class="pcases">  ″  v. Hackett, <a href="#p091">91</a></p> - -<p class="pcases">  ″  v. Hallett, <a href="#p187">187</a></p> - -<p class="pcases">  ″  v. Loring, <a href="#p155">155</a></p> - -<p class="pcases">  ″  v. Marshall, <a href="#p155">155</a></p> - -<p class="pcases">  ″  v. McPike, <a href="#p091">91</a></p> - -<p class="pcases">  ″  v. Ramsdell, <a href="#p187">187</a></p> - -<p class="pcases">  ″  v. Rich, <a href="#p128">128</a></p> - -<p class="pcases">  ″  v. Rodgers, <a href="#p109">109</a>, <a href="#p124">124</a>, <a href="#p127">127</a></p> - -<p class="pcases">  ″  v. Sturtevant, <a href="#p100">100</a>, <a href="#p117">117</a></p> - -<p class="pcases">  ″  v. Thompson, <a href="#p084">84</a>, <a href="#p089">89</a></p> - -<p class="pcases">Connecticut Mutual Life Ins. Co. v. Ellis, <a href="#p100">100</a></p> - -<p class="pcases">Cooper v. Lloyd, <a href="#p035">35</a></p> - -<p class="pcases">  ″  v. Phillips, <a href="#p038">38</a>, <a href="#p040">40</a></p> - -<p class="pcases">  ″  v. N. Y. C., <a href="#p041">41</a></p> - -<p class="pcases">Corsi v. Maretzek, <a href="#p043">43</a>, <a href="#p051">51</a>, <a href="#p064">64</a>, <a href="#p115">115</a></p> - -<p class="pcases">Cossey v. L. B, and S. C., <a href="#p096">96</a></p> - -<p class="pcases">Cox v. Midland Counties Ry., <a href="#p041">41</a></p> - -<p class="pcases">Craig v. Chambers, <a href="#p076">76</a></p> - -<p class="pcases">Craine v. Bandoine, <a href="#p033">33</a></p> - -<p class="pcases">Crantz v. Gill, <a href="#p037">37</a></p> - -<p class="pcases">Curtis v. Rochester, etc. Ry., <a href="#p079">79</a></p> - - -<p class="pcenter">D.</p> - -<p class="pcases">Davidson v. Nicholls, <a href="#p183">183</a></p> - -<p class="pcases">Davis v. Mason, <a href="#p193">193</a></p> - -<p class="pcases">  ″  v. Ockham, <a href="#p131">131</a></p> - -<p class="pcases">  ″  v. State, <a href="#p113">113</a>, <a href="#p117">117</a>, <a href="#p124">124</a>, <a href="#p126">126</a></p> - -<p class="pcases">Deane v. Annis, <a href="#p038">38</a></p> - -<p class="pcases">Delafield v. Parish, <a href="#p124">124</a></p> - -<p class="pcases">Demay v. Roberts, <a href="#p145">145</a></p> - -<p class="pcases">Dement, <i>Ex parte</i>, <a href="#p030">30</a></p> - -<p class="pcases">Denison v. Denison, <a href="#p138">138</a></p> - -<p class="pcases">Dent v. Bennett, <a href="#p139">139</a>, <a href="#p140">140</a>, <a href="#p172">172</a></p> - -<p class="pcases">Denton v. State, <a href="#p097">97</a>, <a href="#p098">98</a></p> - -<p class="pcases">Dickenson v. Barber, <a href="#p124">124</a></p> - -<p class="pcases">Dingnan v. Walker, <a href="#p192">192</a></p> - -<p class="pcases">Dixon v. Smith, <a href="#p134">134</a></p> - -<p class="pcases">Doggett v. Lane, <a href="#p141">141</a></p> - -<p class="pcases">Duclos’ Succession, <a href="#p024">24</a></p> - -<p class="pcases">Duffit v. James, <a href="#p021">21</a></p> - -<p class="pcases">Durnell v. Corfield, <a href="#p142">142</a></p> - - -<p class="pcenter">E.</p> - -<p class="pcases">Eakin v. Brown, <a href="#p068">68</a>, <a href="#p163">163</a></p> - -<p class="pcases">Edington v. Ætna Life Ins. Co., <a href="#p096">96</a></p> - -<p class="pcases">Edsall V. Russell, <a href="#p131">131</a>, <a href="#p133">133</a></p> - -<p class="pcases">Ellis v. Kelly, <a href="#p016">16</a></p> - -<p class="pcases">Emerson v. Lowell Gas L. Co., <a href="#p112">112</a></p> - - -<p class="pcenter">F.</p> - -<p class="pcases">Fairchild v. Bascomb, <a href="#p112">112</a>, <a href="#p113">113</a>, <a href="#p125">125</a>, <a href="#p126">126</a></p> - -<p class="pcases">Farnsworth v. Garrard, <a href="#p020">20</a></p> - -<p class="pcases">Farlar v. Lane, <a href="#p141">141</a></p> - -<p class="pcases">Farr v. Pearce, <a href="#p191">191</a></p> - -<p class="pcases">Fawcett v. Mothersell, <a href="#p077">77</a></p> - -<p class="pcases">Fenwick v. Bell, <a href="#p119">119</a></p> - -<p class="pcases">Fields v. Rutherford, <a href="#p076">76</a></p> - -<p class="pcases">Fisk v. Wait, <a href="#p069">69</a></p> - -<p class="pcases">Fletcher v. Fletcher, <a href="#p146">146</a></p> - -<p class="pcases">Flint v. Bodenhamer, <a href="#p124">124</a></p> - -<p class="pcases">Flower’s Case, <a href="#p130">130</a></p> - -<p class="pcases">Fox v. Glastonbury, <a href="#p020">20</a></p> - -<p class="pcases">Forgery v. First Nat. Bank, <a href="#p114">114</a></p> - -<p class="pcases">Foster v. Small, <a href="#p134">134</a></p> - -<p class="pcases">Fraser v. Jennison, <a href="#p094">94</a>, <a href="#p103">103</a>, <a href="#p106">106</a></p> - - -<p class="pcenter">G.</p> - -<p class="pcases">Gale v. Rector, <a href="#p103">103</a></p> - -<p class="pcases">Gallagher v. Thompson, <a href="#p020">20</a></p> - -<p class="pcases">Gardiner v. Heartt, <a href="#p056">56</a></p> - -<p class="pcases">Gardner v. People, <a href="#p117">117</a></p> - -<p class="pcases">Geiselman v. Scott, <a href="#p068">68</a></p> - -<p class="pcases">Genshaw v. Germain, <a href="#p017">17</a></p> - -<p class="pcases">Getchell v. Hill, <a href="#p114">114</a></p> - -<p class="pcases">George v. Skivington, <a href="#p183">183</a></p> - -<p class="pcases">Gibson v. Russell, <a href="#p140">140</a></p> - -<p class="pcases">  ″  v. Williams, <a href="#p119">119</a></p> - -<p class="pcases">Gilman v. Andrews, <a href="#p171">171</a></p> - -<p class="pcases">Gladwell v. Steggall, <a href="#p075">75</a></p> - -<p class="pcases">Gramm v. Boener, <a href="#p069">69</a></p> - -<p class="pcases">Goddart v. Haselfoot, <a href="#p132">132</a></p> - -<p class="pcases">Granger Ins. Co. v. Brown, <a href="#p159">159</a></p> - -<p class="pcases">Grattan v. Metropolitan L. I. Co., <a href="#p095">95</a></p> - -<p class="pcases">Gray v. McLaughlin, <a href="#p097">97</a></p> - -<p class="pcases">Greenough v. Gaskill, <a href="#p093">93</a></p> - -<p class="pcases">Greonvelt’s Case, <a href="#p055">55</a></p> - -<p class="pcases">Greville v. Lylee, <a href="#p142">142</a></p> - -<p class="pcases">Guthrie v. Weaver, <a href="#p153">153</a></p> - - -<p class="pcenter">H.</p> - -<p class="pcases">Haguenin v. Baseley, <a href="#p138">138</a></p> - -<p class="pcases">Hains’ Case, <a href="#p152">152</a></p> - -<p class="pcases">Hall v. Semple, <a href="#p146">146</a></p> - -<p class="pcases">Hammond v. Stewart, <a href="#p026">26</a></p> - -<p class="pcases">Hancke v. Hooper, <a href="#p058">58</a>, <a href="#p167">167</a>, <a href="#p194">194</a></p> - -<p class="pcases">Handey v. Henson, <a href="#p017">17</a></p> - -<p class="pcases">Haniline v. Commonwealth, <a href="#p174">174</a></p> - -<p class="pcases">Hansford v. Payne, <a href="#p182">182</a></p> - -<p class="pcases">Harbottle and Wilson <i>re</i>, <a href="#p027">27</a></p> - -<p class="pcases">Harris v. Panama Railway Co., <a href="#p103">103</a>, <a href="#p113">113</a></p> - -<p class="pcases">Harris v. Russell, <a href="#p094">94</a></p> - -<p class="pcases">Harrison v. Bush, <a href="#p136">136</a></p> - -<p class="pcases">  ″  v. Grady, <a href="#p033">33</a>, <a href="#p035">35</a>, <a href="#p036">36</a></p> - -<p class="pcases">Hartman v. Tegart, <a href="#p036">36</a></p> - -<p class="pcases">Hartford Pro. Ins. Co. v. Harmer, <a href="#p108">108</a></p> - -<p class="pcases">Harvey v. State, <a href="#p104">104</a></p> - -<p class="pcases">Hastings v. Rider, <a href="#p128">128</a></p> - -<p class="pcases">  ″  v. Whitley, <a href="#p193">193</a></p> - -<p class="pcases">Hathaway v. Nat. Life Ins. Co., <a href="#p112">112</a></p> - -<p class="pcases">Haynard v. Young, <a href="#p193">193</a></p> - -<p class="pcases">Hathorn v. Richmond, <a href="#p061">61</a></p> - -<p class="pcases">Heald v. Wing, <a href="#p113">113</a>, <a href="#p128">128</a></p> - -<p class="pcases">Heath v. Gibson, <a href="#p059">59</a></p> - -<p class="pcases">Hegerick v. French, <a href="#p080">80</a></p> - -<p class="pcases">Heinemann’s Appeal, <i>re</i>, <a href="#p048">48</a></p> - -<p class="pcases">Hewitt v. Prime, <a href="#p095">95</a></p> - -<p class="pcases">  ″  Wilcox, <a href="#p018">18</a></p> - -<p class="pcases">Hibbard v. Thompson, <a href="#p068">68</a>, <a href="#p069">69</a></p> - -<p class="pcases">Hides v. Hides, <a href="#p140">140</a></p> - -<p class="pcases">Higham v. Ridgway, <a href="#p106">106</a></p> - -<p class="pcases">Hill v. Featherstonhaugh, <a href="#p021">21</a></p> - -<p class="pcases">Hills v. Home Insurance Co., <a href="#p113">113</a></p> - -<p class="pcases">Hitchcock v. Burgett, <a href="#p148">148</a></p> - -<p class="pcases">Hoard v. Peck, <a href="#p187">187</a></p> - -<p class="pcases">Hoener v. Koch, <a href="#p118">118</a></p> - -<p class="pcases">Hoghton v. Hoghton, <a href="#p138">138</a>, <a href="#p139">139</a></p> - -<p class="pcases">Hollenback v. Fleet, <a href="#p177">177</a></p> - -<p class="pcases">Holmes v. Halde, <a href="#p080">80</a></p> - -<p class="pcases">Hood v. Grimes, <a href="#p065">65</a></p> - -<p class="pcases">Horner v. Graves, <a href="#p193">193</a></p> - -<p class="pcases">Horton v. Green, <a href="#p054">54</a>, <a href="#p112">112</a></p> - -<p class="pcases">Howe v. Young, <a href="#p179">179</a></p> - -<p class="pcases">Hoyt v. Casey, <a href="#p039">39</a></p> - -<p class="pcases">Hughes v. Hampton, <a href="#p023">23</a></p> - -<p class="pcases">Huffman v. Click, <a href="#p103">103</a></p> - -<p class="pcases">Humphreys v. Stilwell, <a href="#p137">137</a></p> - -<p class="pcases">Hunn v. Hunn, <a href="#p095">95</a></p> - -<p class="pcases">Hunter v. Blount, <a href="#p064">64</a></p> - -<p class="pcases">  ″  v. Ogden, <a href="#p073">73</a></p> - -<p class="pcases">  ″  v. Sharpe, <a href="#p133">133</a></p> - -<p class="pcases">Hunt v. Lowell Gas Light Co., <a href="#p126">126</a></p> - -<p class="pcases">Hupe v. Phelps, <a href="#p021">21</a></p> - - -<p class="pcenter">I.</p> - -<p class="pcases">Illinois Cen. Railway v. Sutton, <a href="#p097">97</a></p> - -<p class="pcases">Indianapolis, etc., Railway v. Gaston, <a href="#p079">79</a></p> - -<p class="pcases">Indian. and Cin. Railway v. Caldwell, <a href="#p069">69</a></p> - - -<p class="pcenter">J.</p> - -<p class="pcases">Jackson v. Hyde, <a href="#p077">77</a></p> - -<p class="pcases">Jarrett v. Jarrett, <a href="#p124">124</a></p> - -<p class="pcases">Jauncey v. Knowles, <a href="#p190">190</a></p> - -<p class="pcases">Jenkins v. French, <a href="#p080">80</a></p> - -<p class="pcases">Johnson v. Robertson, <a href="#p131">131</a></p> - -<p class="pcases">  ″  v. Wills, <a href="#p079">79</a></p> - -<p class="pcases">Jones v. Diver, <a href="#p133">133</a></p> - -<p class="pcases">  ″  v. Fay, <a href="#p184">184</a></p> - -<p class="pcases">  ″  v. Goodrich, <a href="#p141">141</a></p> - -<p class="pcases">  ″  v. George, <a href="#p178">178</a></p> - -<p class="pcases">  ″  v. Murray, <a href="#p179">179</a></p> - -<p class="pcases">  ″  v. Northmore, <a href="#p078">78</a></p> - -<p class="pcases">  ″  v. White, <a href="#p108">108</a></p> - - -<p class="pcenter">K.</p> - -<p class="pcases">Kannen v. McMullen, <a href="#p021">21</a></p> - -<p class="pcases">Keily v. Colton, <a href="#p164">164</a></p> - -<p class="pcases">Keith v. Lothrop, <a href="#p116">116</a></p> - -<p class="pcases">Kennard v. Burton, <a href="#p097">97</a></p> - -<p class="pcases">Kennedy v. People, <a href="#p108">108</a>, <a href="#p119">119</a></p> - -<p class="pcases">Kerwhaker v. Cleveland, etc., Railway, <a href="#p069">69</a></p> - -<p class="pcases">Kilborne v. Jennings, <a href="#p114">114</a></p> - -<p class="pcases">Kingston’s Case, Duchess of, <a href="#p093">93</a></p> - -<p class="pcases">Kinney v. Nash, <a href="#p135">135</a></p> - -<p class="pcases">Klock v. Burger, <a href="#p174">174</a></p> - - -<p class="pcenter">L.</p> - -<p class="pcases">Lamphier v. Philpot, <a href="#p084">84</a></p> - -<p class="pcases">Landon v. Humphrey, <a href="#p022">22</a></p> - -<p class="pcases">Langdon v. Mutual Life Insurance Co., <a href="#p054">54</a></p> - -<p class="pcases">Lee v. Hamerton, <a href="#p096">96</a></p> - -<p class="pcases">  ″  v. Griffin, <a href="#p169">169</a></p> - -<p class="pcases">Leighton v. Sargent, <a href="#p058">58</a>, <a href="#p064">64</a>, <a href="#p067">67</a>, <a href="#p079">79</a>, <a href="#p118">118</a></p> - -<p class="pcases">Lett v. St. Lawrence & Ottawa Railway, <a href="#p081">81</a></p> - -<p class="pcases">Lester v. Pittsford, <a href="#p113">113</a></p> - -<p class="pcases">Linn v. Sigsbee, <a href="#p120">120</a></p> - -<p class="pcases">Livingstone’s Case, <a href="#p113">113</a></p> - -<p class="pcases">Long v. Chubb, <a href="#p132">132</a></p> - -<p class="pcases">  ″  v. Morrison, <a href="#p021">21</a>, <a href="#p057">57</a></p> - -<p class="pcases">Longmeid v. Holliday, <a href="#p074">74</a></p> - -<p class="pcases">Lorg v. First German Cong. <a href="#p113">113</a></p> - -<p class="pcases">Lovatt v. Tribe, <a href="#p125">125</a></p> - -<p class="pcases">Luning v. State, <a href="#p100">100</a>, <a href="#p105">105</a></p> - -<p class="pcases">Lush v. McDaniel, <a href="#p097">97</a></p> - -<p class="pcases">Lynn’s Case, <a href="#p154">154</a>, <a href="#p158">158</a></p> - - -<p class="pcenter">M</p> - -<p class="pcases">Mackenna v. Parkes, <a href="#p190">190</a></p> - -<p class="pcases">Mahoney v. Nat. Widow’s Life Ass. <a href="#p096">96</a></p> - -<p class="pcases">Major v. Knight, <a href="#p142">142</a></p> - -<p class="pcases">Mallan v. May, <a href="#p193">193</a></p> - -<p class="pcases">Malton v. Nesbitt, <a href="#p125">125</a></p> - -<p class="pcases">Marshall v. Brown, <a href="#p101">101</a></p> - -<p class="pcases">  ″  v. Peck, <a href="#p179">179</a></p> - -<p class="pcases">Masons v. Fuller, <a href="#p111">111</a></p> - -<p class="pcases">Matteson v. N. Y. C. Railway, <a href="#p097">97</a>, <a href="#p117">117</a></p> - -<p class="pcases">Maxon v. Perrott, <a href="#p170">170</a></p> - -<p class="pcases">May v. Thompson, <a href="#p192">192</a></p> - -<p class="pcases">Meagher v. Driscoll, <a href="#p157">157</a></p> - -<p class="pcases">Mendum v. Commonwealth, <a href="#p113">113</a></p> - -<p class="pcases">Mertz v. Detweiler, <a href="#p064">64</a>, <a href="#p118">118</a></p> - -<p class="pcases">Metropolitan Railway v. Jackson, <a href="#p076">76</a></p> - -<p class="pcases">Michigan Cen. Railway v. Hasseneyer, <a href="#p061">61</a></p> - -<p class="pcases">Middleton v. Sherbourne, <a href="#p141">141</a>, <a href="#p143">143</a></p> - -<p class="pcases">Miller v. Beal, <a href="#p023">23</a></p> - -<p class="pcases">Mills v. Perkins, <a href="#p174">174</a></p> - -<p class="pcases">Mitchell v. Homfray, <a href="#p141">141</a></p> - -<p class="pcases">  ″  v. State, <a href="#p119">119</a></p> - -<p class="pcases">  ″  v. Connor, <a href="#p147">147</a></p> - -<p class="pcases">Mock v. Kelly, <a href="#p018">18</a>, <a href="#p025">25</a></p> - -<p class="pcases">Moises v. Thornton, <a href="#p135">135</a></p> - -<p class="pcases">Morgan v. Hallen, <a href="#p017">17</a></p> - -<p class="pcases">  ″  v. Schuyler, <a href="#p173">173</a></p> - -<p class="pcases">Morrison v. Harmer, <a href="#p133">133</a></p> - -<p class="pcases">Morse v. Auburn, etc., Railway, <a href="#p081">81</a></p> - -<p class="pcases">Morse v. State, <a href="#p119">119</a></p> - -<p class="pcases">Murphy v. Kellett, <a href="#p137">137</a></p> - - -<p class="pcenter">Mc.</p> - -<p class="pcases">McAllister v. State, <a href="#p124">124</a>, <a href="#p126">126</a></p> - -<p class="pcases">McCandless v. McWha, <a href="#p058">58</a>, <a href="#p059">59</a>, <a href="#p061">61</a>, <a href="#p067">67</a></p> - -<p class="pcases">McClallen v. Adams, <a href="#p026">26</a></p> - -<p class="pcases">McClurg’s Appeal, <a href="#p193">193</a></p> - -<p class="pcases">McEwan v. Bigelow, <a href="#p114">114</a></p> - -<p class="pcases">  ″  v. Milne, <a href="#p138">138</a></p> - -<p class="pcases">McIntyre v. Belcher, <a href="#p191">191</a></p> - -<p class="pcases">McLeod v. Wakley, <a href="#p133">133</a></p> - -<p class="pcases">McPherson v. Chedell, <a href="#p018">18</a></p> - - -<p class="pcenter">N.</p> - -<p class="pcases">Newell v. Doty, <a href="#p117">117</a></p> - -<p class="pcases">New England Glass Co. v. Lovell, <a href="#p119">119</a></p> - -<p class="pcases">New Orleans, etc., Railway v. Allbritton, <a href="#p111">111</a></p> - -<p class="pcases">Newton v. Ker, <a href="#p023">23</a></p> - -<p class="pcases">Nickson v. Brohan, <a href="#p194">194</a></p> - -<p class="pcases">Nicols v. Pitman, <a href="#p195">195</a></p> - -<p class="pcases">Norton v. Sewall, <a href="#p182">182</a></p> - - -<p class="pcenter">O.</p> - -<p class="pcases">Ordway v. Haynes, <a href="#p103">103</a></p> - - -<p class="pcenter">P.</p> - -<p class="pcases">Page v. Barker, <a href="#p118">118</a></p> - -<p class="pcases">  ″  v. State, <a href="#p126">126</a></p> - -<p class="pcases">Parker v. Adams, <a href="#p068">68</a>, <a href="#p069">69</a>, <a href="#p163">163</a></p> - -<p class="pcases">Parkinson v. Atkinson, <a href="#p026">26</a></p> - -<p class="pcases">Parnell v. Commonwealth, <a href="#p114">114</a>, <a href="#p124">124</a></p> - -<p class="pcases">Patten v. Wiggin, <a href="#p052">52</a>, <a href="#p057">57</a>, <a href="#p058">58</a>, <a href="#p062">62</a></p> - -<p class="pcases">Peacock v. Kesnot, <a href="#p140">140</a></p> - -<p class="pcases">Pennell v. Cummings, <a href="#p145">145</a></p> - -<p class="pcases">People v. Anderson, <a href="#p103">103</a></p> - -<p class="pcases">  ″  v. Hall, <a href="#p099">99</a></p> - -<p class="pcases">  ″  v. Monroe, <a href="#p020">20</a></p> - -<p class="pcases">People v. Montgomery, <a href="#p030">30</a></p> - -<p class="pcases">  ″  v. McCann, <a href="#p125">125</a></p> - -<p class="pcases">  ″  v. N. Y. Hospital, <a href="#p069">69</a></p> - -<p class="pcases">  ″  v. Wheeler, <a href="#p103">103</a></p> - -<p class="pcases">Perionowsky v. Freeman, <a href="#p066">66</a>, <a href="#p070">70</a></p> - -<p class="pcases">Phillips v. S. W. Railway, <a href="#p079">79</a></p> - -<p class="pcases">Pierson v. People, <a href="#p095">95</a></p> - -<p class="pcases">Pinney v. Cohill, <a href="#p101">101</a></p> - -<p class="pcases">Piper v. Manifee, <a href="#p022">22</a>, <a href="#p167">167</a></p> - -<p class="pcases">Pippin v. Shepherd, <a href="#p065">65</a>, <a href="#p074">74</a></p> - -<p class="pcases">Poe v. Mondford, <a href="#p131">131</a></p> - -<p class="pcases">Polk v. State, <a href="#p112">112</a></p> - -<p class="pcases">Popham v. Brooke, <a href="#p140">140</a></p> - -<p class="pcases">Potter v. Warner, <a href="#p063">63</a>, <a href="#p071">71</a></p> - -<p class="pcases">  ″  v. Virgil, <a href="#p036">36</a></p> - -<p class="pcases">Poucher v. Norman, <a href="#p016">16</a></p> - -<p class="pcases">Pratt v. Barker, <a href="#p140">140</a></p> - -<p class="pcases">Puryear v. Reese, <a href="#p124">124</a></p> - - -<p class="pcenter">Q.</p> - -<p class="pcases">Quafe v. C. & N. W. Railway, <a href="#p098">98</a></p> - - -<p class="pcenter">R.</p> - -<p class="pcases">Ramadge v. Ryan, <a href="#p118">118</a>, <a href="#p119">119</a>, <a href="#p132">132</a></p> - -<p class="pcases">  ″  v. Wakley, <a href="#p132">132</a></p> - -<p class="pcases">Ray v. Burbank, <a href="#p186">186</a></p> - -<p class="pcases">Reynolds v. Graves, <a href="#p054">54</a></p> - -<p class="pcases">  ″  v. Robinson, <a href="#p120">120</a></p> - -<p class="pcases">Rhodes v. Bates, <a href="#p138">138</a></p> - -<p class="pcases">Rice v. State, <a href="#p084">84</a>, <a href="#p087">87</a>, <a href="#p089">89</a></p> - -<p class="pcases">Rich v. Pierpont, <a href="#p059">59</a>, <a href="#p062">62</a>, <a href="#p117">117</a></p> - -<p class="pcases">Ripon v. Bittel, <a href="#p100">100</a>, <a href="#p101">101</a></p> - -<p class="pcases">Ritchey v. West, <a href="#p065">65</a></p> - -<p class="pcases">Roberts v. Johnson, <a href="#p112">112</a></p> - -<p class="pcases">  ″  v. Kerfoot, <a href="#p024">24</a></p> - -<p class="pcases">Robinson v. N. Y. C. Railway, <a href="#p103">103</a></p> - -<p class="pcases">Rodgers v. Cline, <a href="#p133">133</a></p> - -<p class="pcases">Roelker, <i>re</i>, <a href="#p029">29</a></p> - -<p class="pcases">Rogers v. Cain, <a href="#p097">97</a></p> - -<p class="pcases">  ″  v. Turner, <a href="#p038">38</a></p> - -<p class="pcases">Roosa v. Boston Loan Co., <a href="#p098">98</a></p> - -<p class="pcases">Rose v. College of Physicians, <a href="#p012">12</a></p> - -<p class="pcases">Rowell v. Lowell, <a href="#p098">98</a></p> - -<p class="pcases">Ruddock v. Lowe, <a href="#p065">65</a></p> - -<p class="pcases">Russell v. State, <a href="#p128">128</a></p> - -<p class="pcases">Rutherford v. Evans, <a href="#p135">135</a></p> - -<p class="pcases">  ″  v. Norris, <a href="#p110">110</a></p> - -<p class="pcases">R. v. Bennett, <a href="#p194">194</a></p> - -<p class="pcases">  ″  v. Burnett, <a href="#p147">147</a></p> - -<p class="pcases">  ″  v. Campbell, <a href="#p046">46</a></p> - -<p class="pcases">  ″  v. Case, <a href="#p144">144</a></p> - -<p class="pcases">  ″  v. Chamberlaine, <a href="#p085">85</a></p> - -<p class="pcases">  ″  v. Coll. Phy. & Sur., <a href="#p045">45</a>, <a href="#p047">47</a></p> - -<p class="pcases">  ″  v. Coll. Phy. & Sur., Ont., <a href="#p148">148</a></p> - -<p class="pcases">  ″  v. Coney, <a href="#p144">144</a></p> - -<p class="pcases">  ″  v. Crouch, <a href="#p103">103</a></p> - -<p class="pcases">  ″  v. Cuddy, <a href="#p144">144</a></p> - -<p class="pcases">  ″  v. Downes, <a href="#p039">39</a></p> - -<p class="pcases">  ″  v. Frances, <a href="#p144">144</a></p> - -<p class="pcases">  ″  v. Fraser, <a href="#p147">147</a></p> - -<p class="pcases">  ″  v. Gibbons, <a href="#p093">93</a></p> - -<p class="pcases">  ″  v. Gilles, <a href="#p154">154</a></p> - -<p class="pcases">  ″  v. Hannah, <a href="#p147">147</a></p> - -<p class="pcases">  ″  v. Hessel, <a href="#p046">46</a></p> - -<p class="pcases">  ″  v. Higginson, <a href="#p125">125</a></p> - -<p class="pcases">  ″  v. Hines, <a href="#p039">39</a></p> - -<p class="pcases">  ″  v. Lee, <a href="#p091">91</a></p> - -<p class="pcases">  ″  v. Long, <a href="#p083">83</a>, <a href="#p086">86</a>, <a href="#p087">87</a></p> - -<p class="pcases">  ″  v. Lynn, <a href="#p154">154</a>, <a href="#p159">159</a></p> - -<p class="pcases">  ″  v. Macleod, <a href="#p066">66</a></p> - -<p class="pcases">  ″  v. Markuss, <a href="#p088">88</a></p> - -<p class="pcases">  ″  v. Morby, <a href="#p039">39</a></p> - -<p class="pcases">  ″  v. Noakes, <a href="#p056">56</a>, <a href="#p183">183</a></p> - -<p class="pcases">  ″  v. Offord, <a href="#p124">124</a></p> - -<p class="pcases">  ″  v. Price, <a href="#p154">154</a></p> - -<p class="pcases">  ″  v. Richards, <a href="#p125">125</a></p> - -<p class="pcases">  ″  v. Rosinski, <a href="#p144">144</a></p> - -<p class="pcases">  ″  v. Searle, <a href="#p120">120</a>, <a href="#p124">124</a>, <a href="#p125">125</a></p> - -<p class="pcases">  ″  v. Sharpe, <a href="#p153">153</a>, <a href="#p154">154</a></p> - -<p class="pcases">  ″  v. Stanton, <a href="#p144">144</a></p> - -<p class="pcases">  ″  v. Simpson, <a href="#p065">65</a>, <a href="#p084">84</a>, <a href="#p087">87</a></p> - -<p class="pcases">  ″  v. Smith, <a href="#p040">40</a></p> - -<p class="pcases">  ″  v. Spiller, <a href="#p084">84</a></p> - -<p class="pcases">  ″  v. Spilling, <a href="#p085">85</a></p> - -<p class="pcases">  ″  v. Stitt, <a href="#p117">117</a></p> - -<p class="pcases">  ″  v. Sutton, <a href="#p147">147</a></p> - -<p class="pcases">  ″  v. Tefft, <a href="#p046">46</a>, <a href="#p190">190</a></p> - -<p class="pcases">  ″  v. Tessymond, <a href="#p194">194</a></p> - -<p class="pcases">  ″  v. Thomas, <a href="#p099">99</a></p> - -<p class="pcases">  ″  v. Trick, <a href="#p083">83</a></p> - -<p class="pcases">  ″  v. Van Butchell, <a href="#p084">84</a></p> - -<p class="pcases">  ″  v. Vantandillo, <a href="#p147">147</a></p> - -<p class="pcases">  ″  v. Wagstaffe, <a href="#p039">39</a></p> - -<p class="pcases">  ″  v. Webb, <a href="#p084">84</a>, <a href="#p090">90</a></p> - -<p class="pcases">  ″  v. West, <a href="#p147">147</a></p> - -<p class="pcases">  ″  v. Whitehead, <a href="#p117">117</a></p> - -<p class="pcases">  ″  v. Williamson, <a href="#p085">85</a></p> - -<p class="pcases">  ″  v. Wright, <a href="#p125">125</a></p> - - -<p class="pcenter">S.</p> - -<p class="pcases">Sainter v. Ferguson, <a href="#p193">193</a></p> - -<p class="pcases">Scott v. Wakem, <a href="#p146">146</a></p> - -<p class="pcases">Seare v. Prentice, <a href="#p021">21</a>, <a href="#p064">64</a></p> - -<p class="pcases">Seavey v. Preble, <a href="#p143">143</a></p> - -<p class="pcases">Secord v. Harris, <a href="#p131">131</a></p> - -<p class="pcases">Sellen v. Norman, <a href="#p040">40</a></p> - -<p class="pcases">Shafer v. Dean’s ad’mor, <a href="#p120">120</a></p> - -<p class="pcases">Shearwood v. Hay, <a href="#p044">44</a></p> - -<p class="pcases">Sheldon v. Johnston, <a href="#p024">24</a></p> - -<p class="pcases">Shields v. Blackburne, <a href="#p065">65</a>, <a href="#p066">66</a></p> - -<p class="pcases">Simmons v. Means, <a href="#p018">18</a></p> - -<p class="pcases">Simonds v. Henry, <a href="#p058">58</a>, <a href="#p162">162</a>, <a href="#p168">168</a></p> - -<p class="pcases">Simpson v. Dismore, <a href="#p018">18</a></p> - -<p class="pcases">Sinclair v. Rourk, <a href="#p113">113</a></p> - -<p class="pcases">Sizer v. Burt, <a href="#p106">106</a></p> - -<p class="pcases">Skinner v. G. N. Ry., <a href="#p096">96</a></p> - -<p class="pcases">Skirving v. Ross, <a href="#p134">134</a></p> - -<p class="pcases">Slater v. Baker, <a href="#p059">59</a>, <a href="#p071">71</a>, <a href="#p168">168</a></p> - -<p class="pcases">Small v. Howard, <a href="#p061">61</a></p> - -<p class="pcases">Smith v. Lane, <a href="#p051">51</a></p> - -<p class="pcases">  ″  v. Hyde, <a href="#p025">25</a></p> - -<p class="pcases">  ″  v. Watson, <a href="#p018">18</a>, <a href="#p034">34</a></p> - -<p class="pcases">Southey v. Denny, <a href="#p130">130</a>, <a href="#p132">132</a></p> - -<p class="pcases">Spaun v. Mercer, <a href="#p033">33</a></p> - -<p class="pcases">Stackman v. Vivian, <a href="#p038">38</a></p> - -<p class="pcases">Staunton v. Parker, <a href="#p094">94</a></p> - -<p class="pcases">State v. Bowman, <a href="#p117">117</a></p> - -<p class="pcases">  ″  v. Clark, <a href="#p118">118</a></p> - -<p class="pcases">  ″  v. Cook, <a href="#p112">112</a></p> - -<p class="pcases">  ″  v. Dickinson, <a href="#p147">147</a></p> - -<p class="pcases">  ″  v. Fitzgerald, <a href="#p147">147</a></p> - -<p class="pcases">  ″  v. Gedicke, <a href="#p147">147</a></p> - -<p class="pcases">  ″  v. Hardister, <a href="#p088">88</a></p> - -<p class="pcases">  ″  v. Henkle, <a href="#p112">112</a></p> - -<p class="pcases">  ″  v. Hoyt, <a href="#p104">104</a>, <a href="#p105">105</a></p> - -<p class="pcases">  ″  v. Holmes, <a href="#p174">174</a></p> - -<p class="pcases">  ″  v. Knowles, <a href="#p188">188</a></p> - -<p class="pcases">  ″  v. Laffer, <a href="#p187">187</a></p> - -<p class="pcases">  ″  v. Jones, <a href="#p117">117</a></p> - -<p class="pcases">  ″  v. Powell, <a href="#p117">117</a></p> - -<p class="pcases">  ″  v. Reddick, <a href="#p112">112</a></p> - -<p class="pcases">  ″  v. Shultz, <a href="#p085">85</a>, <a href="#p089">89</a></p> - -<p class="pcases">  ″  v. Slagh, <a href="#p117">117</a></p> - -<p class="pcases">  ″  v. Slagle, <a href="#p147">147</a></p> - -<p class="pcases">  ″  v. Smith, <a href="#p116">116</a>, <a href="#p117">117</a></p> - -<p class="pcases">  ″  v. Sturtevant, <a href="#p117">117</a></p> - -<p class="pcases">  ″  v. Watson, <a href="#p110">110</a></p> - -<p class="pcases">  ″  v. West, <a href="#p104">104</a></p> - -<p class="pcases">  ″  v. Windsor, <a href="#p126">126</a></p> - -<p class="pcases">  ″  v. Wood, <a href="#p111">111</a>, <a href="#p117">117</a></p> - -<p class="pcases">  ″  v. Wray, <a href="#p188">188</a></p> - -<p class="pcases">Stephenson v. N. Y. and H. R. Ry., <a href="#p041">41</a></p> - -<p class="pcases">Stirling v. Thorp, <a href="#p100">100</a></p> - -<p class="pcases">Street v. Blackburn, <a href="#p166">166</a></p> - -<p class="pcases">St. Louis Mut. Ins. Co. v. Graves, <a href="#p115">115</a></p> - -<p class="pcases">Suegoe’s Case, <a href="#p133">133</a></p> - -<p class="pcases">Summer v. State, <a href="#p031">31</a></p> - -<p class="pcases">Sutton v. Tracy, <a href="#p048">48</a>, <a href="#p054">54</a></p> - -<p class="pcases">Swain v. Tyler, <a href="#p038">38</a></p> - - -<p class="pcenter">T.</p> - -<p class="pcases">Tate v. State, <a href="#p155">155</a>, <a href="#p156">156</a></p> - -<p class="pcases">Tatum v. Mohr, <a href="#p114">114</a></p> - -<p class="pcases">Tingley v. Congill, <a href="#p125">125</a></p> - -<p class="pcases">Thistleton v. Frewer, <a href="#p052">52</a></p> - -<p class="pcases">Thomas v. Winchester, <a href="#p180">180</a></p> - -<p class="pcases">Thorpe v. Shapleigh, <a href="#p036">36</a></p> - -<p class="pcases">Todd v. Myers, <a href="#p023">23</a></p> - -<p class="pcases">Toomes, <i>re</i>, <a href="#p111">111</a>, <a href="#p113">113</a></p> - -<p class="pcases">Towne v. Gresley, <a href="#p017">17</a></p> - -<p class="pcases">Tracy Peerage, <a href="#p110">110</a></p> - -<p class="pcases">Tullis v. Kidd, <a href="#p113">113</a></p> - -<p class="pcases">Tulty v. Alewin, <a href="#p131">131</a></p> - -<p class="pcases">Turner v. Reynall, <a href="#p044">44</a>, <a href="#p190">190</a></p> - -<p class="pcases">  ″  v. Turner, <a href="#p026">26</a></p> - -<p class="pcases">Tuson v. Batting, <a href="#p019">19</a>, <a href="#p023">23</a></p> - -<p class="pcases">Twombly v. Leach, <a href="#p117">117</a></p> - - -<p class="pcenter">U.</p> - -<p class="pcases">U. S. v. McGlue, <a href="#p126">126</a>, <a href="#p127">127</a></p> - -<p class="pcases">Utley v. Burns, <a href="#p058">58</a></p> - - -<p class="pcenter">V.</p> - -<p class="pcases">Van Bracken v. Fondar, <a href="#p179">179</a></p> - -<p class="pcases">Van Tassel v. Capson, <a href="#p135">135</a></p> - -<p class="pcases">Veitch v. Russell, <a href="#p016">16</a></p> - -<p class="pcases">Villalobas v. Mooney, <a href="#p023">23</a></p> - - -<p class="pcenter">W.</p> - -<p class="pcases">Wade v. DeWitt, <a href="#p104">104</a>, <a href="#p105">105</a></p> - -<p class="pcases">Wagstaffe v. Sharpe, <a href="#p044">44</a></p> - -<p class="pcases">Walker v. G. W. Railway, <a href="#p041">41</a></p> - -<p class="pcases">Wakley v. Healey, <a href="#p135">135</a></p> - -<p class="pcases">Washburn v. Cuddihy, <a href="#p103">103</a></p> - -<p class="pcases">Watling v. Walters, <a href="#p033">33</a></p> - -<p class="pcases">Watson v. Vanderlash, <a href="#p131">131</a></p> - -<p class="pcases">Webb v. Paige, <a href="#p026">26</a>, <a href="#p028">28</a></p> - -<p class="pcases">Webber v. Shampake, <a href="#p036">36</a></p> - -<p class="pcases">Wennall v. Adney, <a href="#p040">40</a></p> - -<p class="pcases">Whetherbee v. Whetherbee, <a href="#p128">128</a></p> - -<p class="pcases">Whalen v. St. Louis, etc., Railway, <a href="#p079">79</a></p> - -<p class="pcases">Wharton v. Brook, <a href="#p130">130</a></p> - -<p class="pcases">Wheeler v. Sims, <a href="#p023">23</a></p> - -<p class="pcases">Whitcomb v. Reid, <a href="#p171">171</a></p> - -<p class="pcases">Whittaker v. Parker, <a href="#p110">110</a></p> - -<p class="pcases">White v. Bailey, <a href="#p124">124</a>, <a href="#p125">125</a></p> - -<p class="pcases">  ″  v. Carroll, <a href="#p132">132</a></p> - -<p class="pcases">Williams v. Poppleton, <a href="#p118">118</a></p> - -<p class="pcases">  ″  v. Williams, <a href="#p153">153</a></p> - -<p class="pcases">Wilmot v. Howard, <a href="#p057">57</a>, <a href="#p070">70</a></p> - -<p class="pcases">  ″  v. Shaw, <a href="#p047">47</a></p> - -<p class="pcases">Wilson v. Brett, <a href="#p065">65</a>, <a href="#p166">166</a></p> - -<p class="pcases">  ″  v. Granby, <a href="#p097">97</a></p> - -<p class="pcases">  ″  v. People, <a href="#p117">117</a></p> - -<p class="pcases">  ″  v. Rastall, <a href="#p093">93</a></p> - -<p class="pcases">Winans v. N. Y. & E. Railway, <a href="#p113">113</a>, <a href="#p121">121</a></p> - -<p class="pcases">Wise v. Wilson, <a href="#p194">194</a></p> - -<p class="pcases">Witt v. Witt, <a href="#p097">97</a></p> - -<p class="pcases">Wohlfarht v. Beckert, <a href="#p185">185</a></p> - -<p class="pcases">Woods v. Kelly, <a href="#p037">37</a></p> - -<p class="pcases">Woods v. State, <a href="#p188">188</a></p> - -<p class="pcases">Wright v. Proud, <a href="#p140">140</a></p> - -<p class="pcases">Wynkoop v. Wynkoop, <a href="#p153">153</a></p> - - -<p class="pcenter">Y.</p> - -<p class="pcases">Yertore v. Wiswall, <a href="#p080">80</a></p> - -<p class="pcases">Yoe v. State, <a href="#p105">105</a></p> - -<p class="pcases">Young v. Makepeace, <a href="#p116">116</a></p> -</div><!--chapter--> - -<div class="chapter"> -<h2 class="nobreak" title="Corrigenda.">CORRIGENDA.</h2> - -<p class="corrig">Page   <a href="#p005">5</a>, line 23, <i>for</i> ousted <i>read</i> ousting.</p> -<p class="corrig">  ″    <a href="#p008">8</a>, line 3, <i>for</i> was <i>read</i> were.</p> -<p class="corrig">  ″   <a href="#p012">12</a>, line 17, <i>for</i> his <i>read</i> its.</p> -<p class="corrig">  ″   <a href="#p024">24</a>, line 19, <i>for</i> friend <i>read</i> friends.</p> -<p class="corrig">  ″   <a href="#p043">43</a>, line 18, <i>read</i> Hahnemann <i>for</i> Hahnneman.</p> -<p class="corrig">  ″   <a href="#p055">55</a>, line 6, <i>for</i> misdemeanour <i>read</i> misdemeanor.</p> -<p class="corrig">  ″   <a href="#p085">85</a>, last line but one, transpose the , and the ;.</p> -<p class="corrig">  ″   <a href="#p096">96</a>, line 7, <i>read</i> witnesses, can be excluded the</p> -<p class="corrig">  ″  <a href="#p103">103</a>, line 15, <i>for</i> Brown’s <i>read</i> Browne’s.</p> -<p class="corrig">  ″  <a href="#p105">105</a>, line 10, <i>for</i> words <i>read</i> works.</p> -<p class="corrig">  ″  <a href="#p115">115</a>, line 5, <i>for</i> opinion <i>read</i> opinions.</p> -<p class="corrig">  ″  <a href="#p119">119</a>, last line but one, <i>read</i> opinion of another etc.</p> -<p class="corrig">  ″  <a href="#p138">138</a>, line 1, <i>read</i> occupies <i>for</i> occupying.</p> -<p class="corrig">  ″  <a href="#p173">173</a>, line 12, <i>read</i> within.</p> -<p class="corrig">  ″  <a href="#p175">175</a>, line 4, <i>read</i> chemical.</p> -<p class="corrig">  ″  <a href="#p177">177</a>, last line, <i>read</i> venditor.</p> -</div><!--chapter--> - -<div class="chapter"> -<h2 class="nobreak" id="p001" -title="Chapter I. Early Practitioners and Laws."> -<span id="largerblk">THE LAW AND MEDICAL MEN.</span> -CHAPTER I. -<span class="smallerblk">EARLY PRACTITIONERS AND LAWS.</span></h2> - -<p class="first">The -first medical practitioners in England, of whom we -have any record, were the Druids: these philosophers, -theologians and soothsayers, also practised medicine and -surgery, and were skilled in anatomy and physic. To add -to the veneration in which they were held, to impress the -ignorant masses with the idea that they had power with -the gods and could prevail, and perhaps to cultivate a belief -in the efficacy of the remedies provided, they mingled -incantations and charms with their medicaments and -nostrums. Their panacea was the mistletoe, cut from the -sacred oak, with a consecrated hook of gold held in holy -hands, on a mysterious night when the propitious beams -of the waxing moon fell upon it; wrapped for a while in a -sanctified cloth and treasured up in the holy of holies of -the woodland god, this strange parasitic growth was deemed -possessed of many virtues and was named All-heal. Two -other herbs, the selago and samolus were also in those days -highly valued for their medicinal efficacy.</p></div> - -<p>To every healing herb a divinity was assigned by the -Druids, and the good gods were ever ready to help suffering -<span class="xxpn" id="p002">|2|</span> -humanity against the evil genii who presided over the -poisonous and unwholesome.</p> - -<p>These priests also considered the creeping through <i>tolmens</i> -(or perforated stones) good for many diseases. Their best -charm, however, was the anguineum, or snake’s egg, produced -(’tis said) from the saliva and frothy sweat of a -cluster of snakes writhing in a tangled mass, tossed in the -air by the fierce hissings of the serpents, and caught ere it -fell to the ground in a clean white cloth. A genuine egg, -though encased in gold, would float against a running -stream and do many another marvel. The Druid seems to -have been a herbalist, a believer in the faith or prayer cure, -as well as a homœopathist, for in taking the diseased plant, -the mistletoe, to cure diseases he anticipated the doctrine of -<i>similia similibus curantur</i>.</p> - -<p>Even in those old days, according to Tacitus, there were -female physicians who competed with the practitioners -of the other sex. The wives of the Druids exercised the -calling of sorceresses, causing considerable evil by their -witchcrafts, but caring for warriors wounded in battle. -Later on women seem to have enjoyed a pre-eminence as -physicians and surgeons in England. Thus are we told that -a “Mayd” treated a wounded “Squyre,”</p> - -<div class="poembox"><div class="stanza"> -<p class="verse0">Meekely shee bowed downe, to weete if life</p> -<p class="verse0">Yett in his frosen members did remaine;</p> -<p class="verse0">And, feeling by his pulses beating rife</p> -<p class="verse0">That the weake sowle her seat did yett retaine,</p> -<p class="verse0">Shee cast to comfort him with busy paine.</p> -</div> -<hr class="hr28" /> - -<div class="stanza"> -<p class="verse0">Into the woods thenceforth in haste shee went,</p> -<p class="verse0">To seeke for herbes that mote him remedy;</p> -<p class="verse0">For she of herbes had great intendiment.</p> -</div> - -<hr class="hr28" /> - -<div class="stanza"> -<p class="verse0">There, whether yt divine tobacco were,</p> -<p class="verse0">Or panachæa, or polygony,</p> -<p class="verse0">Shee fownd, and brought it to her patient deare,</p> -<p class="verse0">Who al this while lay bleding out his hart blood neare. <span class="xxpn" id="p003">|3|</span></p> -<p class="verse0">The soveraine weede betwixt two marbles plaine</p> -<p class="verse0">Shee pownded small, and did in peeces bruze;</p> -<p class="verse0">And then atweene her lilly handes twaine</p> -<p class="verse0">Into his wound the juice thereof did scruze;</p> -<p class="verse0">And round about, as she could well it uze,</p> -<p class="verse0">The flesh therewith she suppled, and did steepe</p> -<p class="verse0">T’abate all spasme and soke the swelling bruze;</p> -<p class="verse0">And, after having searcht the intuse deepe,</p> -<p class="verse0">She with her scarf did bind the wound from cold to - keep (<a id="fnanchor-1" href="#fn-1" class="fnanchor">1</a>).</p> -</div></div> - -<p>Of fair Nicolette we read—</p> - -<div class="poembox"><div class="stanza"> -<p class="verse34"> Her strength alone</p> -<p class="verse0">Thrust deftly back the dislocated bone;</p> -<p class="verse0">Then culling various herbs of virtue tried,</p> -<p class="verse0">While her white smock the needful bands supplied,</p> -<p class="verse0">With many a coil the limb she swathed around,</p> -<p class="verse0">And nature’s strength returned.</p> -</div></div> - -<p>Chirurgery, or surgery—that is manual application—appears -to have been the earliest branch of the healing art. -We are told of a wonderful cure effected upon Queen -Elgiva, whose beauteous face had been mutilated by the -brutal clergy. Many superstitious practices were in the -early days mingled with the operations of the surgeons, as -well as of the physicians. History speaks of a man the -muscles of whose legs were drawn up and contracted so as -to defy all the skill of the surgeons, until an angel advised -wheat flour to be boiled in milk, and the limb to be poulticed -with it while warm; then all was well.</p> - -<p>From the tenth to the twelfth century the practice of -medicine and surgery, in England, was almost exclusively -in the hands of the monks and clergy. So lucrative did -they find it that many of the monks devoted themselves -entirely to it, to the utter neglect of their religious duties. -This the authorities of the church disapproved of, and -made many attempts to restrain. At last, in 1163, it was -enacted by the Council of Tours that no clergyman or monk -should undertake any bloody operation. From that time -<span class="xxpn" id="p004">|4|</span> -the clerics confined themselves to prescribing medicines, -and the practice of surgery naturally fell into the hands of -the barbers and smiths, who had previously been employed -as assistants and dressers to the ecclesiastical operators.</p> - -<p>The smiths soon found that most of the business was -absorbed by the barbers: the latter kept little shops for -cutting hair, shaving, bathing and curing the wounded, -especially about the royal palaces and the houses of the -great: the shops were marked by a striped pole and a basin, -symbols that all the king’s subjects might know where to -apply in time of need; (the fillet around the pole indicating -the ribbon for bandaging the arm in bleeding, and the basin -the vessel to receive the blood). The barbers became so -important that in 1461 the freemen of “The Mystery of -Barbers, using the mystery or faculty of Surgery,” obtained -a charter from Edward IV., and were incorporated under the -name of “The Company of Barbers in London,” and none -were allowed to practise save those admitted by the company. -Although this charter was several times confirmed -by subsequent kings, yet side by side with the regular barber-surgeons -there grew up a body of men who practised pure -surgery, and who actually formed a company, called “The -Surgeons of London.” In 1540, by Act of Parliament, these -rival companies were united and named “The Masters, or -Governors, of the Mystery and Commonalty of the Barbers -and Surgeons of London.”</p> - -<p>The third section of this Act, after reciting that persons -using the mystery of surgery oftentimes meddled and took -into their cure and houses people infected with pestilence, -great pox, and other contagious infirmities, and also used -or exercised barbery, as washing, or shaving, or other feats -thereto belonging, “which was very perilous for infecting -the King’s liege people resorting to their shops and houses -and there being washed and shaven,” enacted “that no -<span class="xxpn" id="p005">|5|</span> -manner of person within the City of London, suburbs of -the same and one mile compass of said City of London, -after the feast of the Nativity of Our Lord God then next -coming, using barbery or shaving, or that hereafter shall -use barbery or shaving within the said city, etc., he nor they, -nor none of them, to his, her, or their use, shall occupy any -surgery, letting of blood, or any other thing belonging to -surgery, drawing of teeth only excepted; and furthermore, -in like manner, whosoever that useth the mystery or craft -of surgery within the circuit aforesaid, as long as he shall -fortune to use the said mystery or craft of surgery, shall in -nowise occupy nor exercise the feat or craft of barbery or -shaving, neither by himself, nor by one other for him, to his -or their use; and moreover, that all manner of persons using -surgery for the time being, as well freemen as foreigners, -aliens and strangers within the circuit aforesaid, before the -feast of St. Michael the Archangel, next coming, shall have -an open sign on the street side where they shall fortune to -dwell, that all the King’s liege people there passing by may -know at all times whither to resort for remedies in time of -necessity (<a id="fnanchor-2" href="#fn-2" class="fnanchor">2</a>).”</p> - -<p>In 1745 this union of barbers and surgeons was dissolved; -or, apparently, the surgeons ousting the barbers, received a -new name and all the privileges of the old company, with -the exclusive right to practise within London and for seven -miles around. In 1800 the Surgeons’ Company was called -“The Royal College of Surgeons, in London;” and this, -in 1843, was changed to that of “The Royal College of -Surgeons of England.”</p> - -<p>In Scotland, at a very early day, the chirurgeons and -barbers were united, and enjoyed many rights and privileges. -In 1505 the “craftes of Surregeury and Barbouris” were -<span class="xxpn" id="p006">|6|</span> -formed into a college or corporation, by the town council of -Edinburgh, and became one of the fourteen incorporated -trades of the city. George the Third erected this corporation -into a Royal College, and now it is known as “The -Royal College of Surgeons of Edinburgh.” In 1599, -James VI., “to avoid the inconvenience caused by -ignorant, unskilled, and unlearned persons, who, under the -colour of chirurgeons, are in the habit of abusing the people -to their pleasure, and of destroying thereby infinite numbers -of his Majesty’s subjects,” incorporated the faculty of -Physicians and Surgeons of Glasgow; and gave them jurisdiction -over the City of Glasgow and the adjoining counties. -A recent Act of Parliament has very much shorn the -privileges of this faculty (<a id="fnanchor-3" href="#fn-3" class="fnanchor">3</a>).</p> - -<p>In Ireland, the “Fraternity of Barbers and Chirurgeons -of the Guild of S. Mary Magdalene” was incorporated by -Henry II. The apothecaries belonged to this body until -1745, when, with the aid of a statute, they set up for themselves, -as “The Guild of S. Luke,” or “The worshipful -Company of Apothecaries.” In 1784 the regularly educated -surgeons of Dublin became incorporated under the name of -“The Royal College of Surgeons in Ireland.”</p> - -<p>In the twelfth century medicine seems to have been first -studied as a science in England. The Universities enacted -that none should practise physic without passing through -a certain course of study. In the fourteenth century the -degree of Doctor of Physic was by no means uncommon. -For many years physicians were greatly aided in chemistry -and medical science by the discoveries of alchemists, and -the search after the philosopher’s stone and the elixir of -life gave many useful hints to practitioners. Chaucer well -describes a “Doctour of Phisike,” in the Prologue to the -<span class="xxpn" id="p007">|7|</span> -Canterbury Tales, and gives an insight into the state of -medical knowledge in the fourteenth century.</p> - -<div class="poembox"><div class="stanza"> -<p class="verse0">——He was grounded in astronomie.</p> -<p class="verse0">He kept his patient a ful gret del</p> -<p class="verse0">In houres by his magike naturel.</p> - -<p class="verse0 padtopc">He knew the cause of every maladie,</p> -<p class="verse0">Were it of cold, or hote, or moist, or drie,</p> -<p class="verse0">And when engendred, and of what humour.</p> -<p class="verse0">He was a veray parfite practisour.</p> -<p class="verse0">The cause yknowe, and of his harm the rote,</p> -<p class="verse0">Anon he gave to the sike man his bote.</p> -<p class="verse0">Ful redy hadde he his apothecaries</p> -<p class="verse0">To send him dragges, and his lettuaries,</p> -<p class="verse0">For eche of hem made other for to winne:</p> -<p class="verse0">His frendship n' as not newe to beginne.</p> -<p class="verse0">Wel knew he the old Esculapius,</p> -<p class="verse0">And Dioscorides, and eke Rufus;</p> -<p class="verse0">Old Hippocras, Hali, and Gallien;</p> -<p class="verse0">Serapion, Rasis and Avicen;</p> -<p class="verse0">Averrois, Damascene and Constantin,</p> -<p class="verse0">Bernard, and Gatisden and Gilbertin.</p> -<p class="verse0">Of his diete mesurable was he,</p> -<p class="verse0">For it was of no superfluitee,</p> -<p class="verse0">But of gret nourishing and digestible.</p> -<p class="verse0">His studie was but litel on the Bible.</p></div> -</div> - -<p>In 1421, under Henry V., an Act was prepared, providing -that “no one shall use the mysterie of fysyk, unless he -hath studied it at some university, and is at least a bachelor -in that science. And saying, the sheriff shall inquire -whether any one practises in his county contrary to -this regulation; and if any one so practise fysyk he shall -forfeit £40 and be imprisoned: and any woman who -shall practise fysyk shall incur the same penalty.” But -this appears never to have become law.</p> - -<p>It was not, however, until the beginning of the sixteenth -century that modern British medical practice may be said -to have commenced. And in 1511 was passed the first -<span class="xxpn" id="p008">|8|</span> -statute for regulating the medical profession (<a id="fnanchor-4" href="#fn-4" class="fnanchor">4</a>). From -the preamble of this Act we learn that physic and surgery -were then practised by “ignorant persons, who could tell -no letters on the book, and by common artificers, smiths, -weavers, and women, who took upon themselves great -cures, partly using sorcery and witchcraft, partly applying -very noxious medicines to the disease.”</p> - -<p>Many years after this, however, were to be found those -who though not “ignorant persons” approved of what -would now be called sorcery, witchcraft and noxious medicines. -Bacon gives the following as infallible cures for the -whooping-cough: let a pie-bald horse breathe on the patient: -give him fried mice, three a day for three days in succession: -pass the sick person nine times under the belly and -over the back of a donkey: feed the patient on currant -cake made by a woman who did not change her name when -she was married: or, hold a toad in the mouth that it may -catch the disease. Burton, the Anatomist, says that an -amulet consisting of a spider in a nut-shell, lapped with -silk, is a cure for ague. Graham, in his “Domestic Medicine,” -prescribes spider’s webs for ague and intermittent -fevers.</p> - -<p>By the statute of Henry the profession was for the first -time divided into physicians, surgeons and apothecaries: a -division still kept up in England. It also enacts, under a -penalty, that “no physician or surgeon shall practise in -London, or within seven miles of it, without examination -by the Bishop of London, or the Dean of St. Paul’s, and -four doctors of physic; nor out of the city, or precinct, -but if he be first examined and approved by the bishop of -the diocese, or his vicar-general, calling to them such expert -persons in the same faculty as their discretion shall think -convenient.” Fancy a D.D. sitting in judgment on an -<span class="xxpn" id="p009">|9|</span> -M.D. How orthodox and regular in his attendance at -church would the latter have to be! However, 14 & 15 -Henry VIII. cap. 5, vests this power of examination in the -President and Elects of the College of Physicians of London. -This Royal College was founded in 1518 by letters patent -from the king. Power was given to it to make laws for -the government of all men of the faculty of physic in -London and within seven miles, and for the correction of -the physicians within those limits and their medicines: and -none could practise within those limits without a license. -Shortly after an Act of Parliament confirmed this patent -so that none could practise in England without the license -of the college, save graduates of Oxford and Cambridge. -Subsequently Fellows of the college were given power, -together with the warden of the Apothecaries’ Society, to -enter the houses of apothecaries in London, to examine -their wares, drugs and stuffs, and to burn and destroy those -that were defective.</p> - -<p>In 1560, by 32 Henry VIII. cap. 40, surgery was -declared a part of physic, and the practice thereof was -thrown open to all of the company or fellowship of physicians -throughout the realm. Not long afterwards the -Parliament of this reforming king seems to have changed -its mind and made a move in the direction of free-trade -in physic, and by 34 & 35 Henry VIII. cap. 8, any man -or woman was permitted to practise to a limited extent. -We fancy we can trace the influence of the sturdy king in -the provisions of this Act, which was entitled, “An Act -that persons being no common surgeons may administer -outward medicines notwithstanding the statute;” the -statute after referring to the Act passed in the third year -of the king’s reign (which imposed penalties upon those -who should practise as physicians or surgeons without -being examined and admitted) goes on to say, “Sithence -the making of which said Act (that of 3 Henry VIII.) the -<span class="xxpn" id="p010">|10|</span> -company and fellowships of surgeons of London, minding -only their own lucres, and nothing the profit or ease of the -diseased or patient, have sued, troubled and vexed divers -honest persons, as well men as women, whom God hath -endued with the knowledge of the nature, kind and operation -of certain herbs, roots and waters, and the using and -ministering of them to such as be pained with customable -diseases, as women’s breasts being sore, a pin and the web -in the eye, uncomes of hands, burnings, scaldings, sore -mouths, the stone, strangury, saucelin, and morphers, and -such other like diseases; and yet the said persons have not -taken anything for their pains or cunning, but have -ministered the same to poor people only, for neighbourhood -and God’s sake, and of pity and charity. And it is now -well-known that the surgeons admitted will do no cure to -any person, but where they shall know to be rewarded with -a greater sum or reward than the cure extendeth unto: for -in case they would minister their cunning unto sore people -unrewarded there should not so many rot and perish to -death, for lack of help of surgery, as daily do; but the -greatest part of surgeons admitted have been much more -to be blamed than those persons that they trouble.” It -further states that “although the most part of the persons -of the said craft of surgery have small cunning, yet they -will take great sums of money and do little therefor, and by -reason thereof they do oftentimes impair and hurt their -patients rather than do them good.” In consideration -whereof and for the ease and health of the king’s poor -subjects, it was enacted that it should be lawful to every -person having knowledge and experience of the nature of -herbs, etc., to practise and minister them without suit or -vexation. (Here is evidence of the existence of herb doctors, -hydropaths and lady physicians in those days.)</p> - -<p>Numerous Acts of Parliament have been passed touching -the medical profession since the days of “Bluff King Hal,” -<span class="xxpn" id="p011">|11|</span> -one under James I. to prevent popish recusants practising -physic, or using or exercising the trade or art of an apothecary; -another under William and Mary for exempting -apothecaries from serving as constables or scavengers; another -for exempting spirits and spirituous liquours used by -physicians, &c., in the preparation of medicine from duty, -and others for purposes too numerous to mention. But it -is the Medical Act of 1858, as amended by 22 Vict. cap. 21, -that now governs the practitioners.</p> - -<p>In 1681, the Royal College of Physicians of Edinburgh, -was incorporated and power was given of licensing practitioners -and of preventing others practising. In Ireland, -although the idea had been conceived many years before, -it was not until 1654 that a body called “The President -and Fraternity of Physicians” was founded; subsequently -this company was incorporated and powers given to it very -similar to those enjoyed by the London College. Under -the Medical Act, Her Majesty was empowered to change -the name of this institution (which had already enjoyed -several aliases), to that of “The Royal College of Physicians -of Ireland.”</p> - -<p>In England and Ireland a third class of medical practitioners -exists, namely, the apothecaries. Prior to the days -of Henry VIII. an apothecary seems to have been the common -name in England for a general practitioner in medicine. -About that time shops began to be established for the exclusive -sale of drugs and medicinal compounds, and those -who kept these shops often took upon them to doctor their -customers. In 1542 Henry’s parliament permitted any -irregular practitioner to administer outward medicines, and -these shopkeepers readily availed themselves of the permission -granted by the Act and pushed the sale of their drugs -and obtained larger prices on account of the advice they gave -with them, and they appropriated exclusively the title of -<span class="xxpn" id="p012">|12|</span> -apothecaries. In 1617 they were incorporated under the -name of “The Master, Wardens and Society of the Art and -Mystery of Apothecaries of the City of London.” About -the beginning of the seventeenth century they began to -prescribe as well as supply medicine; and although the -College of Physicians resisted this poaching on what they -considered their preserves, still early in the eighteenth century -the matter was settled in favor of the apothecaries, -since which time they have been legally recognised as a -branch of the medical profession (<a id="fnanchor-5" href="#fn-5" class="fnanchor">5</a>).</p> - -<p>An Act of 1815 now regulates the practice of apothecaries -throughout England and Wales, and no one can act as such -or recover any charges for his services unless he has a certificate -from the Society of Apothecaries. An apothecary is -bound to make up any prescription duly signed by a licensed -physician (<a id="fnanchor-6" href="#fn-6" class="fnanchor">6</a>). Creswell, J., considered an apothecary one -“who professes to judge of internal disease by its symptoms, -and applies himself to cure that disease by medicine.” -And Glenn says that the practice of an apothecary may now -be said to consist in attending and advising patients afflicted -with diseases requiring medical (as distinguished from surgical) -treatment; and prescribing, compounding and supplying -medicines for their cure and relief (<a id="fnanchor-7" href="#fn-7" class="fnanchor">7</a>).</p> - -<p>The invention of medicine was generally attributed by -the ancients to the gods, and both in Egypt and Greece -female divinities were intimately connected with the healing -art. Isis not only caused, but cured disease; she discovered—so -it was said—many remedies and as late as -Galen several compounds in the materia medica bore her -name. Hygeia, the daughter of Æsculapius, was deemed -<span class="xxpn" id="p013">|13|</span> -the goddess of health, and Juno presided at accouchments. -These fables show that in the remotest antiquity woman -practised medicine. The laws of Greece, at a later period, -forbad women to practise; thus, also, was it in Rome. -However, 300 years before Christ, Agnodice—a young -Athenian—dared to attend in disguise the schools of medicine -forbidden to her sex. Preserving her incognito, when -her education was finished she soon acquired a lucrative -practice; and eventually her case caused the law against -women to be revoked.</p> - -<p>In the Middle Ages, among Mohammedans, many women -were skilled in attending to the needs of their own sex; and -among the Christians, nuns as well as monks ministered to -bodies as well as souls diseased, practising both surgery -and physic. In Italy, at Salerno, women prepared drugs -and cosmetics, practised among persons of both sexes, took -doctor’s degrees, wrote treatises on medical subjects, -obtained the royal authority to engage in the art, and composed -poems in praise of their science. At the University -of Bologna, as late as 1760, Anna Morandi Manzolini filled -the chair of Anatomy; her reputation was European, and -her lecture-room was frequented by students of all countries—so -great was her skill in delicate dissections, and so -clearly did she demonstrate the wonders of the human -form divine. Dr. Maria delle Donne was professor of -medicine and obstetrics in the same college in 1799; and -many were the lady graduates of the Universities of Padua, -Pavia and Ferrara, as well as Bologna.</p> - -<p>In France, the earliest official document extant relative -to the profession (dated 1311) forbids the practice of -surgeons, or female surgeons, who have failed to pass the -required examinations; and an edict of 1352 refers to -female practitioners. In Spain, the Universities of Cordova, -Salamanca and Alcala bestowed doctor’s degrees on -<span class="xxpn" id="p014">|14|</span> -many women. In Germany, also, a number of the fair sex -successfully cultivated the science of medicine, and practised -it, in the last century and in the early part of this. -In England, as has already been seen, in early days women -practised the healing arts. Henry VIII. checked them for -a time, but in his old age, changing his mind on this, as on -almost every other subject, gave them liberty to minister -to the outward and less serious ailments of his people.</p> - -<p>Crossing the Atlantic an entry is found, under the date -of March, 1638, which tells a tale. It is this: “Jane -Hawkins, the wife of Richard Hawkins, had liberty till the -beginning of the third month, called May, and the magistrates -(if she did not depart before) to dispose of her: and -in the meantime she is not to meddle in surgery or phisick, -drinks, plaisters or oyles, nor to question matters of religion, -except with the elders for satisfaction (<a id="fnanchor-8" href="#fn-8" class="fnanchor">8</a>).” But now woman -is no longer regarded as too good or too stupid to study -medicine in America; in nearly every State in the Union -she has free access to Medical Colleges (<a id="fnanchor-9" href="#fn-9" class="fnanchor">9</a>). The Council -of the College of Physicians and Surgeons of Ontario -admit to registration and practice any person who complies -with their requirements, without regard to sex. And the -Imperial Parliament, by an Act passed in 1876, affirmed -the principle that women are entitled to become registered -practitioners of medicine.</p> - -<div class="chapter"> -<h2 class="nobreak" id="p015" -title="Chapter II. Fees."> -CHAPTER II. -<span class="smallerblk">FEES.</span></h2> - -<p>The Roman Law considered the services of an advocate -and of a physician as strictly honorific; and, as in the Roman -age, practitioners in law and medicine, were usually men of -leisure and wealthy, who did not practise for the sake of a -livelihood, remuneration for their services could not be -recovered in the ordinary way. Although owing to the -Utopian ideas concerning the honour of a liberal profession -then in vogue it was considered that any mention of a -“fee,” or a “salary,” by that name would soil and disgrace -the robe of a practitioner, still it was an established -fiction of the Civil Law that the promise of an <i>honorarium</i> -always accompanied the employment of a professional man, -and that such promise created one of those obligations that -might be enforced by action (<a id="fnanchor-10" href="#fn-10" class="fnanchor">10</a>). The Common Law of England -adopted the theory of the Civil Law as to the high -standing of the profession, but afforded no remedy for the -recovery of the charges. Surgeons and apothecaries were -enabled to recover by law remuneration for their services, -but a physician was presumed to attend his patient for an -<i>honorarium</i> (something left to the honour of the patient to -pay or not to pay), and could not maintain an action for -his fees until the passing of the Medical Act, 1858, put an -end to his anomalous position in this money-making age, -and gave him as free an entrance into the courts of law to -recover compensation for his work and labour, time and -<span class="xxpn" id="p016">|16|</span> -skill bestowed, as the worker in any other path of life. -Before this a physician could not recover even expenses out -of pocket, such as those incurred in travelling to visit a -patient, unless there had been an agreement specially made -to that effect (<a id="fnanchor-11" href="#fn-11" class="fnanchor">11</a>).</p> -</div> -<p>If a physician was a surgeon as well, and attended a case -where the advice of a physician and the aid of a surgeon -were necessary, he could recover the value of his services -as a surgeon but not as a physician (<a id="fnanchor-12" href="#fn-12" class="fnanchor">12</a>).</p> - -<p>In England the question sometimes arises, where the -practitioner is only a surgeon, whether he can charge for -attendance as a physician or as an apothecary. It has -been held that typhus fever is not a disease that belongs -to a surgeon’s branch of medicine, and that he cannot -therefore recover for his attendance on a patient suffering -under it. So, too, with regard to consumption and dropsy, -though, in the latter case, he may recover for any work -done for the patient specifically within his practise, such as -puncturation, scarification, bandaging and friction (<a id="fnanchor-13" href="#fn-13" class="fnanchor">13</a>).</p> - -<p>At one time it was considered that an apothecary was -not entitled to charges for his attendances, but only for his -medicine: then the law decided that he might charge for -either attendances or medicines, but not for both. Shortly -afterwards Tenterden held that one might recover for -attendance (the charge being reasonable), as well as for -medicine. After that full justice was done to this branch -of the profession, and it was decided that there was no -rule of law, and there certainly is none of morals, to prevent -an apothecary from making distinct charges for -<span class="xxpn" id="p017">|17|</span> -attendances and medicines; but if he charges very high -for his drugs the jury may think the attendances ought -not to be paid for as well (<a id="fnanchor-14" href="#fn-14" class="fnanchor">14</a>).</p> - -<p>In Scotland, also, at one time physicians’ fees were -regarded as honoraries, and not recoverable by action except -under a special contract (<a id="fnanchor-15" href="#fn-15" class="fnanchor">15</a>). Neither in the United States -nor in the Colonies have these distinctions been made -between the different branches of the profession, nor has -the principle been adopted that the profession of a -physician is a merely honorary one, and that his services -cannot be charged for (<a id="fnanchor-16" href="#fn-16" class="fnanchor">16</a>).</p> - -<p>In England every person registered according to the -Medical Act, 1858, and in Ontario those registered under -the Provincial Act, can practise medicine or surgery, or -medicine and surgery; and can recover in any court -of law, with full costs of suit, reasonable charges for -professional aid, advice, and visits, and the costs of any -medicine or other medical and surgical appliances rendered -or supplied to his patient; but no person is entitled -to recover any such charges in any court of law unless -he can prove upon the trial that he is so registered. -Registration has now become a part of the plaintiff’s -title to recover, which it is imperative upon him to prove. -A copy of the medical register for the time being, purporting -to be printed and published under the direction -of the General Council, is evidence in all courts that the -persons therein specified are registered according to the -provisions of the Medical Act; and the absence of the -name of any person is evidence, until the contrary be made -to appear, that such person is not so registered; and the -contrary may be shown by a certified copy, under the hand -<span class="xxpn" id="p018">|18|</span> -of the registrar, of the entry of the name of such person -on the register (<a id="fnanchor-17" href="#fn-17" class="fnanchor">17</a>). Similar rules are in force in the -various States where Medical Boards have been constituted -by legislative authorities for the purpose of examining -and licensing practitioners, such as Alabama, Delaware, -Florida, Georgia, Louisiana, Maine, Minnesota, New York, -Ohio, South Carolina and Wisconsin.</p> - -<p>Subject to the various statutory enactments, every physician -or surgeon, or any one who chooses to act as such, is entitled -to a reasonable reward for his services and for his medicines. -If there was no express promise to pay when the -services were requested, the law implies one: the broad -principle being, that when a person has bestowed his skill -and labor for the benefit of another, at his request, and -no agreement is made in respect to them, the law raises an -implied promise to pay such compensation as the person -performing the service deserved to have; and when there -is no statutory or other restraint upon the remedy, an -action lies on such promise (<a id="fnanchor-18" href="#fn-18" class="fnanchor">18</a>). The amount, unless settled -by law, is a question for the jury, and in settling that, the -eminence of the practitioner, the wealth of the patient, the -delicacy and difficulty of the operation, as well as the time -and care expended, are to be considered (<a id="fnanchor-19" href="#fn-19" class="fnanchor">19</a>).</p> - -<p>The law, as a rule, sets no limitation to fees, provided -they be reasonable. Within this rule a practitioner is -allowed discretionary powers and may charge more or less -according to his own estimate of the value of his services. -No one will pretend to assert that all services are of -equal value, and no one will claim that those who can -<span class="xxpn" id="p019">|19|</span> -render them the most skilfully should receive only the same -reward as those who can render them the least so. A -medical man of great eminence may be considered reasonably -entitled to a larger recompense than one who has not -equal practice, after it has become publicly understood -that he expects a larger fee, inasmuch as the party applying -to him must be taken to have employed him with a -knowledge of this circumstance (<a id="fnanchor-20" href="#fn-20" class="fnanchor">20</a>). But doctors must not -be unreasonable in their charges; as Lord Kenyon remarked, -“Though professional men are entitled to a fair -and liberal compensation for their assistance, there are -certain claims which they affect to set up, which if unreasonable -or improper, it is for the jury to control” (<a id="fnanchor-21" href="#fn-21" class="fnanchor">21</a>). -That a patient is a millionaire does not justify an extortionate -charge. The French rule is to consider the gravity -of the disease as well as the fortune and position of the -patient in settling the remuneration of a physician (<a id="fnanchor-22" href="#fn-22" class="fnanchor">22</a>).</p> - -<p>The existence of an epidemic does not authorise the -charging of exorbitant fees (<a id="fnanchor-23" href="#fn-23" class="fnanchor">23</a>).</p> - -<p>In some ages and countries the fees payable to medical -practitioners have been fixed by law. In Persia, for instance, -in ancient times the law said that “a physician shall treat -a priest for a pious blessing, or a spell; the master of a -house for a small draught animal; the lord of a district for -a team of four oxen; and if he cure the mistress of a house -a female ass shall be his fee.” (Vendidad Farg. VII.) To -take another instance, the medical men in attendance upon -the old princes of Wales had their fees settled; for curing -a slight wound, a surgeon received for payment the clothes -of the injured person which had been stained with blood; -<span class="xxpn" id="p020">|20|</span> -and for curing a dangerous wound he had, in addition to -the bloody clothing, board and lodging while in attendance, -and 180 pence. In Egypt, according to Herodotus, practitioners -were paid out of the public treasury, although they -might also receive fees from their patients.</p> - -<p>A medical man can also recover for the services rendered -by his assistants or students; and that even though the assistant -is unregistered (<a id="fnanchor-24" href="#fn-24" class="fnanchor">24</a>). It is not necessary that there -should be any agreed specified price, he will be allowed -what is usual and reasonable (<a id="fnanchor-25" href="#fn-25" class="fnanchor">25</a>).</p> - -<p>The right of a medical man to recover his charges for -professional services does not depend upon his effecting a -cure, or on his services being successful, unless there is a -special agreement to that effect. It does not depend upon -the fortune of the case whether it be good or bad, but upon -the skill, diligence and attention bestowed. For, as a -general rule, a physician does not guarantee the success of -his treatment; he knows that that depends upon a higher -power. Still, some good must have resulted from his -efforts. The rule appears to be that if there has been -no beneficial service there shall be no pay; but if some -benefit has been derived, though not to the extent -expected, this shall go to the amount of the plaintiff’s -demand, leaving the defendant to his action for negligence (<a id="fnanchor-26" href="#fn-26" class="fnanchor">26</a>). -The practitioner must be prepared to show -that his work was properly done, if that be disputed, in -order to prove that he is entitled to his reward (<a id="fnanchor-27" href="#fn-27" class="fnanchor">27</a>). Where -the surgical implements employed in amputating an arm -were a large butcher knife and a carpenter’s sash-saw, it -was held that the Court rightly charged the jury, that if the -<span class="xxpn" id="p021">|21|</span> -operation was of service, and the patient did well and recovered, -the surgeon was entitled to compensation, though it -was not performed with the highest degree of skill, or might -have been performed more skilfully by others (<a id="fnanchor-28" href="#fn-28" class="fnanchor">28</a>).</p> - -<p>If a surgeon has performed an operation which might -have been useful but has merely failed in the event, he is -nevertheless, entitled to charge; but, if it could not have -been useful in any event, he will have no claim on the -patient (<a id="fnanchor-29" href="#fn-29" class="fnanchor">29</a>). A medical man who has made a patient undergo -a course of treatment which plainly could be of no service, -cannot make it a subject of charge; but an apothecary who -has simply administered medicines under the direction of a -physician may recover for the same, however improper they -may have been (<a id="fnanchor-30" href="#fn-30" class="fnanchor">30</a>). If the physician has employed the ordinary -degree of skill required of one in his profession, and -has applied remedies fitted to the complaint and calculated -to do good in general, he is entitled to his fees, although -he may have failed in this particular instance, such failure -being then attributable to some vice or peculiarity in the -constitution of the patient, for which the medical man is not -responsible (<a id="fnanchor-31" href="#fn-31" class="fnanchor">31</a>).</p> - -<p>It is the duty of a physician who is attending a -patient infected with a contagious disease, when called -upon to attend others not so infected, to take all such precautionary -means experience has proved to be necessary -to prevent its communication to them. When a -physician who was told by a patient not to attend any -infected with small-pox or his services would be dispensed -with, failed to say that he was attending such a patient, and -<span class="xxpn" id="p022">|22|</span> -promised not to do so, but continued to attend, and did by -want of proper care communicate small-pox to the plaintiff -and his family, it was held that these facts were proper -evidence to go to the jury in reduction of damages in an -action for his account, and that the physician was responsible -in damages for the suffering, loss of time and damage -to which the plaintiff may have been subjected. If a physician -by communicating an infectious disease has rendered -a prolonged attendance necessary, thereby increasing his -bill, he cannot recover for such additional services necessitated -by his own want of care (<a id="fnanchor-32" href="#fn-32" class="fnanchor">32</a>). This rule will apply with -equal force to puerperal fever (<a id="fnanchor-33" href="#fn-33" class="fnanchor">33</a>).</p> - -<p>In the case of vaccination, the physician, while he does -not guarantee the specific value of the vaccine virus, yet -guarantees its freshness; so that if he inoculate a patient -with virus in an altered state, constituting as it then would -mere putrid animal matter, and erysipelas or any injury to -any limb necessitating amputation should arise, he will -undoubtedly be held responsible for the suffering, loss of -time, and permanent injury to the patient (<a id="fnanchor-34" href="#fn-34" class="fnanchor">34</a>). Long since -Lord Kenyon was of the opinion that if a surgeon was sent -for to extract a thorn, which might be pulled out with a -pair of nippers, and through his misconduct it became -necessary to amputate the limb, the surgeon could not -come into a court of justice to recover fees for the cure of -the wound which he himself had caused (<a id="fnanchor-35" href="#fn-35" class="fnanchor">35</a>).</p> - -<p>The physician when sending in his bill should be specific -in his charges and not general; he should give the number -of visits and dates. In one case a lump charge of “$13 for -medicine and attendance on one of the general’s daughters -<span class="xxpn" id="p023">|23|</span> -in curing the whooping cough,” being objected to by the -valiant officer, was held by the Court to be too loose to -sustain an action (<a id="fnanchor-36" href="#fn-36" class="fnanchor">36</a>). Where a practitioner brought an -action for a bill consisting of a great number of items, and -gave evidence as to some of them only, and the jury gave a -verdict for the whole amount of the bill, the Court refused -to interfere and grant a new trial because every item was -not proved (<a id="fnanchor-37" href="#fn-37" class="fnanchor">37</a>). Where a medical man delivered his bill -to a patient without a specific charge, leaving a blank for -his attendance, the Court inferred that he considered -his demand in the light of a “<i>quiddam honorarium</i>,” (this -was before the Medical Act), and intended to leave it to -the generosity of the patient, and the latter having paid -into court a certain amount, the Court held the surgeon -was bound by the amount so paid and could not recover -any more (<a id="fnanchor-38" href="#fn-38" class="fnanchor">38</a>). As a rule, however, if a doctor’s bill is -not paid when presented he is not limited by it to the -amount of his claim, if he can show that his services were -of greater value (<a id="fnanchor-39" href="#fn-39" class="fnanchor">39</a>). When witnesses are called to speak -as to the value of the practitioner’s services the Courts -generally incline towards the lowest estimate (<a id="fnanchor-40" href="#fn-40" class="fnanchor">40</a>).</p> - -<p>The number of visits required must depend on each particular -case, and the physician is deemed the best and -proper judge of the necessity of frequent visits; and in the -absence of proof to the contrary, the Court will presume -that all the professional visits made were deemed necessary -and were properly made (<a id="fnanchor-41" href="#fn-41" class="fnanchor">41</a>). There must not be too many -<i>consultations</i>; and the physician called in for consultation -or to perform an operation may recover his fees from the -<span class="xxpn" id="p024">|24|</span> -patient, notwithstanding that the attending practitioner -summoned him for his own benefit and had arranged with -the patient that he himself would pay (<a id="fnanchor-42" href="#fn-42" class="fnanchor">42</a>).</p> - -<p>Where a medical man has attended as a friend, he cannot -charge for his visits. This was held in one case where -it was proved that the practitioner had attended the patient -as a friend, upon the understanding that he was to have -refreshments and dinners free of charge; and in another -case, where a medical man had attended professionally, for -several years, a lady with whom he was on terms of intimacy -(but received no fees, except once, when he had prescribed -for her servant). The day before her death this lady had -written to her executors, asking them to remunerate the -doctor in a handsome manner, and moreover in her will she -gave him a legacy of £3,000 and a reversionary interest in -£6000 more. It was proved that he had attended others -without having taken fees or sent in bills. It was held -that his services had been tendered as for a friend, and -accepted as a friends, and his demand as a debt against the -assets of the lady was rejected (<a id="fnanchor-43" href="#fn-43" class="fnanchor">43</a>). One would have -thought that the physician in this latter case should have -been satisfied.</p> - -<p>Where a tariff of fees has been prepared, and agreed to -by the physicians in any locality, they are bound by it -legally as far as the public is concerned, morally as far as -they themselves are concerned (<a id="fnanchor-44" href="#fn-44" class="fnanchor">44</a>). It is no part of the -physicians business to supply the patient with drugs; if -he does so he has a right to be reimbursed therefor (<a id="fnanchor-45" href="#fn-45" class="fnanchor">45</a>). -<span class="xxpn" id="p025">|25|</span></p> - -<p>If a physician enters into a special contract to perform -a cure he will be held strictly to its terms, nor will he be -allowed to plead circumstances, which, under the general -law of professional obligation, might fairly exonerate him -from blame, for failing of success in the treatment of his -patient. To promise an absolute cure is to assume arrogantly -the possession of powers never delegated to man; -only a weak and vapid intellect will commit so egregious a -blunder. Yet, if a man choose to do it he may, and having -entered into an <i>express</i> contract he will be held liable for -its fulfilment. For it is his own fault if he undertake a -thing above his strength. If the agreement is, no cure, no -pay: he cannot even recover for medicines supplied if the -cure is not effected. At least, so it was held at Vermont. -Contracts to receive a certain sum contingent upon the -performance of a cure have always been considered as -professionally immoral, and in the civil law were repudiated -as against public policy (<a id="fnanchor-46" href="#fn-46" class="fnanchor">46</a>).</p> - -<p>The physician is always allowed discretionary powers -over the patient entrusted to his care in modes of treatment, -so as to be able to alter them according to the varying -necessities of the case. Unless such change of treatment -involves a risk of life or consequences of which he is -unwilling to assume the responsibility, he is not under -obligation to give notice or obtain permission before making -it. Particularly is this the case where the patient is not at -home or among friends or relatives, but is in some degree -in his custody and under his exclusive supervision, as well -as care. In such circumstances he is authorised to perform -operations, or change his treatment, or enforce discipline -essential to its fulfilment, without first consulting or -obtaining permission from friends or guardians at a distance, -since delay might involve a greater risk to the health -<span class="xxpn" id="p026">|26|</span> -and possibly the life of the patient than would a necessitated -operation; and of such things he alone is the -proper, as he alone can be the best, judge. He may -recover his fees for such operation or change of treatment -without proving that it was necessary or proper, -or that before he performed it he gave notice to the -party who had to pay, or that it would have been dangerous -to have waited until such notice had been given. -The burden of proving unskilfulness or carelessness in the -operation lies upon the party objecting to it (<a id="fnanchor-47" href="#fn-47" class="fnanchor">47</a>).</p> - -<p>When a medical man is called as a witness before a -court, to testify as to facts within his knowledge, he must -attend and give evidence upon payment of the same fees -as other witnesses are entitled to; unless it is otherwise -provided by statute.</p> - -<p>Where a statute provides that a medical man should be -paid a certain witness fee, he is entitled to that fee although -he be not called to give professional evidence, and it is not -necessary to prove that he is in practice (<a id="fnanchor-48" href="#fn-48" class="fnanchor">48</a>). A witness -should be paid his fees when he is subpœnaed; but even -if he attends he can refuse to give evidence until he -is paid, unless he takes the oath before making the objection (<a id="fnanchor-49" href="#fn-49" class="fnanchor">49</a>). -A subpœna should be served a reasonable time -before the trial, to enable a witness to put his affairs in -such order that his attendance on the court may be as -little detrimental as possible to his interests (<a id="fnanchor-50" href="#fn-50" class="fnanchor">50</a>).</p> - -<p>Where a medical man is summoned to attend a coroner’s -inquest, unless the statute law is clearly to the contrary, -<span class="xxpn" id="p027">|27|</span> -he is only entitled to be paid for each days attendance, not -for each body on which the inquest was held (<a id="fnanchor-51" href="#fn-51" class="fnanchor">51</a>).</p> - -<p>Under the Ontario Act, R. S. cap. 79, a coroner, if he finds -that the deceased was attended during his last illness, or at -his death, by a duly qualified medical man, may summon -that medical man to attend the inquest; if he finds that -he was not so attended, he may summons any legally -qualified neighbouring practitioner, and may direct him to -hold a post-mortem examination; but a second practitioner -will not be entitled to any fees, unless a majority of the -jury have, in writing, asked him to be called (<a id="fnanchor-52" href="#fn-52" class="fnanchor">52</a>). The -fees are, for attendance without <i>post-mortem</i> $5, if with -<i>post-mortem</i>, without an analysis of the contents of the -stomach or intestines, $10; if with such analysis, $20; -together with a mileage each way of twenty cents. If the -practitioner when duly summoned fails to attend, without -sufficient reason, he is liable to a penalty of $40 (<a id="fnanchor-53" href="#fn-53" class="fnanchor">53</a>).</p> - -<p>Is an expert witness entitled to receive greater compensation -than an ordinary witness? or can he be compelled -to give a professional opinion without being paid for it? -The States of Iowa, North Carolina and Rhode Island have -answered these questions by statutes which say such witnesses -shall be entitled to extra compensation to be fixed -by the court, in its discretion: while Indiana says experts -may be compelled to appear and testify to opinions without -payment or tender of compensation other than the <i>per diem</i> -and mileage allowed by law to other witnesses (<a id="fnanchor-54" href="#fn-54" class="fnanchor">54</a>).</p> - -<p>The subject does not appear to have been very much -considered in England. In a case, at <i>Nisi Prius</i>, Lord -<span class="xxpn" id="p028">|28|</span> -Campbell declared that an expert was not bound to attend -upon being served with a subpœna, and that he ought not -to be subpœnaed; that he could not be compelled to attend -to speak merely to matters of opinion (<a id="fnanchor-55" href="#fn-55" class="fnanchor">55</a>). And Mr. Justice -Maule, where an expert demanded additional compensation, -said there was a distinction between a witness to facts and -a witness selected by a party to give his opinion on a -subject with which he is peculiarly conversant from his -employment in life. The former is bound as a matter of -public duty to testify as to all facts within his knowledge, -the latter is under no such obligation, and the party who -selects him must pay him for his time before he will be -compelled to give evidence (<a id="fnanchor-56" href="#fn-56" class="fnanchor">56</a>).</p> - -<p>Worden, J., of the Supreme Court of Indiana, in considering -the question, in a case that came up prior to the -statute above referred to, reviewed most of the American -decisions and the opinions of the text writers, and concluded -“that physicians and surgeons, whose opinions are valuable -to them as a source of their income and livelihood, cannot -be compelled to perform service by giving such opinions in -a court of justice without payment.” The Court further -said, “It would seem, on general principles, that the knowledge -and learning of a physician should be regarded as his -property, which ought not to be extorted from him in the -form of opinions without just compensation.” “If the -professional services of a lawyer cannot be required in a -civil or criminal case without compensation, how can the -professional services of a physician be thus required? Is -not his medical knowledge his capital stock? Are his -professional services more at the mercy of the public than -the services of a lawyer? When a physician testifies as an -expert by giving his opinion, he is performing a strictly -<span class="xxpn" id="p029">|29|</span> -professional service. * * * The position of a medical -witness testifying as an expert is much more like that of a -lawyer than that of an ordinary witness testifying to facts. -The purpose of this service is not to prove facts in the -cause, but to aid the Court or Jury in arriving at a proper -conclusion from facts otherwise proved” (<a id="fnanchor-57" href="#fn-57" class="fnanchor">57</a>). In an earlier -case (in 1854), in Massachusetts, the Court said, “to -compel a person to attend because he is accomplished in a -particular science, art or profession, would subject the same -individual to be called upon in every case in which any -question in his department of knowledge is to be solved. -Thus, the most eminent physician might be compelled, -merely for the ordinary witness fees, to attend from the -remotest part of the district, and give his opinion in every -trial in which a medical question should arise. This is so -unreasonable that nothing but necessity can justify it” (<a id="fnanchor-58" href="#fn-58" class="fnanchor">58</a>).</p> - -<p>On a trial for murder the prosecution had procured -the attendance of Dr. Hammond to testify professionally, -and had agreed to give him $500 as his fee. This fee was -complained of as an irregularity, but the Court in delivering -judgment remarked, “The district attorney, it is true, -might have required the attendance of Dr. H. on subpœna, -but that would not have sufficed to qualify him as an expert -with clearness and certainty upon the questions involved. -He would have met the requirements of the subpœna if he -had appeared in court when he was required to testify and -given impromptu answers to such questions as might have -been put to him. He could not have been required, under -process of subpœna, to examine the case, and to have used -his skill and knowledge to enable him to give an opinion -upon any points of the case, nor to have attended during -the whole trial and attentively considered and carefully -<span class="xxpn" id="p030">|30|</span> -heard all the testimony given on both sides, in order to -qualify him to give a deliberate opinion upon such testimony, -as an expert, in respect to the question of the sanity -of the prisoner;” and held “that there was no irregularity -in the payment of such a fee” (<a id="fnanchor-59" href="#fn-59" class="fnanchor">59</a>).</p> - -<p>Such text writers of high repute as Taylor, Phillips, -Redfield and Ordronaux, all agree that an expert cannot be -compelled to give professional opinions without proper -remuneration. The last named writer says, “Where a -subpœna is served upon an expert he must obey it, if within -the range of physical possibility. But once on the stand -as a skilled witness his obligation to the public ceases, and -he stands in the position of any professional man consulted -in relation to a subject upon which his opinion is sought. -He cannot be compelled to bestow his skill and professional -experience gratuitously; whoever calls for an opinion from -him in chief must pay him, and the expert may decline to -answer until the party calling him has paid. When he has -given his evidence he cannot decline repeating it, or explaining -it. A similar rule will, by parity of reasoning, apply to -personal services demanded from the expert, as well as to -opinions asked” (<a id="fnanchor-60" href="#fn-60" class="fnanchor">60</a>).</p> - -<p>On the other hand, the Supreme Court of Alabama, in -1875 (<a id="fnanchor-61" href="#fn-61" class="fnanchor">61</a>), confirmed a fine imposed upon a physician for -refusing to state the nature and character of a wound -received by a man and its probable effect, upon the ground -that he had not been remunerated for his professional -opinion, nor had compensation for it been promised or -secured. And the Court of Appeals in Texas, in 1879, held, -that the court could compel a physician to testify as to the -<span class="xxpn" id="p031">|31|</span> -result of a post-mortem examination; adding, that a medical -expert could not be compelled to make a post-mortem -examination unless paid for it, but an examination having -already been made by him he could be obliged to disclose the -results thereof (<a id="fnanchor-62" href="#fn-62" class="fnanchor">62</a>).</p> - -<p>The result of the authorities seems to be that, without -the aid of a statute, an expert cannot be compelled to -bestow his skill and professional experience gratuitously -upon any party, for his skill and experience are his individual -capital and property.</p> - -<div class="chapter"> -<h2 class="nobreak" id="p032" -title="Chapter III. Who Should Pay the Doctor."> -CHAPTER III. -<span class="smallerblk"> -WHO SHOULD PAY THE DOCTOR.</span></h2> - -<p>If Smith says to Brown, a medical man, “Attend upon -Robinson, and if he does not pay you I will;” that being a -promise to answer for a debt of Robinson’s, for which he is -also liable, the guarantee is only a collateral undertaking, -and, under the Statute of Frauds, must be in writing and -signed by Smith, or some other person thereunto by him -lawfully authorised, in order to be binding upon him. But -if Smith says to Dr. Brown, absolutely and unqualifiedly, -“Attend upon Robinson, and charge your bill to me,” or -“I will pay you for your attendance upon Robinson;” then -the whole credit being given to Smith, no written agreement -is necessary to enable the doctor to recover the amount of -his account from him, since it is absolutely the debt of -Smith (<a id="fnanchor-63" href="#fn-63" class="fnanchor">63</a>).</p> -</div> -<p>Where a person calls at the office of a physician, and, he -being absent, the visitor leaves his business card with these -words written on it, “Call on Mrs. Jones, at No. 769 High -Street,” handing it to the clerk in attendance, with the request -that he would give it to the doctor and tell him to -go as soon as possible; this caller becomes liable to pay -the doctor’s bill for attendance upon Mrs. Jones in pursuance -of such message. Yet Mrs. Jones, if a widow, may -also be liable; for one who acquiesces in the employment -of a physician, and implies, by his or her conduct, that the -doctor is attending at his or her request, is responsible for -<span class="xxpn" id="p033">|33|</span> -the value of his services. If Mrs. Jones is living with her -husband, or, without her fault, away from him, the doctor -has still another string to his bow, and may recover the -amount of his bill from Mr. Jones; for the rule is, that a -husband must pay his wife’s doctor’s bills. Of course the -doctor cannot make all three pay (<a id="fnanchor-64" href="#fn-64" class="fnanchor">64</a>).</p> - -<p>Long since, Park, J., was clearly of the opinion that if a -mere stranger directed a surgeon to attend a poor man, -such person was clearly liable to pay the surgeon (<a id="fnanchor-65" href="#fn-65" class="fnanchor">65</a>). Yet, -in some cases in the United States, it has been held that -the man who merely calls the doctor is not bound to pay -him. When, for instance, in Pennsylvania, a son of full -age, when living with his father, fell sick, and the father -went for the doctor, urging him to visit his son. Afterwards -the physician sued the parent. The Court said this -was wrong, that he should have sued the son, as the father -went as a messenger only, that the son, who had the -benefit of the services, was the responsible person; and -remarked that it was clear that had the defendant been a -stranger, however urgent he may have been and whatever -opinions the physician may have formed as to his liability, he -would not have been chargeable without an express promise -to pay, as, for instance, in the case of an inn-keeper or any -other individual whose guest may receive the aid of medical -service. A different principle, the Court considered, would -be very pernicious, as but very few would be willing to -run the risk of calling in the aid of a physician where -the patient was a stranger or of doubtful ability to pay. -This was in 1835 (<a id="fnanchor-66" href="#fn-66" class="fnanchor">66</a>). And, in Vermont, one brother -took another, who was insane, to a private lunatic asylum -and asked that he (the insane one), might be taken in and -<span class="xxpn" id="p034">|34|</span> -cared for. This was done. In course of time the doctor -sued the sane one for his bill, but the Court would not aid -him in the matter, saying, “He is not liable unless he -promised to pay” (<a id="fnanchor-67" href="#fn-67" class="fnanchor">67</a>).</p> - -<p>In the case of Mr. Dodge, above referred to, the Court -said, “He might very readily have screened himself from -all liability, by simply writing the memorandum on a blank -card, or by adding to that which he wrote on his own card -something that would have apprised the doctor of the -fact that he acted in the matter for Mrs. Jones, as her -agent.”</p> - -<p>The reporter did not approve of this decision, and so -appended the following graphic note: “Let us see how this -thing works. We will take as an illustration an almost -every-day occurrence arising in the country. A. B. is taken -suddenly and seriously ill in the night time, and sends to -his neighbour, C. D. living in the next house to his, to have -him go after the doctor as soon as he can, for he is in great -pain and distress. C. D. jumps out of bed without hesitation, -and hastily dresses himself, and goes out to his barn -and takes a horse from the stable, and not waiting to put -on a saddle or bridle, jumps on to the horse with the halter -only, puts him at full speed for the doctor’s office, some -two or three miles distant. On arriving there he finds the -doctor absent from home, but his clerk is there, and C. D. -at once says, ‘Tell the doctor to call on A. B. who has been -taken suddenly sick; tell him to come as soon as possible.’ -In accordance with this message the doctor calls upon A. B., -and prescribes for and attends him professionally for -several days. After a reasonable time the doctor sends in -his bill to A. B. and it not being paid as soon as the doctor -desires, he calls on C. D. and requests him to pay the bill. -C. D. with perfect astonishment, asks why he is to pay. -<span class="xxpn" id="p035">|35|</span> -The doctor informs him that he made himself liable to pay -the bill because, when he delivered the message, he did not -tell the clerk that he came for the doctor by the request of -A. B. nor that he acted as agent of A. B. in delivering his -message. Well, says C. D. the fact was I did go at the -request of A. B. and merely acted as his agent in delivering -the message, and I will swear to these facts if necessary. -The doctor insists that it will do him no good if he should -give such testimony, for the law is settled on that point, as -just such a case has recently been decided in New York -under just such a state of facts, where the jury, in the -justice court, found a verdict for the doctor for the amount -of his bill, and, on appeal by the defendant to the general -term of the New York Common Pleas, that court unanimously -sustained the verdict of the jury, and affirmed the -judgment of the court below. Well, says C. D. ‘If that is -the law I think I will wait awhile before I go after a doctor -again as an act of neighbourly kindness.’” This case was -decided as late as March, 1873.</p> - -<p>A wife has implied authority to bind her husband for -reasonable expense incurred in obtaining medicines and -medical attendance during illness; but this implied authority -is put an end to if she commits adultery while living apart -from her husband, and there has been no subsequent condonation; -or, if she leaves her husband’s home of her own -accord and without sufficient reason, and the fact has -become notorious, or the husband has given sufficient notice -that he will no longer be responsible for any debts that she -may incur (<a id="fnanchor-68" href="#fn-68" class="fnanchor">68</a>). If a husband turn an innocent wife out -of doors without the means of obtaining necessaries, it is a -presumption of law, which cannot be rebutted by evidence, -that she was turned out with the authority of her husband -to pledge his credit for necessaries, and in such a case -<span class="xxpn" id="p036">|36|</span> -medical attendance will be considered as one of the -primary necessaries (<a id="fnanchor-69" href="#fn-69" class="fnanchor">69</a>). A married woman’s misconduct -does not exonerate the husband from paying a doctor whom -he requests to attend her (<a id="fnanchor-70" href="#fn-70" class="fnanchor">70</a>).</p> - -<p>Although the law requires the husband to furnish the -wife with all necessaries suitable to his condition in life, -including medical attendance in case of sickness, still it gives -him the right to procure these necessaries himself and to -decide from whom and from what place they are to come. -If a physician attends a wife whom he knows to be living -separate and apart from her husband, he ought to enquire -whether she has good cause for so doing; for if she has not -he cannot make the husband pay the bill; and it has been -held that it devolves upon the doctor to show that there -was sufficient cause for the wife’s separation (<a id="fnanchor-71" href="#fn-71" class="fnanchor">71</a>). The -employment of a physician by a husband to attend his sick -wife, presumably continues throughout the illness; and the -mere fact that the wife is removed, with the husband’s -consent, from his home to her father’s, will not enable him -to resist payment of the doctor’s bill for visits paid to her -at the father’s (<a id="fnanchor-72" href="#fn-72" class="fnanchor">72</a>).</p> - -<p>Notwithstanding the law’s desire not to favour any -particular school, a quack’s bill was thrown out where -the services were rendered without the husband’s assent. -This was done in a case where a doctor was in the habit of -putting a woman into a mesmeric sleep, she thereupon -became a clairvoyant and prescribed the medicines which -the doctor furnished, and for these he sued. The Judge -said:—“The law does not recognize the dreams, visions or -revelations of a woman in mesmeric sleep as necessaries for -<span class="xxpn" id="p037">|37|</span> -a wife for which the husband, without his consent, can be -made to pay. These are fancy articles which those who -have money of their own to dispose of may purchase if they -think proper, but they are not necessaries known to the law -for which the wife can pledge the credit of the absent -husband” (<a id="fnanchor-73" href="#fn-73" class="fnanchor">73</a>).</p> - -<p>In England, it was, until 1869, considered that a parent’s -duty to furnish necessaries for an infant child was a moral -and not a legal one, so that he was not liable to pay for -medicines or medical aid furnished to his child without -some proof of a contract on his part either expressed or -implied. And this still is the view where the child is over -fourteen. The rule of law varies in the different States of -the Union. In most of those in which the question has -come before the courts the legal liability of the parent for -necessaries furnished to the infant is asserted, unless they -are otherwise supplied by the father; and it is put upon the -ground that the moral obligation is a legal one, and some -of the courts have declared this quite strongly. In other -States the old English rule has been held to be law, and -agency and authority have been declared to be the only ground -of such liability. The authority of the infant to bind the -parent for medical aid supplied him will be inferred from -very slight evidence (<a id="fnanchor-74" href="#fn-74" class="fnanchor">74</a>). But a contract to pay will not be -implied when the infant has been allowed a sufficiently -reasonable sum for his expenses (<a id="fnanchor-75" href="#fn-75" class="fnanchor">75</a>). Where the services -have been rendered with the parent’s knowledge and consent, -he will generally have to pay for them. A boy left -home against his father’s will, and refused to return at his -parent’s command. Being seized with a mortal illness he did -at last come back. His father went with him to a -<span class="xxpn" id="p038">|38|</span> -physician to obtain medical advice, and the doctor afterwards -visited him professionally at his father’s house. No express -promise to pay was proved, nor had the father said he -would not pay. The Court held the father liable to pay the -doctor’s bill (<a id="fnanchor-76" href="#fn-76" class="fnanchor">76</a>). And in an English case, where a father -had several of his children living at a distance from his own -house under the protection of servants, it was held that -if an accident happened to one of the children he was liable -to pay for the medical attendance on such child, although -he might not know the surgeon called in, and although the -accident might have been received through the carelessness -of a servant (<a id="fnanchor-77" href="#fn-77" class="fnanchor">77</a>).</p> - -<p>By a recent English statute (<a id="fnanchor-78" href="#fn-78" class="fnanchor">78</a>), when any parent shall -wilfully neglect to provide adequate food, clothing, medical -aid, or lodging for his child, in his custody, under the age -of fourteen, whereby the child’s health shall have been, or -shall be likely to be, seriously injured, he shall be guilty of -an indictable offence punishable by imprisonment. Charles -Downes was the two-year-old child of a member of the -sect of Peculiar People. These people never call in medical -aid or give medicines: to do so would be contrary to their -religious opinions; but if any is sick they call in the elders -of the church, who pray over him, anointing him with oil in -the name of the Lord; then they hope for a cure, as they -have thus literally complied with the directions in the 14th -and 15th verses of the 5th chapter of the Epistle of St. James. -This child was ill for months; the usual course was pursued -by his father; no medical aid was obtained, although easily -obtainable. The illness was misunderstood, and, although -he was taken care of and well supplied with food, the child -died. The father was indicted for manslaughter, and the -<span class="xxpn" id="p039">|39|</span> -jury found that the death was caused by the neglect to -obtain medical assistance, that the father <i>bona fide</i> (though -erroneously) believed that medical aid was not required, -and that it was wrong to use it. The Judge entered a -verdict of guilty, and the Court held—under this statute—that -a positive duty was imposed upon the father to provide -adequate medical aid when necessary, whatever his conscientious -scruples might be, and that that duty having been -wilfully neglected by the prisoner, and death having ensued -from that neglect, he was properly convicted of manslaughter (<a id="fnanchor-79" href="#fn-79" class="fnanchor">79</a>).</p> - -<p>It had been held by Pigott, B., in a case against these -same Peculiar People, and also by Willis, J., that, at common -law, there was no legal duty upon a father to employ a -physician for his sick child (<a id="fnanchor-80" href="#fn-80" class="fnanchor">80</a>).</p> - -<p>It is not enough to shew neglect of reasonable means for -preserving or prolonging the child’s life, to convict of manslaughter, -it must be shewn that the neglect had the effect -of shortening life. It will not do merely to prove that -proper medical aid might have saved or prolonged life and -would have increased the chance of recovery, but that it -might have been of no avail (<a id="fnanchor-81" href="#fn-81" class="fnanchor">81</a>). In this case the father, -perhaps, might have been convicted of neglect of duty -as a parent, under the statute (per Stephen, J.).</p> - -<p>Medicines and medical aid are necessaries for which an -infant may legally contract, and for which he can render -himself liable. In Massachusetts, it was held that he would -not be liable merely because his father was poor and unable -to pay (<a id="fnanchor-82" href="#fn-82" class="fnanchor">82</a>). -<span class="xxpn" id="p040">|40|</span></p> - -<p>A master is not bound to provide medical assistance for -his servant, but the obligation, if it exists at all, must arise -from contract; nor will such a contract be implied simply -because the servant is living under the master’s roof, nor -because the illness of the servant has arisen from an accident -met with in the master’s service (<a id="fnanchor-83" href="#fn-83" class="fnanchor">83</a>). But where a -servant left in charge of her master’s children was made ill -by suckling one of the children, and called in a medical -man to attend her, with the knowledge and without the -disapprobation of her mistress, it was decided that the -doctor could make the father and master pay (<a id="fnanchor-84" href="#fn-84" class="fnanchor">84</a>). And a -master is bound to provide an apprentice with proper medicines -and medical attendance (<a id="fnanchor-85" href="#fn-85" class="fnanchor">85</a>).</p> - -<p>In England, when a pauper meets with an accident, the -parish where it occurs is usually liable for the surgeon’s -bill. If, however, the illness of the pauper arises from any -other cause than accident or sudden calamity, the parish in -which he is settled is under legal liability to supply him with -medical aid, although he may be residing in another parish. -But all these questions with regard to paupers are determined -according to the poor laws of the different countries (<a id="fnanchor-86" href="#fn-86" class="fnanchor">86</a>).</p> - -<p>It has frequently happened that when a railway passenger -or employee has been injured by a collision or -accident, and some railway official has called in a doctor, -the company has afterwards refused to pay the bill; and -the courts have declined to make them do so, unless -it be shown that the agent or servant who summoned the -medical man had authority to do so. It has been -held that neither a guard, nor the superintendent of a -station, nor the engineer of the train in which the accident -happened, had any implied authority, as incidental -<span class="xxpn" id="p041">|41|</span> -to their positions, to render their companies liable for -medical services so rendered (<a id="fnanchor-87" href="#fn-87" class="fnanchor">87</a>). The Court of Exchequer -said, “It is not to be supposed that the result of their -decision will be prejudicial to railway travellers who may -happen to be injured. It will rarely occur that the surgeon -will not have a remedy against his patient, who, if he be -rich, must at all events pay; and if poor, the sufferer will -be entitled to a compensation from the company, if they by -their servants have been guilty of a breach of duty, out of -which he will be able to pay, for the surgeon’s bill is always -allowed for in damages. There will, therefore, be little -mischief to the interests of the passengers, little to the -benevolent surgeons who give their services.” But, in -England, it has been decided that the general manager of a -railway company has, as incidental to his employment, -authority to bind his company for medical services bestowed -upon one injured on his railway. In Illinois, a similar -decision was given as to a general superintendent, although -in New York judgment was given the other way (<a id="fnanchor-88" href="#fn-88" class="fnanchor">88</a>).</p> - -<p>If an accident happen to a stage coach by which a passenger’s -leg is broken, or his human form divine is otherwise -injured, the coachman has no authority to bind his master -by a contract with a surgeon to attend to the injury; nor -if a lamp-lighter, by neglect, burn any person, has he, or -any officers of the gas company, power to bind the company -by a contract for the cure of the injured person (<a id="fnanchor-89" href="#fn-89" class="fnanchor">89</a>). If -ordinary employees had such authority, then every servant -who, by his negligence or misconduct, had caused injury to -an individual, would have an implied authority to employ, -on behalf and at the expense of his employer, any person he -thought fit to remedy the mischief.</p> - -<div class="chapter"> -<h2 class="nobreak" id="p042" -title="Chapter IV. Who May Practise."> -CHAPTER IV. <span class="smallerblk"> -WHO MAY PRACTISE.</span></h2> - -<p>The law has nothing to do with the merits of particular -systems or schools of medicine. Their relative merits may -become the subject of inquiry when the skill or ability of a -practitioner, in any given case, is to be passed upon as a -matter of fact. But the law does not and cannot supply -any positive rules for the interpretation of medical science. -It is not one of those certain or exact sciences in which -truths become established and fixed, but it is essentially progressive -in its nature. No one system of practice has been -uniformly followed, but physicians, from the days of Hippocrates, -have been divided into opposing sects and schools. -The sects of the dogmatists and the empirics divided the -ancient world for centuries until the rise of the methodics, -who in their turn gave way to innumerable sects. Theories -of practice believed to be infallible in one age have been -utterly rejected in another. For thirteen centuries Europe -yielded to the authority of Galen. He was implicitly followed, -his practice strictly pursued. Everything that -seemed to conflict with his precepts was rejected; and yet, -in the revolutions of medical opinion, the works of this -undoubtedly great man were publicly burned by Paracelsus -and his disciples; and for centuries following the medical -world was divided between the Galenists and the chemists, -until a complete ascendancy over both was obtained by the -vitalists. This state of things has been occasioned by the -circumstance that medical practitioners have often been -more given to the formation of theories upon the nature of -<span class="xxpn" id="p043">|43|</span> -disease and the mode of its treatment, than to that careful -observation and patient accumulation of facts by which, in -other sciences, the phenomena of nature have been unravelled. -* * * It is not to be overlooked that as an art -it has been characterised in a greater degree by fluctuations -of opinion as to its principles and the mode of its practice -than perhaps any other pursuit. That it has been distinguished -by the constant promulgation and explosion of -theories. That it has alternated between the advancement -of new doctrines and the revival of old ones; and that its -professors in every age have been noted for the tenacity -with which they have clung to opinions, and the unanimity -with which they have resisted the introduction of valuable -discoveries. They still continue to disagree in respect to -the treatment of diseases as old as the human race; and -at the present day * * * a radical and fundamental -difference divides the allopathists from the followers of -Hahnemann, to say nothing of those who believe in the sovereign -instrumentality. * * * The axiom that doctors -differ is as true now as ever it was (<a id="fnanchor-90" href="#fn-90" class="fnanchor">90</a>). Thus spake Daly, -J.; the reporter observes in a note: “It may, perhaps, be -safely questioned whether the sister sciences of law and -theology present any such unity or certainty of opinion as -might enable them to arraign the medical profession.”</p> -</div> - -<p>In Great Britain and Ireland, since the passing of the -Medical Act of 1858, every one registered under the -provisions of that Act is entitled, according to his qualification, -to practise medicine or surgery, or both (as the -case may be), in any part of Her Majesty’s Dominions, -and to recover on any court of law (should any patient -neglect to pay) his reasonable charges for professional aid, -advice and visits, and the costs of any medicine, or other -medical or surgical appliances rendered or supplied by -<span class="xxpn" id="p044">|44|</span> -him to his patient; but any one not so registered cannot -recover any such charges in any court of law. Proof of -registration is absolutely necessary for a recovery; but it -will suffice if the registration has taken place before the -trial (<a id="fnanchor-91" href="#fn-91" class="fnanchor">91</a>).</p> - -<p>And as to who may be registered; the Act says any one -may be who is a fellow, member, licentiate, or extra licentiate, -of the Royal College of Physicians of London, or of -the Royal College of Physicians of Edinburgh, or of the -King and Queen’s College of Ireland; or fellow, member, -or licentiate in midwifery, of the Royal College of Surgeons -of England, or fellow or licentiate of the Royal College of -Surgeons of Edinburgh, or of the Faculty of Physicians and -Surgeons of Glasgow, or of the Society of Apothecaries, -London, or of the Apothecaries Hall, Dublin; or doctor, -bachelor, or licentiate of medicine, of any university of the -United Kingdom, or licentiate in surgery of any university -in Ireland; or doctor of medicine by doctorate granted prior -to August, 1858, by the Archbishop of Canterbury; or doctor -of medicine of any foreign or colonial college, after -examination, or who satisfies the Council of Education and -Registration that there is sufficient reason for admitting -him to be registered (<a id="fnanchor-92" href="#fn-92" class="fnanchor">92</a>).</p> - -<p>In France, the medical profession is divided into two -grades; in the higher grade are all doctors of medicine of -the universities; those in the lower grade are <i>officiers de -santé</i>. In Germany, the right to practise is conferred by a -state licence granted on passing the <i>staats-examen</i>: the -degree of doctor of medicine is almost always taken at some -university after obtaining the state license. In Austria, the -<span class="xxpn" id="p045">|45|</span> -right to practise is carried by the degree of doctor of -medicine obtained from a university (<a id="fnanchor-93" href="#fn-93" class="fnanchor">93</a>).</p> - -<p>The legislature of every colony of Great Britain has full -power to make laws for the purpose of enforcing the -registration within its jurisdiction of medical practitioners, -including those registered under the Imperial Act.</p> - -<p>In Ontario, the medical profession is incorporated under -the name and style of “The College of Physicians and -Surgeons of Ontario,” and every person registered under -the provisions of the Ontario Medical Act (<a id="fnanchor-94" href="#fn-94" class="fnanchor">94</a>) is a member -of the college. There is a “Council,” in part appointed by -certain educational institutions, in part elected by practitioners. -This council fixes the curriculum of studies, -appoints examiners, and arranges the examinations of those -desirous of admission to practise; it also arranges for the -registration of those who pass the examinations, or had -certain qualifications before July, 1870. Every one who passes -the examinations and has complied with the rules and -regulations of the council, and paid his fees, is entitled to -registration, and by virtue thereof to practise medicine, -surgery and midwifery in the Province. If registration is -not granted to one he may compel it by a writ of mandamus (<a id="fnanchor-95" href="#fn-95" class="fnanchor">95</a>).</p> - -<p>Registration is essential to entitle a practitioner to recover -any charges for medical or surgical advice, or for attendance, -or for performance of any operation, or for any -medicine he may have prescribed or supplied. (This last -clause does not apply to any licensed chemist or druggist.) -And if any one unregistered, for hire, gain or hope of reward, -practises or professes to practise medicine, surgery or -midwifery, or advertises to give advice therein, he is liable -<span class="xxpn" id="p046">|46|</span> -to a fine of from $25 to $100. And any one not registered -who takes or uses any name, title, addition or description -implying or calculated to lead people to infer that -he is registered, or that he is recognized by law as a -physician, surgeon, accoucheur, or a licentiate in medicine, -surgery or midwifery, is liable to the same penalty. Any -person who wilfully or falsely pretends to be a physician, -doctor of medicine, surgeon, or general practitioner, or -assumes any title, addition or description, other than he -actually possesses and is legally entitled to, is liable to a -fine of from $10 to $50. But it is not punishable to -practise for love or charity, and any one who has the degree -of doctor of medicine may place the letters “M.D.” after -his name, even though he is not a registered practitioner, if -he do not act as such for hire or gain (<a id="fnanchor-96" href="#fn-96" class="fnanchor">96</a>).</p> - -<p>Where one partner was registered and the other was not, -and there was painted on the sign after the name of the -first “M.D., M. C. P. & S., Ont.,” and after the name of -the other only “M.D.,” it was held that the use of the simple -letters “M.D.,” in contradistinction to the full titles of the -partner on the same sign was not the use of a title “calculated -to lead people to infer registration,” and that the -unregistered partner was not guilty of an offence under the -act (<a id="fnanchor-97" href="#fn-97" class="fnanchor">97</a>).</p> - -<p>In Ontario, provision is made for the registration of -Homœopathists as well as of regular practitioners, and for -the Eclectics who were practising in the Province for six -years before 1874.</p> - -<p>A physician practising in another country, and performing -medical services for a patient then residing there, may -recover his fees in this Province notwithstanding he is not -<span class="xxpn" id="p047">|47|</span> -registered (<a id="fnanchor-98" href="#fn-98" class="fnanchor">98</a>). A medical practitioner duly registered in -England, under the Imperial Act, is entitled in Ontario to -registration upon payment of fees without examination (<a id="fnanchor-99" href="#fn-99" class="fnanchor">99</a>).</p> - -<p>In the United States, the common law doctrine, which -favours the right of every man to practise in any profession -or business in which he is competent, prevails to a great -extent; and medicine being regarded by it as an honorific -profession, no apprenticeship was required, but the practitioner -always prescribed at his peril. This was also the -doctrine of the civil law, which drew no barriers around -either law or medicine. Any one who pleased might practise -them without any previous qualification; subject always -to responsibility for injury inflicted upon others.</p> - -<p>In the absence of any statutes, therefore, limiting the -common law right to practise medicine inherent in every -person, the term physician may there be applied to any one -who publicly announces himself to be a practitioner of the -art and undertakes to treat the sick, either for or without -reward. The common law knows nothing of systems or -schools of medicine. In its eyes, Eclectic, Botanic, Physio-Medical, -Electrical, Thompsonian, Homœopath, Reformed, -Indian Doctor, Cancer Doctor, Indianopathist, Clairvoyant -Doctor and regular physician are alike. The scales of justice -are no more affected by the large doses of the allopathist -than by the infinitesimal supplies of the homœopathist. -But the law will sometimes interfere where one not pretending -to be a practising physician uses a peculiar system -in his own family. A father, during the sickness of his -children and wife, refused to provide any medical treatment, -except that applied by himself, called the Baunscheidt system, -which consists in pricking the skin of the patient in -different parts of the body with an instrument armed with -<span class="xxpn" id="p048">|48|</span> -a number of needles and operated by a spring, and then -rubbing the parts affected with an irritating oil. The wife -and three children had died within a month. The man practised -the exanthematic treatment upon them, but did not -even call in physicians who used that mode. The Superior -Court of Pennsylvania deprived this believer in the Baunscheidt -panacea of the custody of his surviving children (<a id="fnanchor-100" href="#fn-100" class="fnanchor">100</a>).</p> - -<p>Before the common law every one undertaking to treat -the sick professionally, and as the exercise of his vocation, -is legally a physician. He has the rights of one, and when -he assumes those rights the law lays upon him the heavy -burdens and responsibilities of the profession. It is, of -course, far otherwise if any statute prescribes particular -qualifications for the practice of the profession and one -undertakes to discharge its duties without such qualifications. -Then he is doubly a wrong-doer; first, as against -the statute; and, second, as against the public, who have a -right to demand in him the ordinary proficiency of his profession (<a id="fnanchor-101" href="#fn-101" class="fnanchor">101</a>).</p> - -<p>In Arkansas, California, Connecticut, Kentucky, Maryland, -Massachusetts, Michigan, Mississippi, Missouri, New -Jersey, Texas and Vermont, there appear to be no statutory -requirements regulating the practice of physicians or -surgeons. In Virginia, the practitioner only needs a -license. In Alabama, Florida, Georgia, Louisiana, Maine, -Minnesota, Ohio and Wisconsin, a practitioner must either -have a license from a medical board or society, constituted -according to the law of the respective States, or else be a -graduate of a medical college. In South Carolina and the -District of Columbia, he must be licensed by the medical -board; so, too, in Delaware. But this rule in Delaware -does not apply to those who practise exclusively the -<span class="xxpn" id="p049">|49|</span> -Thompsonian or botanic, or homœopathic systems; or practise -gratuitously or for what is willingly given them.</p> - -<p>In New York State, early in the century, it was enacted -that no one practising physic or surgery, without a license, -could collect any debts incurred by such practice, and it was -a penal offence so to practise. In 1830, the unauthorized -practice of physic or surgery was made a misdemeanor -punishable by fine or imprisonment, or both. Shortly -afterwards the offence was made penal instead of criminal, -and it was declared the provisions should not extend to any -one using or applying for the benefit of any sick person -any roots, barks, or herbs, the growth or produce of the -United States. In 1844, all laws limiting the right to -practise medicine or surgery were repealed; free trade in -physic prevailed; all examinations, certificates and licenses -were declared unnecessary; the repealing Act expressly -permitted any person to practise physic subject to punishment, -as for a misdemeanor, if he should be convicted of -gross ignorance, malpractice, or immoral conduct. However, -a change came, and, in 1874, the legislature declared that it -was “a misdemeanor for any person to practise medicine or -surgery in the State of New York, unless authorized so to -do by a license or diploma from some chartered school, -State board of medical examiners, or medical society,” or -to practise under cover of a medical diploma illegally -obtained. The penalty for the first offence is a fine of not -more than $200; for a subsequent offence a fine of from -$100 to $500, or imprisonment for not less than thirty days, -or both (<a id="fnanchor-102" href="#fn-102" class="fnanchor">102</a>). In 1880, it was further enacted that no person -shall “practise physic or surgery within the State unless he -is twenty-one years of age, and has been heretofore authorized -so to do pursuant to the laws in force at the time of -his authorization, or is hereafter authorized so to do, either -by license from the regents of the University of the State -<span class="xxpn" id="p050">|50|</span> -of New York, a diploma of an incorporated medical college -within the State, or of one without the State approved of -by some proper medical faculty within the State.” Every -physician or surgeon, except those who had been practising -ten years before 1880 (and a few others), had to register with -the clerk of the county, where he practised, his name, -residence, place of birth, together with his authority to -practise.</p> - -<p>After the repeal of the old Medical Acts, and before the -enactment of the law of 1874, the New York Court of -Common Pleas had to define who was a physician or doctor, -and it said the words simply meant, “a person who made -it his business to practise physic; and it was wholly -immaterial to what school of medicine he belonged, or -whether he belonged to any. The legal signification of the -term doctor means simply a practitioner of physic. The -system pursued is immaterial. The law has nothing to do -with the merits of particular systems.” The point came up -in considering a case where an agreement of employment -between an opera director and a vocalist provided for the -forfeiture of a month’s salary in case the latter should fail -to attend at any stated performance, except in the case of -sickness, certified to by a doctor to be appointed by the -director. The director appointed Dr. Quin, an homœopathist. -Signor Corsi, the baritone, had a bad cold and a -sore throat, but would not consult Dr. Quin, and proffered -a certificate of an allopathist of his own choosing. This -Max Maretzek would not take, and he refused to pay Corsi -his salary. The singer sued, but the Court held that the -provision was binding upon the artist, although the director -had appointed a person in the practice of what is known as -the homœopathic system of medicine. * * * The -Court considered it was error to attempt in the then present -state of medical science to recognize as a matter of law -any one system of practice, or to declare that the -<span class="xxpn" id="p051">|51|</span> -practitioner who follows a particular system is a doctor, and that -one who pursues a different method is not (<a id="fnanchor-103" href="#fn-103" class="fnanchor">103</a>).</p> - -<p>It has been held, however, that where a “regular physician” -is spoken of, an allopathic is meant (<a id="fnanchor-104" href="#fn-104" class="fnanchor">104</a>).</p> - -<p>In Iowa, the Court said, “As yet there is no particular -system of medicine established or favoured by the laws of -Iowa, and as no system is upheld none is prohibited. The -regular, the botanic, the homœopathic, the hydropathic and -other modes are alike unprohibited. Though the regular -system has been advancing as a science for centuries, aided -by research and experiment, by experience and skill, still -the law regards it with no partiality or distinguishing favour, -nor is it recognized as the exclusive standard or test by -which the other systems are to be adjudged” (<a id="fnanchor-105" href="#fn-105" class="fnanchor">105</a>).</p> - -<p>Notwithstanding the New York law of 1874, one can -undertake to effect cures by manipulation without possessing -a diploma. He may even maintain an action for the compensation -agreed upon, although not a graduate and having -no license to practise. A man professed to cure by rubbing, -kneading and pressing the body. The court considered his -system was rather one of nursing than of either medicine or -surgery, and that it could not result in any injury to the -person practised upon than that of possible financial loss (<a id="fnanchor-106" href="#fn-106" class="fnanchor">106</a>). -Yet, in Maine, where a license is required, even a “medical -clairvoyant” was held to come within the statute, and it -was decided that he could not render his professional services -without having the legal permission. In England, an -unregistered person sued to recover his charges for galvanic -operations, and for materials and electric fluid used therein. -The jury decided in favour of the galvanizer, and the court -<span class="xxpn" id="p052">|52|</span> -would not disturb the verdict, as the work was done before -the Act of 1858 came into operation, but expressed a strong -opinion that if the work had not been done when it was, it -would have been impossible to hold that the case did not -fall within the statute (<a id="fnanchor-107" href="#fn-107" class="fnanchor">107</a>).</p> - -<p>A physician must practise according to the principles of -his school. There are distinct and different schools of practice; -allopathic or old school, homœopathic, Thompsonian, -hydropathic or water cure; and if a physician of one of -those schools is called in, his treatment is to be tested by -the general doctrines of his school, not by those of other -schools. It is presumed that patient and physician both -understand this (<a id="fnanchor-108" href="#fn-108" class="fnanchor">108</a>).</p> - -<p>A person professing to follow one system of medical -treatment cannot be expected by his employer to practise -another. While the regular physician is expected to follow -the rules of the old school in the art of curing, the botanic -physician must be equally expected to adhere to his adopted -method. While on the part of every medical practitioner -the law implies an undertaking that he will use an ordinary -degree of care and skill in medical operations, and he is -unquestionably liable for gross carelessness or unskilfulness -in the management of his patients, still the person who -employs a botanic practitioner has no right to expect the -same kind of treatment or the same kind of medicine that -a regular physician would administer. The law does not -require a man to accomplish more than he undertakes, nor -in a different manner from what he professes. So, if one is -employed as a botanic physician, and performs his services -with ordinary care and skill, in accordance with the system -he professes to follow, that will be regarded as a legal defence -to a suit for malpractice. It would show a full -<span class="xxpn" id="p053">|53|</span> -compliance with his profession and undertaking, and if injury -resulted to the plaintiff he could blame no one but himself (<a id="fnanchor-109" href="#fn-109" class="fnanchor">109</a>).</p> - -<p>If a patient has not been deluded by any but himself, -and voluntarily employs in one art a man who openly -exercises another, his folly has no claim to indulgence. -The old Mahomedan case, cited by Puffendorf with -approbation, is very much to the point. A man who had a -disorder in his eyes called on a farrier for a remedy. This -worthy gave him a remedy commonly used by his quadrupedal -patients. The man lost his sight, and brought an -action against the farrier for damages; but the Judge said -that no action would lie, for, if the complainant had not -himself been an ass, he would never have employed a horse -doctor. But when a case, the converse of this, came up, the -Court remarked that, “stock and the human family are -animals with many similitudes and some variances; so that, -although it be admitted that one acquainted with the mode of -treating diseases of the human family should not be relied -on to select from the materia medica substances apt for the -treatment of stock, still we think it clear that one having a -scientific knowledge of the diseases of men must be presumed -to have so much knowledge of the diseases of a mule -as to enable him to determine whether a disease with -which the animal is afflicted be of recent or long standing. -An expert in the diseases of man is necessarily an expert -in the diseases of animals, so as to make his opinion -competent evidence upon a matter in reference to which -he will swear that his scientific knowledge has enabled him -to form an opinion.” And so a physician was allowed to -give his opinion as to whether the disease with which a -mule was afflicted was, or was not, of long standing, as he -considered himself competent so to do from his knowledge -<span class="xxpn" id="p054">|54|</span> -of the diseases to which human flesh is heir, although he -knew nothing in particular about the diseases of stock (<a id="fnanchor-110" href="#fn-110" class="fnanchor">110</a>).</p> - -<p>As one who employs a homœopathic or botanic physician -knowingly cannot object to his bill because he was not -treated in the way usual among orthodox practitioners; so, -on the other hand, if a physician of one school is employed -by one who has a <i>penchant</i> for that particular system, and -treats his patient according to a different system, he cannot -recover for his services if he fail to benefit the patient (<a id="fnanchor-111" href="#fn-111" class="fnanchor">111</a>).</p> - -<p>Proof that one practises physic is <i>prima facie</i> evidence of -his professional character; and if one holds himself out -as a physician and surgeon, and acts as such, the law will -hold him liable as such (<a id="fnanchor-112" href="#fn-112" class="fnanchor">112</a>).</p> - -<p>A physician who merely casually makes up a prescription -for a friend when meeting him upon the street, cannot be -called his medical attendant; that term means one to -whose care a sick person has been confided (<a id="fnanchor-113" href="#fn-113" class="fnanchor">113</a>).</p> - -<div class="chapter"> -<h2 class="nobreak" id="p055" -title="Chapter V. Negligence and Malpractice."> -CHAPTER V. -<span class="smallerblk">NEGLIGENCE AND MALPRACTICE.</span></h2> - -<p>Malpractice, or <i>mala praxis</i>, may be defined to be an -improper discharge of professional duties, either through -want of skill or negligence. It is now more particularly -applied to torts—when committed by a physician, surgeon, -or apothecary.</p></div> - -<p>It is a great misdemeanor and offence at common law, -whether it arise from curiosity and experiment, or from -neglect; because it breaks the trust which the party has -placed in the physician, tending directly to his destruction (<a id="fnanchor-114" href="#fn-114" class="fnanchor">114</a>). -A medical man who is guilty of gross negligence, -or evinces a gross ignorance of his profession, is criminally -responsible for the consequences. And one who, by a -culpable want of care and attention, or by the absence of a -competent degree of skill and knowledge, causes injury to a -patient, is liable to a civil action for damages; unless, -indeed, such injury be the immediate result of intervening -negligence on the part of the patient himself; or unless such -patient has by his own carelessness directly conduced to -such injury (<a id="fnanchor-115" href="#fn-115" class="fnanchor">115</a>).</p> - -<p>It is sometimes difficult to distinguish between civil and -criminal malpractice, or to say when one is criminally, and -when only civilly responsible. But it may be said generally, -that to constitute criminal liability there must be such a -<span class="xxpn" id="p056">|56|</span> -degree of complete negligence in the practice as the law -means by the word felonious (<a id="fnanchor-116" href="#fn-116" class="fnanchor">116</a>).</p> - -<p>There may be malpractice by commission, <i>i. e.</i>, from the -want of ordinary skill in the discharge of professional duties; -or malpractice by omission, <i>i. e.</i>, from negligence in the -discharge of such duties.</p> - -<p>The question, “Was there negligence?” will be answered -from the stand point of the law, not from that of medicine, -when a matter comes to be judicially investigated. The -law as applicable to other professions and occupations will -be applied to the medical or surgical case under consideration.</p> - -<p>Strictly speaking, the term <i>negligence</i> is limited in its -application to carelessness in the performance of professional -duty; <i>carelessness</i> is its proper synonyme. Duties -performed without care, caution, attention, diligence, skill, -prudence, or judgment, are negligently performed. Acts -are so designated which are performed by one heedlessly, -even when there is no purpose to omit the performance of -duty. It is <i>non-feasance</i>, not malfeasance. It is the -omitting to do, and not the ill-doing—it is the leaving -undone what one ought to have done—not the doing what -one ought not to have done—this last being a want of skill. -In its various degrees it ranges between simple accident and -actual fraud, the latter beginning where negligence ends (<a id="fnanchor-117" href="#fn-117" class="fnanchor">117</a>).</p> - -<p>Wharton, after criticising various definitions, proposes this, -“Negligence, in its civil relations, is such an inadvertent -imperfection, by a responsible human agent, in the discharge -of a legal duty, as immediately produces, in an ordinary -and natural sequence, a damage to another” (<a id="fnanchor-118" href="#fn-118" class="fnanchor">118</a>). -<span class="xxpn" id="p057">|57|</span> -Negligence, in medical practice, is a violation of the obligation -that medical men impliedly enter into when they accept -the charge of a patient; such obligation enjoins care and -caution in what they do, and in what they omit to do. A -medical man is liable as well for want of skill, as for -negligence, and an injured party may bring his action to -recover for damage resulting from ignorance and carelessness, -and recover on proving that he sustained damage from -either (<a id="fnanchor-119" href="#fn-119" class="fnanchor">119</a>).</p> - -<p>Physicians and surgeons have specified duties imposed -upon them when they undertake the charge of a patient. -Refusing to perform their part of the implied contract will -constitute negligence, and for all injury resulting therefrom -they will be held accountable. It will constitute a -tort for which the law gives damages (<a id="fnanchor-120" href="#fn-120" class="fnanchor">120</a>). Of course a -medical man, unless he be an officer of the Government, -charged with specific duties which he thereby violates, has -a legal right to decline to take charge of a particular case. -When in charge, however, he is liable for any negligence, -whether of omission or commission, which may produce -injury to his patient. <i>Voluntatis est suscipere mandatum, -necessitas est consummare</i> (<a id="fnanchor-121" href="#fn-121" class="fnanchor">121</a>).</p> - -<p>There is an implied obligation on a man holding himself -out to the community as a physician and surgeon, and -practising his profession, that he should possess the ordinary -skill requisite for reasonable success, and that he should -attend to the case with due care (<a id="fnanchor-122" href="#fn-122" class="fnanchor">122</a>). If the patient knows -of the practitioner’s want of skill, he cannot complain of -the lack of that which he knew did not exist. -<span class="xxpn" id="p058">|58|</span></p> - -<p>A surgeon does not become an actual insurer (<a id="fnanchor-123" href="#fn-123" class="fnanchor">123</a>); the -implied contract is not to cure, but to possess and employ in -the treatment of the case such reasonable skill and diligence -as are ordinarily exercised by thoroughly educated surgeons; -and in judging of the degree of skill and attention required, -regard is to be had to the time and place. The law implies -that in the treatment of all cases which they undertake -medical men will exercise reasonable and ordinary care and -diligence; they are bound always to use their best skill and -judgment in determining the nature of the malady and the -best mode of treatment, and in all respects to do their best -to secure a perfect restoration of their patients to health -and soundness. But they do not impliedly warrant the -recovery of their patients, and are not liable on account of -any failure in that respect, unless it is through some -default of their own (<a id="fnanchor-124" href="#fn-124" class="fnanchor">124</a>). Tindal, C.J., in summing up to the -jury in an action for improper treatment to a hand and -wrist, whereby the plaintiff lost the use of her hand, well -said, “Every person who enters into a learned profession -undertakes to bring to the exercise of it a reasonable degree -of care and skill. He does not undertake, if he is a surgeon, -that he will perform a cure, nor does he undertake to use -the highest possible degree of skill. There may be persons -who have higher education and greater advantages than he -has, but he undertakes to bring a fair, reasonable and -competent degree of skill.”</p> - -<p>Wharton and Stillé thus state the law: “A physician -and surgeon is only responsible for ordinary skill, etc., and -for the exercise of his best judgment in matters of doubt. -He is not accountable for a want of the highest degree of -skill (<a id="fnanchor-125" href="#fn-125" class="fnanchor">125</a>), nor for an erroneous, though honest conclusion, -<span class="xxpn" id="p059">|59|</span> -according to his best light (<a id="fnanchor-126" href="#fn-126" class="fnanchor">126</a>). The law has no allowance -for quackery. It demands qualification in the profession -practised, not extraordinary skill such as belongs to few men -of rare genius and endowment, but that degree which ordinarily -characterizes the profession. And in determining -whether the practitioner possesses ordinary skill, regard -must be had to the advanced state of the profession at the -time (<a id="fnanchor-127" href="#fn-127" class="fnanchor">127</a>).</p> - -<p>As to what is ordinary or reasonable skill or care, the -rule has sometimes been laid down thus favourably, “The -least amount of skill with which a fair proportion of the -practitioners of a given locality are endowed, is to be taken -as the criterion by which to judge the physician’s skill or -ability” (<a id="fnanchor-128" href="#fn-128" class="fnanchor">128</a>). Or, as another writer puts it, “It has been -finally determined to consider the least amount of skill -compatible with a scientific knowledge of the healing art -as sufficient to predicate the existence of ordinary skill” (<a id="fnanchor-129" href="#fn-129" class="fnanchor">129</a>). -To render a medical man liable even civilly for negligence, -or want of due care or skill, it is not enough that there has -been a less degree of skill than some other medical man -may have shown, or a less degree of care than even he -himself might have bestowed, nor is it enough that he -himself acknowledges some degree of want of care; there -must have been a want of competent and ordinary care and -skill, and to such a degree as to have led to a bad -result (<a id="fnanchor-130" href="#fn-130" class="fnanchor">130</a>).</p> - -<p>In a city there are many means of professional culture -which are inaccessible in the country. Hospitals can be -walked, libraries visited, new books and appliances bought, -<span class="xxpn" id="p060">|60|</span> -constant intercourse had with the greater lights of the -profession. What is due diligence, therefore, in the city, is not -due diligence in the country; and what is due diligence in -the country is not due diligence in the city. Hence, the -question, in each particular case, is to be determined, not by -enquiring what would be the average diligence or skill of -the profession (which would be a thing very difficult to -reach), but what would be the diligence or skill of an honest, -intelligent and responsible practitioner in the position in -which the one in question was placed (<a id="fnanchor-131" href="#fn-131" class="fnanchor">131</a>).</p> - -<p>The skill required is not an <i>absolute</i> but a <i>relative</i> qualification; -and as such, therefore, always subordinated to -whatever conventional standard of professional proficiency -we may choose to adopt. Like morals, it may vary with -times and places, or, if based upon representative intellects, -it is clear that the ideal type selected must be one to which the -majority, rather than the minority, of minds approximate (<a id="fnanchor-132" href="#fn-132" class="fnanchor">132</a>). -A physician, when called upon to manage a case, is not -required to apply the skill and care which could be applied -by the perfect ideal physician, for the reason that from the -limitation of the human intellect no perfect ideal physician -exists in practice, and, from the limitation of human -endurance, no perfect ideal physician, even if he existed, -could watch a patient unintermittingly. But a physician, -when called upon to manage a case, is bound to exercise the -skill and vigilance which good and faithful physicians, under -the circumstances in which he is placed, would exercise. If -called upon in a country town, remote from the great -centres of scientific activity, to attend to an exceptional case -which requires immediate action, he is not liable if he does -not employ those mechanisms which only a residence in -such a centre of scientific activity would enable him to -procure. On the other hand, a physician living in such a -<span class="xxpn" id="p061">|61|</span> -centre is liable for negligence, if, when called upon in such -a case, he does not use such mechanism, supposing its -application to be advisable (<a id="fnanchor-133" href="#fn-133" class="fnanchor">133</a>).</p> - -<p>A physician and surgeon is bound to possess the ordinary -skill, learning and experience of his profession generally -at the time in similar localities, and with similar opportunities -for experience (<a id="fnanchor-134" href="#fn-134" class="fnanchor">134</a>).</p> - -<p>A patient is entitled to the benefit of the increased -knowledge of the day. The physician or surgeon who -assumes to exercise the healing art is bound to be up to -the improvements of the day. The standard of ordinary -skill is on the advance; and he who would not be found -wanting must apply himself with all diligence to the most -accredited sources of knowledge (<a id="fnanchor-135" href="#fn-135" class="fnanchor">135</a>).</p> - -<p>Sex is no excuse for negligence; there is no rule of law -to the effect that less care is required of a woman than a -man. A lady physician cannot as such claim any privilege -of exemption from the care and caution required of men, -any more than a woman acting as a locomotive engineer -could be allowed to use less diligence to avoid mischief to -others than men must use. Male and female are governed -by the same rule in this respect: the rule of prudent regard -for the rights of others knows nothing of sex (<a id="fnanchor-136" href="#fn-136" class="fnanchor">136</a>). -Inasmuch as gratuitous services are more generally rendered -by young and inexperienced physicians than by those -who are well established in their business, a presumption -naturally arises that one who renders such services is not -possessed of great skill, and was not supposed to be by the -patient. This presumption may be overcome by proof to -the contrary; and the physician must be judged by the -<span class="xxpn" id="p062">|62|</span> -standard to which he led the patient to believe he had -attained; or, if he has done nothing to mislead his patient -upon this point, his responsibility will be measured by the -degree of skill which he is proved actually to possess (<a id="fnanchor-137" href="#fn-137" class="fnanchor">137</a>).</p> - -<p>It has been laid down in Maine, that physicians and -surgeons who offer themselves to the public as practitioners -impliedly promise thereby that they possess the requisite -skill and knowledge to enable them to heal such cases -as they undertake with reasonable success; and that this -rule does not require the possession of the highest, or even -the average skill, knowledge and experience, but only such -as will enable them to treat the case understandingly and -safely (<a id="fnanchor-138" href="#fn-138" class="fnanchor">138</a>).</p> - -<p>Considering how much the treatment of a case depends -upon its varying phases, which change as quickly as the -shifting hues of the heavens, it is hard for one medical -man to come forward and condemn the treatment of a -brother in the profession, and to say he would have done -this or that, when probably, had he been in a position to -judge of the case from the first, he would have done no -better (<a id="fnanchor-139" href="#fn-139" class="fnanchor">139</a>).</p> - -<p>If a physician does not bring to the treatment of an -injury or of a disease the ordinary amount of skill possessed -by those in his profession, it is immaterial how high his -standing may be; if he has skill and does not apply it he -is guilty of negligence, and if he does not have it then he -is liable for the want of it. When a case of alleged malpractice -is before the court, the questions to be considered -are: Did the defendant possess the ordinary skill of persons -acting as medical men? If he did, was he chargeable in -not applying it in the treatment of the patient? Whether -<span class="xxpn" id="p063">|63|</span> -he possessed greater skill, or had been successful in the -treatment of other patients, is wholly immaterial. Where -the point in issue is whether skill was applied in a given -case, the possession of skill without proof that it was applied -will be no defence (<a id="fnanchor-140" href="#fn-140" class="fnanchor">140</a>).</p> - -<p>The law punishes negligence no less than want of skill. -It is undoubtedly true that the physician is the best judge -of the degree of attention which any case requires. Nor is -it in the omission to make a given number of visits that -negligence resides, but whenever any important step in the -treatment of disease is neglected, or any important stage of -it overlooked, which might have been used for the benefit -of the patient, then it may be averred that the physician has -been guilty of negligence, however assiduous he may otherwise -have been at different periods of his treatment. Skill -and diligence may be considered, therefore, as indissolubly -associated, since skill judges of the measure of diligence -required and also furnishes the latter with the eyes of -observation and the hands of execution; while diligence on -her part gives cumulative power to skill, and leaves no link -wanting in the continuous train of treatment (<a id="fnanchor-141" href="#fn-141" class="fnanchor">141</a>). The -measure of skill which a physician is bound to exercise is -not affected by his refusal of the proffer of assistance from -other medical men (<a id="fnanchor-142" href="#fn-142" class="fnanchor">142</a>). The Court said that such a refusal -is no more than an implied declaration of ability to treat -the case properly. By assuming and continuing the charge -of the patient, the physician is under an obligation to exercise -a degree of skill which is neither increased or diminished -by such refusal.</p> - -<p>In considering the skill and knowledge of a practitioner -regard must be had to the school to which he professes to -<span class="xxpn" id="p064">|64|</span> -belong; and where there is no particular system established -or favoured by law, and no system is prohibited, every -physician is expected to practise according to his professed -and avowed system. A botanic physician is to be -gauged according to the botanic system, and a homœopathic -physician by the homœopathic system: so if a -botanic doctor, or a homœopathist, is sued for malpractice -he may free himself from blame by showing that his practice -was according to the rules of the school which he professed -and was known to follow, and a departure from the received -canons of his system will be taken as a want of ordinary -skill. But the jury is not to judge by determining which -school in their own view is best (<a id="fnanchor-143" href="#fn-143" class="fnanchor">143</a>).</p> - -<p>A sign or other proof that one actually practises physic -or surgery is <i>prima facie</i> evidence of his professional -character (<a id="fnanchor-144" href="#fn-144" class="fnanchor">144</a>). And when a physician’s skill is at issue he -may adduce evidence to prove the existence of such general -skill on his part, irrespective of the particular case as to -which the question arises; and he may show this by the -testimony of those in his profession who can speak from -personal knowledge of his practice (<a id="fnanchor-145" href="#fn-145" class="fnanchor">145</a>).</p> - -<p>The possession of a medical diploma is <i>prima facie</i> of -ordinary skill. But of course it must be shown that the -college from which it emanated had authority to grant -degrees in medicine (<a id="fnanchor-146" href="#fn-146" class="fnanchor">146</a>).</p> - -<p>If, in the absence of a medical man, a non-professional -person is called in to assist a person taken suddenly sick, -such amateur is not liable for special or slight negligence, -<span class="xxpn" id="p065">|65|</span> -that is for the lack of that diligence and skill belonging to a -professed physician; but he is liable for gross negligence -(the <i>culpa lata</i> of the Latinists), that is, the lack of the diligence -and skill belonging to ordinary unprofessional persons -of common sense; while, as we have seen, the physician is -liable for slight negligence (<i>culpa levis</i>), if he either undertakes -the case without the ordinary qualifications of a -physician under such circumstances, or manages it without -the ordinary skill of such a physician (<a id="fnanchor-147" href="#fn-147" class="fnanchor">147</a>).</p> - -<p>If a physician treats a patient without being requested so -to do, he is held to a more strict account than in ordinary -cases. In one instance, a medical man administered -physic to a slave without the owner’s consent, and the court -held him responsible for all the evil consequences which -resulted (<a id="fnanchor-148" href="#fn-148" class="fnanchor">148</a>); and this rule is still more rigidly enforced when -the volunteer by his officiousness excludes a competent -practitioner who would have been otherwise obtainable. If -one who is not a regular medical practitioner professes to -deal with the life and health of others, he is bound to have -and employ competent skill (<a id="fnanchor-149" href="#fn-149" class="fnanchor">149</a>).</p> - -<p>The mere fact that he renders his services gratuitously, -or out of charity, does not free the practitioner from all liability. -But, according to some authorities, the attendant -in such cases is held to a less strict accountability than -when his services are based upon an implied contract, and -is liable only for gross negligence (<a id="fnanchor-150" href="#fn-150" class="fnanchor">150</a>). Amos, in his “Science -of Law,” says, “The less the payment made in return for -diligence, the less the diligence that is expected; and if no -payment at all is made, as little diligence as possible is -<span class="xxpn" id="p066">|66|</span> -usually expected, though it may be that some is.” Wharton -cannot accept this doctrine from humane and other considerations (<a id="fnanchor-151" href="#fn-151" class="fnanchor">151</a>). -And Ordronaux says that it may be considered -as a received principle of law that, a physician, though -rendering his services gratuitously, as in hospitals or -among the out-door poor, is bound to exhibit the same -degree of ordinary skill and diligence in the treatment of a -patient as if he were acting under the incentive of a consideration -or prospective reward. If he undertakes to -execute the trust reposed in him, he is bound to do it well, -or else he may be compelled to respond in damages to the -party injured by his misfeasance. It is not the consideration -which constitutes the foundation of his responsibility, -but the fact that in voluntarily accepting the mandate, -<i>spondet peritiam artis</i>, indiscriminately to all. He cannot -apportion medical skill or his diligence to meet the prospective -emoluments flowing out of any given case (<a id="fnanchor-152" href="#fn-152" class="fnanchor">152</a>).</p> - -<p>In a criminal case, Denman, J., told the jury that it -made no difference whether a medical man was dealing -with a patient or acting as a volunteer, and dealing with a -friend or with his own wife (<a id="fnanchor-153" href="#fn-153" class="fnanchor">153</a>). But Cockburn, C.J., in a case -where a patient in a hospital sued two surgeons for injury -received from being scalded in a bath, in which he had -been placed by the nurses on the orders of the surgeons, -said, no doubt persons who went as patients into hospitals -were not to be treated with negligence; but, on the other -hand, medical gentlemen who gave their services gratuitously -were not to be made liable for negligence for which -they were not personally responsible. The jury gave a -verdict in favour of the doctors (<a id="fnanchor-154" href="#fn-154" class="fnanchor">154</a>).</p> - -<p>If a sick man applies to one, not a physician, for -<span class="xxpn" id="p067">|67|</span> -gratuitous medical assistance, and this one either does not exert all -his skill, or administers improper medicine to the best of -his ability, he is not liable for damage (<a id="fnanchor-155" href="#fn-155" class="fnanchor">155</a>).</p> - -<p>The amount of prudence which a man must exercise in -selecting a physician, and the means to be cured, is the -same that any prudent and reasonable man would do in -any other matter (<a id="fnanchor-156" href="#fn-156" class="fnanchor">156</a>).</p> - -<p>It is the duty of a patient to co-operate with his medical -adviser, and to conform to the necessary prescriptions; -and if, under the pressure of pain, he does not, or, if by -refusing to adopt the remedies of the physician, he frustrates -the latter’s endeavours, or, if he aggravates the case -by his own misconduct, he cannot charge against the -physician the consequences due distinctively to himself; -for no one can take advantage of his own wrong. In such -a case, even if the physician’s treatment was objectionable, -he can only recover nominal damages; and if the injury -was due to the patient’s fractiousness and disregard of the -doctor’s orders (the latter being judicious), no action at all -will lie (<a id="fnanchor-157" href="#fn-157" class="fnanchor">157</a>).</p> - -<p>In Ohio, it was held that, in an action for malpractice in -the treatment of a swollen ankle and diseased foot, the -Judge had not erred in saying to the jury, “If you find -that the defendant directed the plaintiff to observe absolute -rest as a part of the treatment to his foot, and that direction -was such as a surgeon or physician of ordinary skill -would adopt or sanction, and the patient negligently failed -to observe such direction, or purposely disobeyed the same, -and that such negligence or disobedience approximately -<span class="xxpn" id="p068">|68|</span> -contributed to the injury of which he complains, he cannot -recover in this action; although he may prove that the -defendant’s negligence and want of skill also contributed to -the injury. The injured party must not have contributed -at all.” The information given by a surgeon to his patient -concerning the nature of his malady is a circumstance that -should be considered in determining whether the patient, -in disobeying the instructions of the surgeon, was guilty of -negligence or not (<a id="fnanchor-158" href="#fn-158" class="fnanchor">158</a>).</p> - -<p>The general doctrine of contributory negligence is this, -that although there may have been negligence on the -part of the plaintiff, yet, unless he might, by the exercise of -ordinary care, have avoided the consequence of the defendant’s -negligence, he is entitled to recover; if, by ordinary -care, he might have avoided it, then he is the author of his -own wrong (<a id="fnanchor-159" href="#fn-159" class="fnanchor">159</a>). The rule is laid down in another case as -follows: If it be impossible to separate the injury occasioned -by the plaintiff from that occasioned by the neglect -of the defendant, the plaintiff cannot recover; if, however, -they can be separated, for such injury as the plaintiff may -show thus preceded solely from the want of ordinary skill or -ordinary care of the defendant, he may recover (<a id="fnanchor-160" href="#fn-160" class="fnanchor">160</a>).</p> - -<p>The patient must exercise ordinary care and prudence; -he is not bound to observe the utmost possible caution. -And the ordinary care required has been defined to be that -degree of care which persons of ordinary care and prudence -are accustomed to use and employ under similar circumstances (<a id="fnanchor-161" href="#fn-161" class="fnanchor">161</a>). -In fact the plaintiff must use his own -senses (<a id="fnanchor-162" href="#fn-162" class="fnanchor">162</a>). Still, if he is rash and negligent, and yet the -<span class="xxpn" id="p069">|69|</span> -physician has been so very neglectful that ordinary care on -the part of the patient would not have prevented the unfortunate -result, the plaintiff will be entitled to recover -damages (<a id="fnanchor-163" href="#fn-163" class="fnanchor">163</a>). So, where the doctor’s negligence is the -proximate cause of the injury, and that of the patient only -the remote cause (<a id="fnanchor-164" href="#fn-164" class="fnanchor">164</a>). And proximate does not mean the -first or nearest in order of time, but the first or nearest in -order of cause (<a id="fnanchor-165" href="#fn-165" class="fnanchor">165</a>).</p> - -<p>It is to be remembered that a physician may be called -to prescribe for cases which originated in the carelessness -of the patient; and though such carelessness would remotely -contribute to the injury sued for, it would not relieve the -physician from liability for his distinct negligence and the -separate injury occasioned thereby. The patient may also, -while he is under treatment, injure himself by his own carelessness; -yet he may recover of the physician, if he carelessly -or unskilfully treats him afterwards, and thus does him a -distinct injury (<a id="fnanchor-166" href="#fn-166" class="fnanchor">166</a>). The burden of proving that the plaintiff’s -own negligence contributed to the injury rests upon -the defendant (<a id="fnanchor-167" href="#fn-167" class="fnanchor">167</a>). Evidence that the patient requested the -defendant to perform an operation, or do an act, which -caused the injury, does not tend to prove contributory -negligence, if the injury was not the natural result of such -act carefully performed (<a id="fnanchor-168" href="#fn-168" class="fnanchor">168</a>).</p> - -<p>If the patient is insane, and so incapable of co-operating -with the physician, contributory negligence is not imputable. -And this inability the physician is bound to take -into account (<a id="fnanchor-169" href="#fn-169" class="fnanchor">169</a>). -<span class="xxpn" id="p070">|70|</span></p> - -<p>If the physician has injured the patient by his negligence, -the refusal of the patient, or his custodian, to allow an experiment, -by another physician, to repair the injury is not -contributory negligence, unless he had reasonable assurance -of the success of the experiment (<a id="fnanchor-170" href="#fn-170" class="fnanchor">170</a>).</p> - -<p>The practitioner is liable where a patient suffers from his -want of ordinary skill and diligence, even though the carelessness -of those nursing the patient may have aggravated -the case and rendered the ultimate condition of the patient -worse than it otherwise would have been. Although this -carelessness in nursing may be proved in mitigation of the -damages sought against the physician, it will not serve to -bar the right of action (<a id="fnanchor-171" href="#fn-171" class="fnanchor">171</a>). And where two surgeons, who -gave their services gratuitously to the sick in a hospital, -were sued by one Perionowsky, for maltreatment there by -causing him to be placed in a bath so hot that he was -scalded and injured, and it was proved that the bath, -though ordered by the defendants, was actually administered -by the nurses, and that the defendants were not -present when it was given, and that it was no part of their -duty personally to superintend such things. Cockburn, -C.J., in summing up, told the jury that the surgeons would -not be liable for the neglect of the nurses unless near -enough to be aware of it and to prevent it (<a id="fnanchor-172" href="#fn-172" class="fnanchor">172</a>). And, in -another case, the court held that if a jury were to find that -the parents of the patient (a boy) were in charge of and -nursed him during his sickness, and that they did not obey -the directions of the physician in regard to the treatment -and care of their son during such time, but disregarded the -same, and thereby contributed to the several injuries of -which he complains, he could not recover. If the injuries were -<span class="xxpn" id="p071">|71|</span> -the result of mutual and concurring neglect of the parties -no action to recover damages therefor will lie (<a id="fnanchor-173" href="#fn-173" class="fnanchor">173</a>).</p> - -<p>The medical man has ofttimes to sail between Scylla and -Charybdis. While, on the one hand, he is bound to consult -the attainable literature in his profession, and to diligently -gather in, for every case he undertakes to treat, the -experience of his confreres—for in determining what is negligence, -the improvements that are constantly taking place -are always considered—at the same time he must not try -new modes or methods too readily, lest a Judge say of him, -as one said in a surgery case, “It appears from the evidence -of the surgeons that it was improper to disunite the -callus without consent. This is the usage and law of surgeons. -Then it was ignorance and unskilfulness, in that -very particular, to do contrary to the rule of the profession -what no surgeon ought to have done. For anything that -appears to the court, this was the first experiment made with -this new instrument; and, if it was, it was a rash action, -and he who acts rashly acts ignorantly; and although the -defendants (a surgeon and an apothecary), in general, may -be as skilful in their respective professions as any two gentlemen -in England, yet the court cannot help saying that, in -this particular case, they acted ignorantly and unskilfully, -contrary to the known rule and usage of surgeons;” (and -they had to pay the plaintiff £500 for the damage to his -leg) (<a id="fnanchor-174" href="#fn-174" class="fnanchor">174</a>). Success is the only thing that justifies an innovation -either in politics or physic.</p> - -<p>When it is proved that the physician has omitted altogether -the established mode of treatment, and has adopted -one that has proved to be injurious, evidence of skill, or of -reputation for skill, is wholly immaterial, except to show -(what the law presumes) that he possesses the ordinary -<span class="xxpn" id="p072">|72|</span> -degree of skill of persons engaged in the same profession. -In such a case, it is of no consequence how much skill he -may have; he has demonstrated a want of it in the treatment -of the particular case.</p> - -<p>The failure to use skill, if the surgeon has it, may be -negligence; but when the treatment adopted is not in -accordance with the established practice, but is positively -injurious, the case is not one of negligence, but of want of -skill. If the case is a new one, the patient must trust to -the skill and experience of the surgeon he calls. So must -he if the injury or disease is attended with injury to other -parts, or other diseases have developed themselves, for -which there is no established mode of treatment. But -when the case is one as to which a system of treatment -has been followed for a long time, there should be no -departure from it, unless the surgeon who does it is prepared -to take the risk of establishing by his success the -propriety and safety of his experiment. This rule -protects the community against reckless experiments, while -it admits the adoption of new remedies and modes of treatment -only when their benefits have been demonstrated, -or where, from the necessity of the case, the surgeon or -physician must be left to the exercise of his own skill and -experience (<a id="fnanchor-175" href="#fn-175" class="fnanchor">175</a>).</p> - -<p>Physicians are not bound to comply with the demands -of the public; they may accept or refuse a call: but having -accepted, one must continue in attendance upon the case -until recovery, unless dismissed, or unless he has withdrawn -in a proper way. Even if his services are gratuitous, he -must continue them until reasonable time has been given to -procure other attendance.</p> - -<p>A husband sued a medical man for neglecting to attend -<span class="xxpn" id="p073">|73|</span> -his wife, according to agreement, during childbirth, and -the jury gave him a verdict of $500; the court considered -that the physician had broken his contract and was liable -therefor, but reduced the damages to a nominal sum, as, in -an action on contract, the husband could not recover for the -personal injury and sufferings of the wife (<a id="fnanchor-176" href="#fn-176" class="fnanchor">176</a>).</p> - -<p>If a physician at any time desires to withdraw from a -case, he must give such reasonable notice as will enable the -patient to obtain assistance elsewhere. He has a right to -withdraw at any time, especially with his patient’s consent, -but if he insists upon that assent as a shield from liability -for any negligence of which he may have been guilty, -or for any malpractice committed, the patient may show, if -he can, that the consent was obtained by representations -that were false; and then the consent will be no protection -against liability for damage that had occurred before the -consent was given (<a id="fnanchor-177" href="#fn-177" class="fnanchor">177</a>).</p> - -<p>While it is quite competent for a physician and his -patient to make any agreement they think fit, limiting the -attendance to a longer or shorter period, or to a single -visit; and while, if there is no such limitation, the physician -can discontinue his attendance at his own pleasure, after -giving reasonable notice of his intention to do so; yet, if he -is sent for at the time of an injury by one whose family -physician he has been for years, the effect of his responding -to the call will be an engagement to attend upon the case -so long as it requires attention, unless he gives notice to the -contrary, or is discharged by the patient; and he is bound -to use ordinary care and skill, not only in his attendance -but in determining when it may be safely and properly -discontinued (<a id="fnanchor-178" href="#fn-178" class="fnanchor">178</a>). Ordronaux says a physician cannot -<span class="xxpn" id="p074">|74|</span> -abandon a case without due notice. To do so would constitute -negligence of a grave character, and render him -answerable for all injury sustained by the patient in consequence -thereof. The contract is for the performance of -a service of indefinite duration, and usually without stipulation -for its continuance during any particular period. It -is plainly a fraud upon the employer to abandon or neglect -discharging the trust after having accepted it, for the -acceptance constitutes a promise, and a promise is a good -foundation upon which to rest a legal obligation. If the -physician retires from it, he can only do so by placing the -employer in as good circumstances as he found him, and -by giving due notice of his intention (<a id="fnanchor-179" href="#fn-179" class="fnanchor">179</a>).</p> - -<p>A medical man is liable to a civil action for injury resulting -to a patient from his negligence or unskilful treatment, -although the patient neither employed nor was to pay him. -As Baron Parke said: “If an apothecary administers improper -medicines to his patient, or a surgeon unskilfully -treats him, and thereby injures his health, he will be liable -to the patient, even where the father or friend of the patient -may have been the contracting party with the apothecary -or surgeon; for, though no such contract had been made, -the apothecary, if he gave improper medicines, or the -surgeon, if he took him as a patient and unskilfully treated -him, would be liable to an action for a misfeasance” (<a id="fnanchor-180" href="#fn-180" class="fnanchor">180</a>). -And as Richards, C.B., said: “From the necessity of -the thing, the only person who can properly sustain an -action for damages for an injury done to the person of a -patient, is the patient himself, for damages could not be -given on that account to any other person, although the -surgeon may have been retained and employed by him to -undertake the case” (<a id="fnanchor-181" href="#fn-181" class="fnanchor">181</a>); and in this same case, which was an -<span class="xxpn" id="p075">|75|</span> -action brought by a husband and a wife for an injury done -to the wife, Garrow, B., said; “In the practice of surgery, -the public are exposed to great risks from the number of -ignorant persons professing a knowledge of the art, without -the least pretensions to the most necessary qualifications, -and they often inflict very serious injury on those who are -so unfortunate as to fall into their hands. In cases of the -most brutal inattention and neglect, the patients would be -precluded frequently from seeking damages by course of -law, if it were necessary to enable them to recover, that -there should have been a previous retainer, on their part, -of the person professing to be able to cure them. In all -cases of surgeons retained by any public establishments, it -would happen that the patient would be without redress, -for it could hardly be expected that the governors of an -infirmary should bring an action against the surgeon employed -by them to attend the child of poor parents, who -may have suffered from his negligence and inattention” (<a id="fnanchor-182" href="#fn-182" class="fnanchor">182</a>).</p> - -<p>As in the case of an attorney, so with a physician, it is -not every mistake or misapprehension that will make him -liable to an action for negligence. There is scarcely a case -in which a physician is called in, in which he may not be -charged with <i>culpa levissima</i>, or the omission to ward off -every possible casualty; and if <i>culpa levissima</i> makes him -liable, then his liability becomes almost co-extensive with -his practice. He is only responsible for <i>culpa levis</i> (<a id="fnanchor-183" href="#fn-183" class="fnanchor">183</a>).</p> - -<p>It must be remembered that the implied liability of a physician -or surgeon, retained to treat a case professionally, -extends no further, in the absence of a special agreement, -than that he will indemnify his patient against any injurious -consequences resulting from his want of the proper -degree of skill, care or diligence, in the execution of his -<span class="xxpn" id="p076">|76|</span> -employment; and in an action against the surgeon for -malpractice, the plaintiff, if he shows no injury resulting -from negligence or want of skill in the defendant, will not -be entitled to recover even nominal damages (<a id="fnanchor-184" href="#fn-184" class="fnanchor">184</a>).</p> - -<p>The question whether the physician possessed adequate -skill, and exercised adequate care, is, in a case of malpractice, -for the jury to decide. Theoretically, and we may -add, literally, the jury have the unquestioned right to -decide every controverted fact, even if its decision may -involve the most abstrusively difficult and uncertain questions -in the regions of scientific enquiry. But it is for -the Judge to determine whether there is or not such -evidence as ought reasonably to satisfy the jury that the -fact sought to be proved is established. As Lord Cairns -once put it, “The Judge has to say whether any facts have -been established by evidence from which negligence <i>may be -reasonably inferred</i>, the jury have to say whether from -these facts, when submitted to them, <i>negligence ought to be -inferred</i>.” It is for the Judge to say whether the case -should or should not be submitted to the jury; and the rule -is imperative that it should not be, unless the evidence be -such that therefrom the negligence charged may be reasonably -inferred (<a id="fnanchor-185" href="#fn-185" class="fnanchor">185</a>).</p> - -<p>Judges are generally desirous of impressing on juries -the necessity of construing everything in the most favourable -way for the defendant, when such actions are brought -against a surgeon. “It is notorious there are many cases -in which jurors are not the most dispassionate or most -competent persons to try the rights of parties, and an -action of this kind (<i>i. e.</i>, against a surgeon for malpractice) -comes within this class. In such actions the Judge should -<span class="xxpn" id="p077">|77|</span> -firmly assume the responsibility of determining himself -whether sufficient evidence has or has not been given to -compel him to leave the case to the jury” (<a id="fnanchor-186" href="#fn-186" class="fnanchor">186</a>).</p> - -<p>Medical writers speak strongly against such actions. One -says, “In the majority of cases these actions are the direct -offspring of envy, hatred, malice and all uncharitableness, -and when, rocked in the cradle of calumny and nursed by -the hand of speculation, injury is often inflicted upon the -character of the physician, who is at the same time left -without any proper remedy at law. The effect, also, of such -suits upon the public mind is apt to be pernicious, for success -in obtaining damages often stimulates others into a -repetition of the experiment, and the physician consequently -practises his art in chains, being perpetually exposed to the -risk of a suit, which may ruin his reputation as well as his -fortune. It becomes lawyers, therefore, to consider, when -called upon to institute such suits, that little value can be -placed on the <i>ipse dixit</i> of a layman sitting as critic upon -the professional conduct of a physician. And that, aside -from such personal delinquencies as drunkenness, or gross -negligence, cruelty towards, or abandonment of his patient, -the field in which the physician discharges his professional -duties is practically <i>terra incognita</i> to the unlearned, and -one where no lay critic can follow him” (<a id="fnanchor-187" href="#fn-187" class="fnanchor">187</a>).</p> - -<p>The same critic points out that the majority of suits for -malpractice have been brought against surgeons and not -against physicians. “Failure is rarely excused in a surgeon. -He is expected to be an adroit medical carpenter -who, with knife and saw and splint, can so re-construct the -fractured or disjointed members of the human body as to -leave no mark or line as evidence of their previous -<span class="xxpn" id="p078">|78|</span> -disruption. On the other hand, the physician, enshrined within -the penetralia of his mystic art, and mounted upon a Delphic -tripod, inaccessible to vulgar criticism, pronounces his -diagnosis and formulizes his prescriptions with unquestioned -judgment. His diagnosis may be faulty, his medicines -ill-selected, or ill-timed in their administration, and -still no blame be incurred by him for any evil consequences -that may ensue. For who will presume to say, in case of -the patient’s death, that he had not naturally reached that -last illness foreordained to all men, and of which the physician’s -unsuccessful treatment is only official testimony? -Who knows, in fact, when a man has reached his last illness -until he dies? * * * And, as a corollary to this, -strange as it may seem, one might, through unskilfulness, -sacrifice a human life with more impunity than he could -mutilate or deform a toe or a finger” (<a id="fnanchor-188" href="#fn-188" class="fnanchor">188</a>).</p> - -<p>The question of the amount of damages for personal -injuries arising from malpractice is one resting a good deal -in the discretion of the jury, and must of necessity be more -or less uncertain. The party must recover all his damages, -present and prospective, in one action. If the damages -are so excessive as to strike all mankind, at first blush, as -beyond all measure unreasonable and outrageous, and such -as manifestly show the jury to have been actuated by -passion, partiality, corruption, or prejudice, the court will -grant a new trial. Sometimes, however, courts have granted -new trials for excessive damages where the excessiveness -has fallen short of this.</p> - -<p>In considering what should be taken into account by a -jury estimating the amount of damages to be awarded, the -American courts have held, that the loss of time caused by -the injury is to be considered (<a id="fnanchor-189" href="#fn-189" class="fnanchor">189</a>). Also, the age and -<span class="xxpn" id="p079">|79|</span> -situation in life of the injured one, the expenses incurred, -the permanent effect upon the plaintiff’s capacity to pursue -his professional calling, or to support himself as beforetimes, -are essential factors (<a id="fnanchor-190" href="#fn-190" class="fnanchor">190</a>).</p> - -<p>Bodily pain, too, is to be considered and compensated for; -and so much of mental suffering as may be indivisibly connected -with it; but mental anguish and agony cannot be -measured by money—the courts consider—and there is no -established rule authoritatively commanding such a futile -effort (<a id="fnanchor-191" href="#fn-191" class="fnanchor">191</a>). In fact, the courts say, that one should get -compensation for all the injuries that are the legal, direct, -and necessary results of the malpractice (<a id="fnanchor-192" href="#fn-192" class="fnanchor">192</a>).</p> - -<p>The late case of <i>Phillips</i> v. <i>The South Western Railway -Company</i> fully enunciates what, in the estimation of the -English Judges, are to be considered in fixing the damages. -Cockburn, C.J., said, that the heads of damages were the -bodily injuries sustained, the pain undergone, the effect on -the health of the sufferer, according to its degree and its -probable duration as likely to be temporary or permanent, -the expenses incidental to attempts to effect a cure, and -the pecuniary loss sustained through inability to attend to -a profession or business (<a id="fnanchor-193" href="#fn-193" class="fnanchor">193</a>). In the Court of Appeal, -Bramwell, L.J., remarked, “You must give the plaintiff -a compensation for his pecuniary loss, you must give him -compensation for his pain and bodily suffering. Of course, -it is almost impossible to give an injured man what can be -strictly called compensation, but you must take a reasonable -view of the case, and must consider, under all the -circumstances, what is a fair amount to be awarded to -<span class="xxpn" id="p080">|80|</span> -him” (<a id="fnanchor-194" href="#fn-194" class="fnanchor">194</a>). Phillips, who was a physician of middle age and -robust health, making £5,000 a year, was so injured by a -railway company, that he was totally unable to attend to -his business; his life was a burden and a source of utmost -pain, and the probability was that he would never recover. -The jury gave him £16,000, and the court refused to consider -it excessive.</p> - -<p>A physician, who has received personal injuries, may -recover damages for loss of business as a physician, although -he has not such a degree as would entitle him to maintain -an action for professional services (<a id="fnanchor-195" href="#fn-195" class="fnanchor">195</a>). The value of the -fees which he would have received without suit may be -estimated.</p> - -<p>An action cannot be maintained against the representatives -of a deceased surgeon to recover damages arising from -the unskilful treatment of a patient. Such actions do not -survive (<a id="fnanchor-196" href="#fn-196" class="fnanchor">196</a>).</p> - -<p>A medical practitioner who causes the death of a patient -by such malpractice or negligence as would have entitled -the patient (if death had not ensued) to maintain an action -and recover damages against him in respect of the injury -sustained thereby, is liable to an action for damages, notwithstanding -the death of the patient, and although the -circumstances under which the death was caused amount -to felony. Such action may be brought for the benefit of -the wife, husband, parent and child of the deceased, and -the jury may give such damages as they may think proportioned -to the injury resulting from such death to the -parties respectively for whom and for whose benefit such -<span class="xxpn" id="p081">|81|</span> -action is brought; but such injury must be a pecuniary -loss, and the jury may not give damages as a <i>solatium</i> (<a id="fnanchor-197" href="#fn-197" class="fnanchor">197</a>). -In some of the American cases the mental anguish caused -by the injury has been taken into account in estimating the -damages to be given (<a id="fnanchor-198" href="#fn-198" class="fnanchor">198</a>).</p> - -<p>Not more than one action, however, will lie for and in -respect of the same subject-matter of complaint, and every -such action must be commenced within twelve months after -the death of the person injured.</p> - -<div class="chapter"> -<h2 class="nobreak" id="p082" -title="Chapter VI. Criminal Malpractice.">CHAPTER VI. -<span class="smallerblk">CRIMINAL MALPRACTICE.</span></h2></div> - -<p>Whenever death ensues as the alleged consequence of -malpractice it becomes necessary to inquire into the conduct -of the physician, so as to determine how far his want of skill, -or negligence, has conspired to produce it. The offence -may, under certain circumstances indicating a wanton -and malicious disregard of human life, amount to murder. -Of course, a medical practitioner who should intentionally, -and with malice, cause the death of a patient, would be -held guilty of this crime; but in no case will an indictment -for murder lie, unless there be a felonious destruction of -life, with malice either express or implied. If a patient -die from want of competent skill or sufficient attention the -practitioner is guilty of manslaughter -(<a id="fnanchor-199" href="#fn-199" class="fnanchor">199</a>). -“If one that is -of the mystery of a physician take upon him the cure of a -man, and giveth him such physic so as he dieth thereof, -without any felonious intent and against his will, it is no -homicide.” So saith my Lord Coke. Blackstone says, -“This is neither murder nor manslaughter, but misadventure, -and he shall not be punished criminally.” On the -one hand, we must be careful and most anxious to prevent -people from tampering in physic so as to trifle with the life -of man; and on the other hand, we must take care not to -charge criminally a person who is of general skill because -he has been unfortunate in a particular case. It is God who -gives, man only administers, medicine; and the medicine -<span class="xxpn" id="p083">|83|</span> -that the most skilful may administer may not be productive -of the expected effect; but it would be a dreadful thing -if a man were to be called in question, criminally, whenever -he happened to miscarry in his practice. It would be most -fatal to the efficiency of the medical profession if no one -could administer medicine without a halter round his -neck (<a id="fnanchor-200" href="#fn-200" class="fnanchor">200</a>).</p> - -<p>At one time it was held, that if one, not a regular physician -or surgeon, should administer a medicine or perform an -operation with a fatal effect, it would be manslaughter at the -least; but long since, by Sir Matthew Hale, (one of the -greatest Judges that ever adorned the English Bench), this -doctrine was questioned -(<a id="fnanchor-201" href="#fn-201" class="fnanchor">201</a>). -Now, however, both in England -and America, it is well settled that it makes no difference -whether the party be a regular practitioner or not; if -he, <i>bona fide</i> and honestly exercising his best skill to cure a -patient, performs an operation or administers a medicine -which causes the patient’s death he is not guilty of manslaughter. -“God forbid,” saith Lord Hale, “that any -mischance of this kind should make a person not licensed, -guilty of murder or manslaughter. This doctrine, that if -any one dies under the hand of an unlicensed physician, it is -felony, is apochryphal and fitted, I fear, to gratify and flatter -doctors and licentiates in physic; though it may have its -use, to make people cautious and wary how they take upon -themselves too much, in this dangerous employment.” Hullock, -B., remarked that it would be most dangerous for it to get -abroad that if an operation should fail the surgeon would -be liable to be prosecuted for manslaughter. And as to -making a difference between regular and irregular practitioners -the same learned Judge aptly put it, “in remote -parts of the country many persons would be left to die if -<span class="xxpn" id="p084">|84|</span> -irregular surgeons were not allowed to practise.” Or as -another Judge put it, we should have many of the poorer -sort of people die for want of help, lest their intended helpers -might miscarry (<a id="fnanchor-202" href="#fn-202" class="fnanchor">202</a>).</p> - -<p>Lord Lyndhurst agrees with the rule, but makes an exception. -He says, “I agree that in these cases there is no -difference between a licensed physician or surgeon and a -person acting as a physician or surgeon without a license. -In either case if a party having a competent degree of skill -and knowledge makes an accidental mistake in the treatment -of a patient, through which mistake death ensues, he -is not thereby guilty of manslaughter; but if, where proper -medical assistance can be had, a person, totally ignorant -of the science of medicine, takes on himself to administer -a violent and dangerous remedy to one labouring under -disease, and death ensues in consequence of that dangerous -remedy having been so administered, then he is guilty of -manslaughter.” Webb, a publican, had given large doses -of Morrison’s pills to one ill of small-pox (<a id="fnanchor-203" href="#fn-203" class="fnanchor">203</a>).</p> - -<p>“If any one, whether he be a regular or licensed medical -man or not, professes to deal with the life or health of -others, he is bound to have competent skill to perform the -task that he holds himself out to perform, and he is bound -to treat his patient with care, attention and assiduity;” and -if the patient dies for want of either, the practitioner is -guilty of manslaughter. “Every person who enters into -a learned profession undertakes to bring to the exercise of -it a reasonable degree of care and skill” (<a id="fnanchor-204" href="#fn-204" class="fnanchor">204</a>). And if a medical -man, though lawfully qualified to act as such, cause -<span class="xxpn" id="p085">|85|</span> -the death of a person by the grossly unskilful or grossly -incautious use of a dangerous instrument, he is guilty of -manslaughter. No one is justified in making use of an instrument, -in itself a dangerous one, unless he does so with -a proper degree of skill and caution (<a id="fnanchor-205" href="#fn-205" class="fnanchor">205</a>). There must be -competent knowledge and care in dealing with a dangerous -drug; if a man is ignorant of the nature of the drug he -uses, or is guilty of gross want of care in its use, it would -be criminal culpability (<a id="fnanchor-206" href="#fn-206" class="fnanchor">206</a>). In Iowa, it was held that one -assuming to act as a physician, who treats a patient in good -faith and to the best of his ability, is not criminally responsible -for the death of his patient, caused by the medicine he -administers (<a id="fnanchor-207" href="#fn-207" class="fnanchor">207</a>).</p> - -<p>“To substantiate the charge of manslaughter, the prisoner -must have been guilty of criminal misconduct, arising -either from the grossest ignorance, or the most criminal -inattention; one or other of these is necessary to make him -guilty of that criminal negligence and misconduct which is -essential to make out a case of manslaughter.” Thus Lord -Ellenborough laid down the law in the case of a man midwife -who was on his trial for murder by malpractice (<a id="fnanchor-208" href="#fn-208" class="fnanchor">208</a>). -Long since in the <i>Mirror</i> (<a id="fnanchor-209" href="#fn-209" class="fnanchor">209</a>) it was said, “If physicians or -chirurgeons take upon them a cure, and have no knowledge -or skill therein, or if they have knowledge, if nevertheless -they neglect the cure, or minister that which is cold for -hot, or take little care thereof, or neglect due diligence -therein, and especially in burning and cutting off members, -which they are forbidden to do, but at the peril of their -patient; if their patients die or lose their members, in such -cases they are manslayers or mayhemdors.” Park, J., -<span class="xxpn" id="p086">|86|</span> -charged the jury very similarly in one of St. John Long’s -celebrated cases. “If,” said his Lordship, “you think -there was gross ignorance or scandalous inattention in the -conduct of the prisoner, then you will find him guilty; if -you do not think so, then your verdict will be otherwise” (<a id="fnanchor-210" href="#fn-210" class="fnanchor">210</a>).</p> - -<p>Wharton considers that the position assumed by Lord -Ellenborough depends upon the honesty and <i>bona fides</i> -of the practitioner; and that if he is pursuing a plan of -bold imposture the law would be otherwise (<a id="fnanchor-211" href="#fn-211" class="fnanchor">211</a>).</p> - -<p>In Long’s case, Baron Garrow said, “I make no distinction -between the person who consults the most eminent -physician and the cases of those whose necessities or whose -folly may carry them into any other quarter. It matters -not whether the individual consulted be the President of the -College of Surgeons, or the humblest bone-setter of the -village; but, be it one or the other, he ought to bring into -the case ordinary skill and diligence. I am of opinion -that if a person who has ever so much or so little skill sets -my leg and does it as well as he can and does it badly, he -is excused; but, suppose the person comes drunk, and -gives me a tumbler full of laudanum, and sends me into -the other world, is it not manslaughter? And why is that? -Because I have a right to have reasonable care and caution.” -In a subsequent case against the same practitioner, -Bayley, B., said to the jury, “I have no hesitation in -saying for your guidance, that if a man be guilty of gross -neglect in attending to his patient after he has applied a -remedy, or of gross rashness in the application of it, and -death ensues in consequence, he will be liable to a conviction -for manslaughter.” “I consider rashness will be sufficient -to make it manslaughter. As, for instance, if I have -the toothache, and a person undertakes to cure it by -<span class="xxpn" id="p087">|87|</span> -administering laudanum, and says, ‘I have no notion how -much will be sufficient,’ but gives one a cupful, which -immediately kills; or if a person prescribing James’ powder -says, ‘I have no notion how much should be taken,’ -and yet gives one a tablespoonful, which has the same -effect; such persons, acting with rashness, will, in my -opinion, be guilty of manslaughter. A prosecution is for -the public benefit, and the willingness of the patient cannot -take away the offence against the public” (<a id="fnanchor-212" href="#fn-212" class="fnanchor">212</a>).</p> - -<p>The matter has been well put in a Missouri case. “If,” -said the Judge, “the party prescribing has so much -knowledge of the fatal tendency of the prescription that it -may reasonably be presumed that he administered the -medicine from an obstinate and wilful rashness, and not -from an honest intention and expectation of effecting a -cure, he is guilty of manslaughter at least, though he -might not have intended any bodily harm to the patient” (<a id="fnanchor-213" href="#fn-213" class="fnanchor">213</a>). -It is the presence of intention which determines the moral -complexion of an action, and whenever this intention (always -presumed to be good) is proved to be bad, then, and -then only, does a physician become criminally responsible -for his wrongdoings. Doubtless, a bad intention may be at -times inferred from the character of the misconduct; and -neglect, particularly when gross, may be classed among -those reasons which justify such an inference (<a id="fnanchor-214" href="#fn-214" class="fnanchor">214</a>).</p> - -<p>What the law deems gross negligence has been thus -defined in a case where a “Herbalist” was on trial for -manslaughter, for the death of a patient through an overdose -of colchium seeds and brandy for a cold. “Gross -negligence might be of two kinds; in one sense, where a -man, for instance, went hunting, and neglected his patient, -<span class="xxpn" id="p088">|88|</span> -who died in consequence. Another sort of gross negligence -consisted in rashness, where a person was not sufficiently -skilled in dealing with dangerous medicines which should -be carefully used, of the properties of which he was ignorant, -or how to administer a proper dose. A person who, -with ignorant rashness, and without skill in his profession, -used such a dangerous medicine, acted with gross negligence. -It was not, however, every slip that a man might -make that rendered him liable to a criminal investigation. -It must be a substantial thing. If a man knew that he -was using medicines beyond his knowledge and was meddling -with things above his reach, that was culpable rashness. -Negligence might consist in using medicines in the -use of which care was required, and of the properties of -which the person using them was ignorant. A person who -so took a leap in the dark in the administration of medicines, -was guilty of gross negligence. If a man was -wounded and another man applied to his wound sulphuric -acid, or something which was of a dangerous nature, and -ought not to be applied, and which led to fatal results, then -the person who applied this remedy would be answerable, -and not the person who inflicted the wound, because a -new cause had supervened. But, if the person who -dressed the wound applied a proper remedy, then, if a -fatal result ensued, he who inflicted the wound remained -liable.” In these words Willes, J., charged the jury, and -they, after a long deliberation, brought in a verdict of “not -guilty” (<a id="fnanchor-215" href="#fn-215" class="fnanchor">215</a>). And in the very recent case of <i>State</i> v. <i>Hardister</i> (<a id="fnanchor-216" href="#fn-216" class="fnanchor">216</a>), -it was held that a physician is criminally liable -for his gross ignorance causing the death of his patient, -but not for a mere mistake of judgment.</p> - -<p>However, in the celebrated case against the father and -founder of the botanic or steam system of medicine, whose -<span class="xxpn" id="p089">|89|</span> -favorite remedies were coffee, “well-my-gristle,” and “ram -cats,” it was held, that if a person assuming to be a physician, -through gross ignorance, but honestly and <i>bona fide</i>, -administers medicine which causes the death of the patient, -he is not guilty of manslaughter (<a id="fnanchor-217" href="#fn-217" class="fnanchor">217</a>). This was in the year -1809; and the doctrine laid down was followed in 1844 in -Missouri in an exactly similar case (<a id="fnanchor-218" href="#fn-218" class="fnanchor">218</a>). And quite recently -in Iowa, where one Shulz was tried for manslaughter -because his patient died under the Baunscheidt practice, -<i>i. e.</i>, pricking the body and rubbing in a certain kind of -oil, the Court on review said: “In 2 Bishop’s Criminal -Law, (4th Ed.) sec. 695, the law upon this subject is declared -as follows: ‘From the relationship of physician and -patient the death of the latter not unfrequently arises. -On this subject the doctrine seems to have been held that -whenever one undertakes to cure another of disease or to -perform on him a surgical operation, he renders himself -thereby liable to the criminal law, if he does not carry to -his duty some degree of skill, though what degree may not -be clear; consequently, if the patient dies through his ill-treatment, -he is indictable for manslaughter. On the other -hand, a more humane doctrine is laid down, that since it -is lawful and commendable for one to cure another, if he -undertakes this office in good faith and adopts the treatment -he deems best, he is not liable to be adjudged a felon, -though the treatment should be erroneous, and in the eyes -of those who assume to know all about this subject, which -in truth is understood by no mortal, grossly wrong, and -though he is a person called, by those who deem themselves -wise, grossly ignorant of medicine and surgery. The -former doctrine seems to be the English one, and so in -England a person, whether a licensed medical practitioner -or not, who undertakes to deal with the life or health of -<span class="xxpn" id="p090">|90|</span> -people, is bound to have competent skill or suffer criminally -for the defect. Now, if a man thinks he has competent -skill, and makes no misrepresentation to his patients -concerning the amount or kind of medical education -actually received by himself, he seems in reason to stand -on exactly the foundation occupied by every person who -honestly undertakes medical practice after full advantages, -so far as concerns his state of mind, and it is the mind to -which we look in questions of legal guilt. Any person -undertaking a cure, but being grossly careless and thus -producing death, is for a different reason liable to a charge -of manslaughter, whether he is a licensed practitioner or -not.’ These cases seem to us to announce a correct rule. -The interests of society will be subserved by holding a -physician civilly liable in damages for the consequences of -his ignorance, without imposing upon him criminal liability -when he acts with good motives and honest intentions” (<a id="fnanchor-219" href="#fn-219" class="fnanchor">219</a>).</p> - -<p>If the death of a man has been accelerated by the want -of due skill and competency, or by the carelessness, of his -physician, the latter cannot defend himself by proving that -his patient was afflicted with a mortal disease (<a id="fnanchor-220" href="#fn-220" class="fnanchor">220</a>). If a man -who has received a serious wound is placed under the charge -of a surgeon who, in probing the wound or otherwise operating -on the patient, immediately causes his death; then, if -the surgeon has acted negligently, or maliciously, he is -indictable for the homicide, and the original assailant only -for an attempt. But, if the surgeon using due skill and -care occasions death while he is endeavouring to heal -the wound, then he who inflicted the wound is chargeable -with the death; for he who does an unlawful act is responsible -for all the consequences that in the ordinary course -of events flow from it. It is an ordinary consequence of -a wound that a surgeon should be called in to attend to it, -<span class="xxpn" id="p091">|91|</span> -and it is a necessary incident of surgery that patients -should die under the knife. It is no defence, where a death -is not shewn to have been produced by the medical -attendant’s negligence, that the deceased might have recovered -if a higher degree of professional skill had been -employed (<a id="fnanchor-221" href="#fn-221" class="fnanchor">221</a>).</p> - -<p>If a person is assailed by a fatal disease, and there is -no escape from it, save by a dangerous surgical operation, -then, if he gives his free and intelligent consent to the -operation, and it is skilfully performed, the surgeon cannot -be blamed even though the patient perish under the knife. -The German Jurists go still further and say, suppose a -dangerous operation is required as the last hope of resuscitating -an unconscious person; if the operation is performed -with the skill usual to surgeons under such circumstances, -and death ensue, the surgeon is blameless (<a id="fnanchor-222" href="#fn-222" class="fnanchor">222</a>). If a woman -is in such a state of labor that her life can only be preserved -by the sacrifice of that of the child, then it is not -only the right but the duty of the attendant to save the -mother at the expense of the babe. Wharton says that this -position is indisputable (<a id="fnanchor-223" href="#fn-223" class="fnanchor">223</a>).</p> - -<p>From the leading cases the following propositions may -be extracted, say Wharton and Stillè, sec. 1063.</p> - -<p>1. If the defendant acted honestly and used his best skill -to cure, and it does not appear that he thrust himself in -the place of a competent person, it makes no difference -whether he was at the time a regular physician or surgeon, -or not.</p> - -<p>2. To constitute guilt, gross ignorance or negligence -must be proved. -<span class="xxpn" id="p092">|92|</span></p> - -<p>3. A defendant who, with competent knowledge, makes -a mistake in a remedy is not answerable, but it is otherwise -when a violent remedy, shewn to have occasioned -death, is administered by a person grossly ignorant but -with average capacity, in which case malice is presumed -in the same way that it is presumed when a man <i>compos -mentis</i> lets loose a mad bull into a thoroughfare, or casts -down a log of wood on a crowd.</p> - -<p>4. Where competent medical aid can be had, the application -of violent remedies by an ignorant person, though -with the best motives, involves him in criminal responsibility.</p> - -<p>5. Express malice, or an intent to commit a personal or -social wrong, makes the practitioner criminally responsible -in all cases of mischief.</p> - -<p>These well known writers say, that according to Caspar -and Böcker, in the treatment of internal diseases, the physician -can never be held guilty of criminal carelessness for -failing to use any particular remedy, since there is never -any remedy upon which all authorities are agreed, and -since it is always possible the patient may recover without -the use of such remedy (<a id="fnanchor-224" href="#fn-224" class="fnanchor">224</a>).</p> - -<div class="chapter"> -<h2 class="nobreak" id="p093" -title="Chapter VII. Professional Evidence.">CHAPTER VII. -<span class="smallerblk">PROFESSIONAL EVIDENCE.</span></h2></div> - -<p>It was decided nearly one hundred years ago, in the -Duchess of Kingston’s case, that a medical man has no -privilege to avoid giving in evidence any statement made -to him by a patient, but that he is bound to disclose, when -called upon to do so in a court of justice, every communication, -however private and confidential, which has been -made to him by a patient while attending him in a professional -capacity (<a id="fnanchor-225" href="#fn-225" class="fnanchor">225</a>). This has often been deemed a grievance -by medical men, and considered a compulsory breach of -professional ethics; for the relations between patient and -physician, being necessarily of a confidential character, -communications made to a physician are looked upon, by -the profession, as confessions which should be kept religiously -locked in the brain of the physician. Lord Mansfield -said, “If a medical man was voluntarily to reveal those -secrets, to be sure he would be guilty of a breach of honour -and of great indiscretion, but to give that information -which by the law of the land he is bound to do will never -be imputed to him as any indiscretion whatever” (<a id="fnanchor-226" href="#fn-226" class="fnanchor">226</a>).</p> - -<p>A French writer says, the tribunals neither ought, nor -have they the power, to exact from a physician the revelation -of a secret confided to him because of his office; at all -events, he may and ought to refuse to tell. Religion, -<span class="xxpn" id="p094">|94|</span> -probity, nay, the rights of society, make this the law. -Still more are we bound to secrecy when not compelled to -disclose. Upon this point casuists and jurisconsults are of -one opinion (<a id="fnanchor-227" href="#fn-227" class="fnanchor">227</a>).</p> - -<p>These communications between physician and patient, -which may relate to the history of a transaction in which -a wound has been received, or a particular disease communicated, -whenever essential to the treatment of the patient’s -case, are in some States of the American Union considered -privileged communications, which the physician is -either expressly forbidden, or not obliged, to reveal. This -is the law in Arkansas, California, Indiana, Michigan, Iowa, -Missouri, Minnesota, Montana, New York, Ohio and Wisconsin. -In Wisconsin he is not compelled, and in the other -States named he is not allowed to make the disclosure; -but in Minnesota the prohibition extends only to civil cases; -and in Iowa, Indiana and Minnesota, the seal can be -removed by the patient himself. In these States the confession, -in order to be protected against disclosure, must -relate exclusively to such matters as are indispensable to -the professional treatment of the patient. Communications -made outside of this sphere acquire no immunity from -having been entrusted to physicians, for at common law -such are not deemed privileged, and wherever so recognized -they are the creatures of statutory enactment (<a id="fnanchor-228" href="#fn-228" class="fnanchor">228</a>).</p> - -<p>As stated, in some of the above-mentioned States, the -party interested may waive the privilege, in which case the -communication may be disclosed (<a id="fnanchor-229" href="#fn-229" class="fnanchor">229</a>). But in New York it -is expressly enacted that “no person duly authorized to -practise physic, or surgery, shall be allowed to disclose any -information which he may have acquired in attending any -<span class="xxpn" id="p095">|95|</span> -patient in a professional character, and which information -was necessary to enable him to prescribe for such patient -as a physician, or to do any act for him as a surgeon” (<a id="fnanchor-230" href="#fn-230" class="fnanchor">230</a>).</p> - -<p>Yet, even there, the statute will not be construed so as to -shield a person charged with a crime, instead of being a -protection to the victim, the patient (<a id="fnanchor-231" href="#fn-231" class="fnanchor">231</a>).</p> - -<p>The seal upon the physicians lips is not taken away by -the patient’s death (<a id="fnanchor-232" href="#fn-232" class="fnanchor">232</a>).</p> - -<p>Necessarily all communications to be privileged must -be of a lawful character, and not against morality or -public policy; hence a consultation as to the means of -procuring an abortion on another is not privileged; nor, -by parity of reason, would any similar conference which -was held for the purpose of devising a crime or evading its -consequences (<a id="fnanchor-233" href="#fn-233" class="fnanchor">233</a>).</p> - -<p>It must appear not only that the information was acquired -during professional attendance, but was such as was necessary -to enable the physician to prescribe. It is for the -party objecting to shew that the information sought to be -obtained is within the statutory exclusion. “It will not -do to extend the rule of exclusion so far as to embarrass -the administration of justice. It is not even all information -which comes within the letter of the statute which is -to be excluded. The exclusion is aimed at confidential -communications of a patient to his physician, and also -such information as a physician may acquire of secret -ailments by an examination of the person of his patient. -The policy of the statute is to enable a patient, without -danger of exposure, to disclose to his physician all -<span class="xxpn" id="p096">|96|</span> -information necessary for his treatment. Its purpose is to invite -confidence and to prevent a breach thereof. Suppose a -patient has a fever, or a fractured leg or skull, or is a -raving maniac, and these ailments are obvious to all about -him, may not the physician who is called to attend him -testify to these matters?” “Before information sought to be -obtained from physicians, witnesses, can be excluded the -court must know somewhat of the circumstances under -which it was acquired, and must be able to see that it is -within both the language and the policy of the law” (<a id="fnanchor-234" href="#fn-234" class="fnanchor">234</a>).</p> - -<p>A report of the medical officer of an insurance company -on the health of a party proposing to insure his life is not -privileged from production; nor is the report of a surgeon -of a railway company, as to the injuries sustained by a -passenger in an accident, unless such a report has been -obtained with a view to impending litigation (<a id="fnanchor-235" href="#fn-235" class="fnanchor">235</a>).</p> - -<p>Representations made by a sick person of the nature -and effects of the malady under which he is suffering are -receivable as original evidence, whether made to a physician -or to any other; though, if made to a physician, they are -entitled to greater weight than if made to a man incapable -of forming a correct judgment respecting the accuracy of -the statements, from unacquaintance with the symptoms of -diseases (<a id="fnanchor-236" href="#fn-236" class="fnanchor">236</a>). When the bodily or mental feelings of a party -are to be proved, his exclamations or expressions indicating -present pain or malady are competent evidence (<a id="fnanchor-237" href="#fn-237" class="fnanchor">237</a>); and -<span class="xxpn" id="p097">|97|</span> -the complaints and statements of the injured party, if -made at the very time of the occurrence, are admissible as -<i>res gestæ</i>, not only as to the bodily suffering, but as to the -circumstances of the occurrence; and the time in question -is not the time of injury, but the time when it is material -to prove a condition of bodily or mental suffering, and that -may be material for weeks, and perhaps months, after an -injury has been inflicted. The statements are admissible -even though made after the commencement of an action, -though this may be a circumstance to detract from the -weight of the evidence of a physician, so far as it was -founded on the statements (<a id="fnanchor-238" href="#fn-238" class="fnanchor">238</a>). But statements or declarations -of a sick or injured person, referring to his state and -condition at a time past, and not furnishing evidence of a -present existing malady, are to be carefully excluded, -whether made to an expert or a non-expert (<a id="fnanchor-239" href="#fn-239" class="fnanchor">239</a>), and statements -in writing by patients to a medical man, describing -the symptoms of the illness upon which the physician has -advised the patient, are also inadmissible in evidence (<a id="fnanchor-240" href="#fn-240" class="fnanchor">240</a>). -It has been said in Illinois, that as a physician must -necessarily, in forming his opinion, be, to some extent, -guided by what the sick person may have told him in detailing -his pains and sufferings, not only the opinion of the -expert, founded in part upon such data, is receivable in evidence, -but that he may state what the patient said in describing -his bodily condition, if said under circumstances -which free it from all suspicions of being spoken with reference -to future litigation and give it the character of <i>res -gestae</i> (<a id="fnanchor-241" href="#fn-241" class="fnanchor">241</a>). -<span class="xxpn" id="p098">|98|</span></p> - -<p>On the other hand, in Massachusetts, in an action for -personal injuries, a surgeon who had attended plaintiff was -held competent to testify as to plaintiff’s condition from -what he saw, but not from anything the patient told him (<a id="fnanchor-242" href="#fn-242" class="fnanchor">242</a>). -A physician testified that the plaintiff stated she had -received a blow in the stomach. The Court said that it -would clearly have been competent for the physician, after -having testified to the plaintiff’s condition and to the complaints -and symptoms of pain and sufferings stated by her, -to have given his opinion that they were such as might have -been expected to follow the infliction of a severe blow. But -it was not competent for the physician to testify to her -statement that she had received a blow in her stomach (<a id="fnanchor-243" href="#fn-243" class="fnanchor">243</a>). -And in Tennessee, the statement made by a man when his -wounds were being examined, as to who made them, or as -to the instrument with which they were inflicted, was -deemed inadmissible (<a id="fnanchor-244" href="#fn-244" class="fnanchor">244</a>).</p> - -<p>Memoranda, although not legal instruments in the proper -sense of the term, have been considered as an inferior class -of records, and as such entitled to some standing in courts. -Such minutes of past facts may be used by experts while -under examination, but only to refresh their memory, and -not to take its place. For this purpose they may use -written entries in note books, or even copies of them, provided -always they can swear to the truth of the facts as -there stated. Yet, if they can not from recollection speak -to the fact any farther than as finding it stated in a written -entry, their testimony will amount to nothing. It is not -necessary that the writing should have been made by the -expert himself, nor even that it should be an original -<span class="xxpn" id="p099">|99|</span> -writing, provided, after inspecting it, he can testify to the facts -from his own recollection (<a id="fnanchor-245" href="#fn-245" class="fnanchor">245</a>).</p> - -<p>The English and American authorities agree that medical, -or other scientific books, are not competent evidence in -courts of law; they cannot be put in evidence, although -the medical witnesses state that such books are works of -authority in medicine. Tindal, C.J., thought that witnesses -might be asked whether in the course of their reading -they had found such-and-such a rule laid down; they might -be asked how far their opinion was founded on books, and -might refer to such books; they might be asked their -judgment on the point, and the grounds of it, which may -be in some degree founded on these books, as a part of -their general knowledge, but the book itself could not be read. -And as late as 1875, Mr. Justice Brett refused to allow -Taylor’s Medical Jurisprudence to be read to the jury, saying: -“That is no evidence in a court of justice. It is a -mere statement by a medical man of hearsay facts of cases -at which he was, in all probability, not present. I cannot -allow it to be read.” And the refusal seems to be the rule -in England. And Redfield, C.J., says, that when objected -to, these books have not generally been allowed to be read -in the United States, either to the Court or jury. And a -very recent writer says, “The result of the cases on -this subject shews clearly that the very decided weight of -authority is against the admissibility in evidence of standard -medical treatises.” Such is the rule in England, -Ontario, Indiana, Maine, Maryland, Massachusetts, Michigan, -North Carolina, Rhode Island and Wisconsin, supported -by <i>dicta</i> in California and New Hampshire, and opposed by -decisions in Alabama and Iowa (<a id="fnanchor-246" href="#fn-246" class="fnanchor">246</a>). -<span class="xxpn" id="p100">|100|</span></p> - -<p>In Iowa and Wisconsin such books have been allowed to -be read, the Court in one case remarking, “The opinion -of an author, as contained in his works, we regard as better -evidence than the mere statement of those opinions by -a witness, who testifies as to his recollection of them from -former reading. Is not the latter secondary to the former? -On the whole, we think it the safest rule to admit standard -medical books as evidence of their opinions upon questions -of medical skill or practice involved in the treatment.” -In Wisconsin, however, the court seems now to have overruled -its earlier decisions, and to have sided with the -majority (<a id="fnanchor-247" href="#fn-247" class="fnanchor">247</a>).</p> - -<p>In Illinois, a witness may, to test his knowledge, be -cross-examined as to his reading of particular authors -upon the subject, and as to whether reputable writers do -not entertain certain views upon the subject. Paragraphs -from standard authors, treating of the disease in question, -may be read to the witness, and he may be asked if he -agrees therewith, as one of the means of testing his knowledge; -but care should be taken by the court to confine such -cross-examination within reasonable limits, and to see that -the quotations read are fairly selected so as to present the -author’s views. Mr. Rogers questions the wisdom of this -decision (<a id="fnanchor-248" href="#fn-248" class="fnanchor">248</a>). The witness, however, cannot read from a -scientific work in his examination in chief, though he be an -expert and agree with the views expressed by the author (<a id="fnanchor-249" href="#fn-249" class="fnanchor">249</a>). -Nor can a passage from a book be got before a jury as evidence -in an indirect manner, when it cannot be read to -them. So it was decided where a medical man was asked -if he was acquainted with a certain book; he replied, that -he had heard of it, but had not read it. He was then asked -<span class="xxpn" id="p101">|101|</span> -whether it was considered good authority, and he said it -was. He was then asked to read a certain paragraph; this -he did, and was re-called. Counsel then read from the -book the same paragraph and asked if such a case as that -stated was reported. Held to be error (<a id="fnanchor-250" href="#fn-250" class="fnanchor">250</a>). And in Ontario -it has been held improper to ask medical witnesses, on -cross-examination, what books they consider best upon the -subject in question, and then to read such books to the jury; -but they may be asked whether such books have influenced -their opinion (<a id="fnanchor-251" href="#fn-251" class="fnanchor">251</a>).</p> - -<p>Although, as a rule, scientific books cannot be read to a -jury as evidence, they may be read to discredit the testimony -of experts, who claim to be familiar with them and refer -to them as authority. Where one borrows credit for his -accuracy, by referring to books treating of the subject, and -by implying that he echoes the standard authorities, the -book may be resorted to, to disprove the statement of the -witness, and to enable the jury to see that the book does -not contain what he says it does, and thus to disparage the -witness, and hinder the jury from being imposed upon by -a false light (<a id="fnanchor-252" href="#fn-252" class="fnanchor">252</a>). It has been held again and again that -scientific books cannot be read by counsel to the jury as a -part of their argument. Shaw, C.J., of Massachusetts, -says, “Facts or opinions cannot be laid before the jury, -except by the testimony under oath of persons skilled in -such matters.” Again, “where books are thus offered (<i>i. e.</i>, -to be read in argument), they are, in effect, used as evidence, -and the substantial objection is, that they are statements -wanting the sanction of an oath; and the statement thus -proposed is made by one not present, and not liable to cross-examination. -If the same author were cross-examined, and -<span class="xxpn" id="p102">|102|</span> -called to state the grounds of his opinions, he might, -himself, alter or modify it, and it would be tested by a -comparison with the opinions of others. Medical authors, -like writers in other departments of science, have their -various and conflicting theories, and often defend and -sustain them with ingenuity. But as the whole range -of medical literature is not open to persons of common -experience, a passage may be found in one book favorable -to a particular opinion, when, perhaps, the same opinion -may have been vigorously contested, and, perhaps, triumphantly -overthrown, by other medical authors, but authors -whose works would not be likely to be known to counsel or -client, or to Court or jury. Besides, medical science has its -own nomenclature, its technical terms and words of art, -and also common words used in a peculiar manner, distinct -from the received meaning in the general use of the -language. From these and other causes, persons not versed -in medical literature, though having a good knowledge of -the general use of the English language, would be in danger, -without an interpreter, of misapprehending the true meaning -of the author. Whereas a medical witness could not -only give the fact of his opinion, and the grounds on which -it is formed, with the sanction of his oath, but would also -state and explain it in language intelligible to men of common -experience. If it be said that no books should be -read, except works of good and established authority, the -difficulty at once arises as to the question, what constitutes -“good authority?” (<a id="fnanchor-253" href="#fn-253" class="fnanchor">253</a>).</p> - -<p>In an English case, counsel, in addressing the jury, -attempted to quote from a work on surgery; Alderson, B., -would not allow him, saying, “You surely cannot contend -that you may give the book in evidence, and if not, what -right have you to quote from it in your address, and do -that indirectly which you would not be permitted to do in -<span class="xxpn" id="p103">|103|</span> -the ordinary course?” In Massachusetts, North Carolina, -Michigan, California and New York, similar decisions have -been given (<a id="fnanchor-254" href="#fn-254" class="fnanchor">254</a>); and in giving the dissenting opinion in <i>State -and Hoyt</i> (<a id="fnanchor-255" href="#fn-255" class="fnanchor">255</a>), Loomis, J., said, “Books may be crazy as well -as men, and all sorts of theories relative to responsibility for -crime are advocated in books. Courts do not take judicial -notice of standard medical or scientific works, and the standard -works of to-day may not long continue such, owing to -new discoveries and advancing knowledge.” In this case -the question was as to reading medical books on insanity -on trials where the question of insanity arose; the book -was Ray’s “Medical Jurisprudence of Insanity.” In a -still later case (<a id="fnanchor-256" href="#fn-256" class="fnanchor">256</a>), it was held to have been error for the -attorney, on the argument, to read to the jury extracts from -Browne’s “Medical Jurisprudence of Insanity.” The Court -said, that it is peculiarly important that a defendant charged -with a crime should be confronted by the expert witnesses -against him, and that they should be cross-examined in his -presence. But when the opinions of a writer are permitted -to go to the jury, the writer is not sworn or cross-examined. -If held admissible the question (of insanity) may be tried, -not by the testimony, but upon excerpts from works presenting -partial views of variant and perhaps contradictory -theories (<a id="fnanchor-257" href="#fn-257" class="fnanchor">257</a>).</p> - -<p>In Connecticut, however, in a murder case the Court (Loomis, J., and -Park, C.J., out of the five Judges dissenting,) held, that standard -medical works on insanity might be read to the jury by the counsel for -the accused, when -<span class="xxpn" id="p104">|104|</span> -discussing the question of his insanity. It was said that -“in this jurisdiction (that of Connecticut) for a long series -of years counsel have been permitted to read to the jury, -as a part of their argument upon this part of their case, -extracts from such treatises as by the testimony of experts -have been accepted by the profession as authority upon that -subject, such treatises as have helped to form the opinion -expressed by the expert. The practice by repetition has -hardened into a rule” (<a id="fnanchor-258" href="#fn-258" class="fnanchor">258</a>). In Indiana, it was held that if the -extracts were merely argumentative and contained no -opinions that could be regarded as properly matters of -evidence, they might be admitted, subject to the instructions -of the Court as to the law of the case and under the warning -that they were not evidence. In Texas and in Delaware, -similar decisions have been given (<a id="fnanchor-259" href="#fn-259" class="fnanchor">259</a>). And in Ohio, where, -at the trial of a cause, counsel was forbidden to read to the -jury Youatt’s work on Veterinary Surgery, the Court, on -appeal, said, “It is not to be denied, but that a pertinent -quotation or extract from a work on science or art, as well -as from a classical, historical, or other publication, may, by -way of argument or illustration, be not only admissible, but -sometimes highly proper, and it would seem to make no -difference whether it was repeated by counsel from recollection -or read from a book. It would be an abuse of this -privilege, however, to make it the pretence of getting -improper matter before the jury as evidence in the cause.” -As it did not appear that the proposed quotation was relevant -or came within the appropriate and legitimate scope -of the argument, or that the party was injured by its -exclusion, the Court would not reverse on this ground (<a id="fnanchor-260" href="#fn-260" class="fnanchor">260</a>). -Where the reading is allowed, it seems to be considered “a -valuable privilege, yet so susceptible of abuse, that the -<span class="xxpn" id="p105">|105|</span> -extent and manner of its exercise must be entrusted in -a great measure to the sound discretion of the Court;”—“not -a practice ever sanctioned directly or indirectly by the Court, -nor one which has generally been considered by the Judges -as of binding force in law, but rather as subject to the discretion -which, it is true, has been usually exercised in favor -of the accused in capital trials” (<a id="fnanchor-261" href="#fn-261" class="fnanchor">261</a>).</p> - -<p>Where the exclusion rule obtains, counsel in addressing -the jury has no right to quote the opinions of medical men -as given in their works; if they do, it is the duty of the -Court to instruct the jury that such books are not in evidence -but theories simply of medical men (<a id="fnanchor-262" href="#fn-262" class="fnanchor">262</a>). But there is no -question that, under all circumstances, books of science may -be read in argument to the Court.</p> - -<p>Medical men are often called to give evidence as to dying -declarations where there is a charge of homicide, and where -the cause of the death of the declarant is the subject of the -declaration. They should remember that the declaration -will not be admissible unless the deceased was conscious of -approaching death and made it under a sense of his impending -doom; any hope of recovery, however slight, renders the -declaration inadmissible; and the question turns rather -upon the expectation of death at the time of making the -declaration than upon the interval between it and the -death (<a id="fnanchor-263" href="#fn-263" class="fnanchor">263</a>).</p> - -<p>An entry made by a medical man, in the course of his profession, -is admissible in evidence after his death, if it be -against his interest; and such an entry will be received -as evidence of collateral and independent matter, etc. When -<span class="xxpn" id="p106">|106|</span> -the question was as to the age of a child, the book of the -accoucheur who attended the mother was produced; it contained -an entry as follows, “W. Fowden, Jun.’s, wife; <i>Filius -circa hor. 3 post merid. nat.</i> etc. W. Fowden, 1768, April 22. -<i>Filius natus</i> wife, £1 6s. 1d.; Pd. 25 Oct. 1768.” The word -“Paid” was against the pecuniary interest of the accoucheur, -so the entry was admitted to prove the date of the -birth (<a id="fnanchor-264" href="#fn-264" class="fnanchor">264</a>).</p> - -<p>In England the rule is thus laid down as to excluding -experts from the room during the examination of witnesses; -“medical or other professional witnesses, who are -summoned to give scientific opinions upon the circumstances -of the case as established by other testimony, will be permitted -to remain in court until this particular class of -evidence commences, but then, like ordinary witnesses, they -will have to withdraw, and to come in one by one, so as to -undergo a separate examination.” A similar rule prevails -in Scotland and in the United States (<a id="fnanchor-265" href="#fn-265" class="fnanchor">265</a>).</p> - -<p>It would seem that the court has power to limit the -number of experts in any case (<a id="fnanchor-266" href="#fn-266" class="fnanchor">266</a>).</p> - -<p>Taylor, in his well-known work on “Medical Jurisprudence,” -lays down many valuable suggestions for the guidance -of medical witnesses; among other things, he says, -“In reference to <i>facts</i>, a medical witness must bear in -mind that he should not allow his testimony to be influenced -by the consequences that may follow from his statement -of them, or there probable effect on any case which is -under trial. In reference to <i>opinions</i>, their possible influence -on the fate of a prisoner should inspire caution in -<span class="xxpn" id="p107">|107|</span> -forming them; but, when once formed, they should be -honestly and candidly stated, without reference to consequences.” -“The questions put on either side should receive -direct answers from the medical witness, and his manner -should not be perceptibly different whether he is replying -to a question put by the counsel for the prosecution, or for -the defence.” “The replies should be concise, distinct and -audible, and except where explanation may be necessary, -they should be confined strictly to the terms of the question.” -“Answers to questions should be neither ambiguous, undecided, -nor evasive.” “The replies should be made in simple -language, free from technicality.” “A medical witness -may, without any imputation upon his <i>bona fides</i>, explain -medical points to counsel, and correct him on medical -subjects, when wrong in his views or statements, but he -should avoid even the appearance of prompting counsel in -the conduct of the case.”</p> - -<div class="chapter"> -<h2 class="nobreak" id="p108" -title="Chapter VIII. Medical Experts."> -CHAPTER VIII. -<span class="smallerblk">MEDICAL EXPERTS.</span></h2> -</div> - -<p>Whenever the subject matter of a legal enquiry is such -that, from its partaking of the nature of a science, art or -trade, inexperienced persons are unlikely to prove capable -of forming a correct judgment upon it without assistance, -then the opinions of witnesses possessing peculiar skill and -knowledge in the matters in question are admissible in courts -of justice. And it is only when the matter inquired of lies -within the range of the peculiar skill and experience of the -witnesses, and is one of which the ordinary knowledge and -experience of mankind does not enable them to see what -inference should be drawn from the facts, that the skilled -witnesses may supply opinions as their guide (<a id="fnanchor-267" href="#fn-267" class="fnanchor">267</a>). The rule -admitting the opinions of experts in such cases is founded -on necessity, for juries are not selected with any view to -their knowledge of a particular science, art or trade, requiring -a course of previous study, experience or preparation (<a id="fnanchor-268" href="#fn-268" class="fnanchor">268</a>).</p> - -<p>The rule of law on which the giving in evidence the -opinion of witnesses, who know nothing of the actual facts -of the case, is founded, is not peculiar to medical testimony, -but is as a general rule applicable to all cases where the -question is one depending on skill and science in any particular -department. . . . In general it is the opinion of the -jury which is to govern, and this is to be formed upon the -<span class="xxpn" id="p109">|109|</span> -proof of the facts laid before them. But some questions lie -beyond the scope of the observation and experience of men -in general, yet are quite within the observation and experience -of those whose peculiar pursuits and profession have -brought that class of facts frequently and habitually under -their consideration. When, therefore, a question arises in -a court of justice upon any such subject, and certain facts -are proved by other witnesses, one skilled in such subject -may be asked his opinion as to the character of such facts; -or he may be asked his opinions on certain facts -observed by himself. This is true with regard to any -question of science, because persons conversant with such -science have peculiar means, from a larger and more exact -observation and long experience in such department of -science, of drawing correct inferences from certain facts -observed by themselves or testified to by other witnesses. -The opinion of such witnesses is designed to aid the judgment -of the jury in regard to the influence and effects of -certain facts which lie out of the observation and experience -of persons in general (<a id="fnanchor-269" href="#fn-269" class="fnanchor">269</a>). These witnesses are called -“experts.” This term seems to imply both superior knowledge -and practical experience in the art or profession. But -generally nothing more is required to entitle one to give -testimony as an expert, than that he has been educated in -the particular art or profession; for persons are presumed -to understand questions pertaining to their own profession -or business (<a id="fnanchor-270" href="#fn-270" class="fnanchor">270</a>).</p> - -<p>The practice of admitting the evidence of experts is an -old one: in the Roman Law they are frequently alluded -to, and in the earliest Common Law reports they are -spoken of as of established usage. Says Saunders, J., -“and first I grant that if matters arise in our law which -<span class="xxpn" id="p110">|110|</span> -concern other sciences or faculties we commonly apply for -the aid of that science or faculty which it concerns. In a -case of mayhem the defendant prayed the court that the -wound might be examined, on which a writ was issued to -the sheriff to cause to come “<i>medicos chirurgos de -melioribus London. ad informandum Dominum regem et -curiam de his quæ eis exparte Domini Regis injungerentur</i> (<a id="fnanchor-271" href="#fn-271" class="fnanchor">271</a>).”</p> - -<p>Some Judges and writers have very little respect for the -evidence and opinions of experts. An Iowa Judge says, -observation and experience “teach that the evidence of -experts is of the very lowest order, and of the most unsatisfactory -kind.” One from Maine, speaks of “the vain -babblings and oppositions of science so called, which swell -the record of the testimony of experts when the hopes of a -party depend rather upon mystification than enlightenment.” -An Illinois Judge quotes a distinguished occupant of -the bench as saying, “if there was any kind of testimony not -only of no value, but even worse than that, it was in his -judgment that of medical experts.” Lord Campbell said, -“Hardly any weight is to be given to the evidence of -what are called scientific witnesses: they come with a -bias on their minds to support the cause in which they -are embarked” (<a id="fnanchor-272" href="#fn-272" class="fnanchor">272</a>). Taylor says, “Perhaps the testimony -which least deserves credit with a jury is that of skilled -witnesses. . . . Being zealous partisans their belief -becomes synonymous with faith as defined by the apostle, -and it too often is but the substance of things hoped for, -the evidence of things not seen” (<a id="fnanchor-273" href="#fn-273" class="fnanchor">273</a>). On the other hand, -Best says, “It would not be easy to overrate the value of -the evidence given in many difficult and delicate enquiries, -not only by medical men and physiologists, but by learned -<span class="xxpn" id="p111">|111|</span> -and experienced persons in various branches of science, -art and trade” (<a id="fnanchor-274" href="#fn-274" class="fnanchor">274</a>). And many Judges have spoken of the -essential aid to courts and juries rendered by the opinion -of the experienced, skilful and scientific witness who has a -competent knowledge of the facts involved.</p> - -<p>When one takes his place as an expert before a court, a -legal paradox is instituted on his behalf, by which he is -allowed to testify—not as to what he knows, but to what -he believes or forms an opinion upon, based necessarily on -probabilities of analogy as well as experience. Nothing is -required (in the absence of any statutory provision to the -contrary) to entitle any one to give evidence as a medical -witness, than that he has been educated in the science of -medicine; and this he may be by study without practice, -or by practice without study; it is not necessary that he -should be a physician, or have studied for one, nor be a -graduate, nor one licensed to practise, nor need he be or -have been a practitioner (<a id="fnanchor-275" href="#fn-275" class="fnanchor">275</a>). One may be competent to -testify as an expert, although his special knowledge of the -particular subject of enquiry has been derived from the -reading and study of standard authorities, and not from -experience or actual observation. But one cannot qualify -himself as an expert in a particular case merely by -devoting himself to the study of authorities for the purposes -of that case, when such reading and study is not in -the line of his special calling or profession and is entered -upon to enable him to testify in the case. In Vermont, -however, it has been held that mere education as a physician, -without some practice as such, is insufficient to qualify -one as an expert; and in Arkansas, it is said, that competency -must be shewn from study and experience. In New -York, it has been held that one otherwise qualified, who is -<span class="xxpn" id="p112">|112|</span> -a physician and surgeon, may give evidence, although not -in full practice at the time; this fact merely goes to affect -his credit (<a id="fnanchor-276" href="#fn-276" class="fnanchor">276</a>).</p> - -<p>It is not necessary that the physician should have made -the particular disease involved in the enquiry a specialty; -medical men of practice and experience are experts, and -their opinions are admissible in evidence upon questions -that are strictly and legitimately embraced in their profession -and practice. If one has made the matter in question -a specialty, doubtless his opinion will be of more value -than if he has not; and it has been said, that one who has -devoted himself exclusively to one branch of his profession -cannot give evidence as an expert on another (<a id="fnanchor-277" href="#fn-277" class="fnanchor">277</a>). For -example, one not an oculist may speak as to the cause of -injuries to an eye; one who has not made diseases of the -mind a special study may give his opinion as to the existence -of insanity; one not a practical chemist or analyst, -but understanding the practical details of chemistry and -the means of detecting poisons, may testify as to the tests -in the chemical analysis of a stomach, and as to the tests -usually applied to detect poison (<a id="fnanchor-278" href="#fn-278" class="fnanchor">278</a>). The law will even -allow a physician to speak as to the length of time a mule -has been suffering from a disease (<a id="fnanchor-279" href="#fn-279" class="fnanchor">279</a>). But one who has -had no experience as to the effect upon health of illuminating -gas cannot testify in relation thereto as an expert (<a id="fnanchor-280" href="#fn-280" class="fnanchor">280</a>). -Nor can one who has for thirty years been exclusively -treating the insane be permitted to testify, as an expert, on -<span class="xxpn" id="p113">|113|</span> -the mental capacity of a person in the last stages of disease, -who has not been previously insane (<a id="fnanchor-281" href="#fn-281" class="fnanchor">281</a>).</p> - -<p>To render the opinion of a witness competent evidence, -he must, in general, be in some way peculiarly qualified to -speak on the subject, and have knowledge not possessed by -the mass of persons of ordinary experience and intelligence (<a id="fnanchor-282" href="#fn-282" class="fnanchor">282</a>). -Upon this principle, a priest who had studied -physiology and psychology, in order that he might pass -upon the mental conditions of communicants in his church, -and who had so to decide daily, was permitted to speak as -to the mental state of a woman whom he had attended in -her last illness (<a id="fnanchor-283" href="#fn-283" class="fnanchor">283</a>).</p> - -<p>It is a question of fact to be decided at the trial, by the -Court, whether a witness offered as an expert has the -necessary qualification (<a id="fnanchor-284" href="#fn-284" class="fnanchor">284</a>). And the matter cannot be -referred to the decision of the jury. The decision of the -Judge at the trial will not be interfered with by the Court, -except in a clear and strong case (<a id="fnanchor-285" href="#fn-285" class="fnanchor">285</a>).</p> - -<p>Any one offered as an expert who cannot establish the -fact of special knowledge or skill, in the particular department -which he is called upon to illuminate, will be rejected. -A Court before permitting an expert to testify may examine -him, or hear evidence, to satisfy itself that the witness is -really what he assumes to be (<a id="fnanchor-286" href="#fn-286" class="fnanchor">286</a>). -<span class="xxpn" id="p114">|114|</span></p> - -<p>“We find no test laid down,” says the Supreme Court of -Indiana, “by which we can determine with mathematical -precision just how much experience a witness must have -had, how expert, in short, he must be, to render him -competent to testify as an expert.” But it is for the Court -to decide, within the limits of a fair discretion, whether the -experience of the proposed expert has been such as to make -his opinions of any value; mere opportunities for special -observation will not be deemed sufficient (<a id="fnanchor-287" href="#fn-287" class="fnanchor">287</a>).</p> - -<p>While the Court, or Judge, determines the competency of -the witness to testify as an expert, the weight to be accorded -to his testimony is for the jury to decide. The testimony -of an expert is to be weighed and tested like any other kind -of evidence, and is to receive just such credit as the jury -may think it entitled to. It is intended to enlighten their -minds, not control their judgment (<a id="fnanchor-288" href="#fn-288" class="fnanchor">288</a>). The jury are not -bound by the opinions of medical experts: they may weigh -their opinions like any other evidence. They may act -against the greater number of opinions and in favour of -the fewer; for the opinion of one expert may, on account -of his greater knowledge and experience on the subject, or -from his giving further details of the case, or more probable -reasons for his opinions, be of greater value to the jury than -the opposite opinions of several (<a id="fnanchor-289" href="#fn-289" class="fnanchor">289</a>).</p> - -<p>Ordronaux holds that a physician, although confessedly -possessing the ordinary experience of his profession, may -<i>quoad</i> some particular problem in medical science not be -an expert in the best and most critical sense of the term. -<i>Non omnes omnia possumus.</i> Once received as an expert, -<span class="xxpn" id="p115">|115|</span> -the maxim “<i>Cuilibet in sua arte perito credendum est</i>,” -must be applied, and he cannot be contradicted by any -unskilled person (<a id="fnanchor-290" href="#fn-290" class="fnanchor">290</a>).</p> - -<p>In 1869, the Chief Justice of the Kentucky Court of -Appeal well said, that “the opinions of experts not founded -on science, but on a mere theory of morals or ethics, whether -given by professional or unprofessional men, are wholly -inadmissible as evidence.” Hence the opinion of even -physicians that no sane man in a Christian country would -commit suicide, not being founded on the science or -phenomena of the mind, but rather a theory of morals, -religion and future responsibility, is not evidence (<a id="fnanchor-291" href="#fn-291" class="fnanchor">291</a>).</p> - -<p>In the matter of expert testimony, as in other matters, -the law does not recognize any particular school of medicine -to the exclusion of others. The popular axiom that doctors -differ is as true now as ever it was, and so long as it continues -to be so, it is impossible for the law to recognize any -class of practitioners, or the followers of any particular -system, or method of treatment, as exclusively entitled to -be regarded as “doctors” (<a id="fnanchor-292" href="#fn-292" class="fnanchor">292</a>).</p> - -<p>The physician called to give evidence as an expert should -understand at the outset that he is not called to express -any opinion upon the merits of the case, but only on some -questions of science raised by the facts proved; that he -has no concern in the issue of the trial, and that whichever -side calls him he is in no wise the witness—much less -the advocate—of that side. He is truly an adviser of the -Court, an <i>amicus curiæ</i>, rather than a party interested in -the result of the trial. Balbus in his commentaries on the -code says, “<i>Medici proprie non sunt testes, sed est magis -judicium quam testimonium</i>.” Experts, no matter on what -<span class="xxpn" id="p116">|116|</span> -they testify, simply supply data, as to whose competency, -relevancy and weight, the Court is to judge, and as to -which the Court is finally to declare the law. Where the -facts testified to by experts are undisputed, and when they -are the results of a particular science or art, with which -such experts are familiar, then the Court accepts such -facts, and declares the law that therefrom springs; where -the facts are disputed then the jury is to determine where -the preponderance of proof lies. But when the testimony -of the expert touches either law or speculation, psychology -or ethics, then such testimony is to be received as mere -argument, which if admissible at all is to be treated simply -as if addressed to the judgment of the Court (<a id="fnanchor-293" href="#fn-293" class="fnanchor">293</a>).</p> - -<p>In his examination in chief an expert may not only -give his opinion itself, but also the grounds and reasons of -it; in fact it has been held that it is his duty to state the -reasons of his opinion and the facts on which it is based, -and if it is not sustained by them it is entitled to little -weight (<a id="fnanchor-294" href="#fn-294" class="fnanchor">294</a>).</p> - -<p>The opinion of a medical man is admissible upon, the -condition of the human system at any given time; the -nature and symptoms of disease; the nature and effects of -wounds; the cause of death; the cause or effect of an -injury; the character of the instrument with which a -wound was produced; the effect of a particular course of -treatment; the likelihood of recovery; the mental condition -of a person; and on similar subjects. For instance, -where one was indicted for endeavouring to procure abortion, -the opinion that the woman was pregnant at the time -is relevant (<a id="fnanchor-295" href="#fn-295" class="fnanchor">295</a>). Where the question was whether a certain -<span class="xxpn" id="p117">|117|</span> -blow was sufficient to cause death; or whether a wound -and fracture on the head was caused by a fall; or whether -the fractures of the skull were caused by a gun; or whether -a gun-shot wound caused death; the opinions of physicians -were held admissible (<a id="fnanchor-296" href="#fn-296" class="fnanchor">296</a>). The opinion of medical experts -will be received upon the question as to whether an abortion -has been performed, or whether certain drugs are abortives, -or certain instruments adapted to produce an abortion (<a id="fnanchor-297" href="#fn-297" class="fnanchor">297</a>). -Experts may testify, after having made a chemical analysis -of the contents of the stomach, as to the presence of poison -in the body; and, without such analysis of a mixture, a -chemist may speak of its ingredients (<a id="fnanchor-298" href="#fn-298" class="fnanchor">298</a>). Those accustomed -to make chemical and microscopic examinations of -blood and blood stains may speak as to whether certain -stains are made by human or other blood. So, too, they -may speak as to the ink in questions as to handwriting (<a id="fnanchor-299" href="#fn-299" class="fnanchor">299</a>). -So, too, they may be asked their opinions touching the -permanency of any injury forming the subject of an action. -Also, in an action for damages against a railway company, -a physician may be asked at what period after the injury -the plaintiff would be most likely to improve, if he were -going to recover at all (<a id="fnanchor-300" href="#fn-300" class="fnanchor">300</a>). Where Barber sued Meriam for -injury to his wife, and she had been treated professionally -for some weeks by Dr. H., the opinion of another physician -as to the effect of Dr. H.’s treatment was considered -<span class="xxpn" id="p118">|118|</span> -admissible (<a id="fnanchor-301" href="#fn-301" class="fnanchor">301</a>). And so in a case of malpractice a medical -man may be asked whether the practice pursued was good -practice (<a id="fnanchor-302" href="#fn-302" class="fnanchor">302</a>). He may be asked as to the nature and -properties of the medicines employed by another -physician in the case in question; also, as to the practice -with regard to consultations; also, whether, in his opinion, -a patient’s death was or was not the result of neglect or want -of skill on the part of the attending physician (<a id="fnanchor-303" href="#fn-303" class="fnanchor">303</a>). But he -cannot be asked his opinion as to the general skill of the -physician on trial; nor the general reputation of the -school which the doctor in trouble attended; nor can he -say whether, from all the evidence in the case, the defendant -was guilty of malpractice, for that is the question for -the jury; nor can he say whether a physician has honorably -and faithfully discharged his duty to his professional -brethren (<a id="fnanchor-304" href="#fn-304" class="fnanchor">304</a>).</p> - -<p>It has been held that a medical witness may give his -opinion upon new and hitherto unknown cases whenever -he swears that he can form such an opinion, even though -at the same time he should admit that precisely such a -case had never before fallen under his observation, nor -under his notice in the books. The man of science is -distinguished from the empiric in nothing more than in -not relying on specifics, and also not waiting for the exact -similitudes in things material and immaterial before forming -a judgment as to their similarity (<a id="fnanchor-305" href="#fn-305" class="fnanchor">305</a>).</p> - -<p>It must always be remembered that medical men, when -called as skilled witnesses, may only say what, in their -judgment, would be the result of certain facts submitted -to their consideration, and may not give an opinion as to -<span class="xxpn" id="p119">|119|</span> -the general merits of the case, nor on the very point which -the jury has to determine, nor on things with which a jury -may be supposed to be equally well acquainted (<a id="fnanchor-306" href="#fn-306" class="fnanchor">306</a>).</p> - -<p>As a recent writer puts it, a medical man cannot testify -as to matters not of skill in his profession, nor conclusions, -nor inferences which it is the duty of the jury to draw for -themselves. For instance, it was held that in a trial for -murder the opinions of the surgeons as to the probable -position of the deceased, when he received the blows which -caused his death, are incompetent. The Judge said that -he was not aware that surgeons were experts in the manner -of giving blows of the description in question, or determining -how the head must be placed so as most conveniently -to receive them (<a id="fnanchor-307" href="#fn-307" class="fnanchor">307</a>). Whenever the subject matter of the -enquiry is of such a character that it may be presumed to -lie within the common experience of all men of common -education, moving in ordinary walks of life, the rule is that -the opinions of experts are inadmissible, as the jury are -supposed—in all such matters—to be entirely competent -to draw the necessary inferences from the facts spoken of -by the witnesses (<a id="fnanchor-308" href="#fn-308" class="fnanchor">308</a>). Nor was the opinion of a medical -witness admitted where the question, in an action for libel, -was whether a physician in refusing to consult with the -plaintiff had honorably and faithfully discharged his duty -to the medical profession. The Judge said, the jury having -all the facts before them were as capable of forming a -judgment upon that point as the witness himself. Nor can -an expert give an opinion of the opinion of another expert (<a id="fnanchor-309" href="#fn-309" class="fnanchor">309</a>). -A medical man is considered an expert on the subject of the -<span class="xxpn" id="p120">|120|</span> -value of medical services (<a id="fnanchor-310" href="#fn-310" class="fnanchor">310</a>). But he is not so considered -when the question is one as to the amount of damages for -a breach of contract not to practise physic in a certain -town (<a id="fnanchor-311" href="#fn-311" class="fnanchor">311</a>).</p> - -<p>The rule as to excluding experts from the court room -during the examination of witnesses has been laid down, -in England, thus: “Medical or other professional witnesses, -who are summoned to give scientific opinions upon -the circumstances of the case, as established by other -testimony, will be permitted to remain in court until this -particular class of evidence commences; but then, like -ordinary witnesses, they will have to withdraw, and to come -in one by one, so as to undergo a separate examination.” -And in the United States the principle is similarly stated (<a id="fnanchor-312" href="#fn-312" class="fnanchor">312</a>).</p> - -<div class="chapter"> -<h2 class="nobreak" id="p121" -title="Chapter IX. Experts in Insanity Cases.">CHAPTER IX. -<span class="smallerblk">EXPERTS IN INSANITY CASES.</span></h2> -</div> - -<p>The opinion evidence of medical men in questions of -insanity is not, as a rule, looked upon with any very great -degree of favor by the courts who have to decide upon the -competency, relevancy and weight of the opinions uttered. -Chapman, C.J., of Massachusetts, in charging a jury said, -“While they afford great aid in determining facts, it often -happens that experts can be found to testify to anything -however absurd” (<a id="fnanchor-313" href="#fn-313" class="fnanchor">313</a>). In another insanity case another -Judge remarked, “Experience has shown that opposite -opinions of persons professing to be experts may be obtained -to any amount, and it often occurs that not only many days -but many weeks are consumed in cross-examinations to -test the skill and knowledge of such witnesses, and to test -the correctness of their opinions,” (this was the case to a -great degree in the well known Guiteau prosecution,) “thus -wasting time and wearying the patience of both Court and -jury, perplexing, instead of elucidating, the question involved -in the issue” (<a id="fnanchor-314" href="#fn-314" class="fnanchor">314</a>). As to the perplexing instead of elucidating, -a writer of the highest authority gives the following, “In -a case of alleged child murder a medical witness, being -asked for a plain opinion of the cause of death, said, that -it was owing to ‘atelectasis and a general engorgement of -the pulmonary tissue’.” And in a trial for an assault a -<span class="xxpn" id="p122">|122|</span> -surgeon, in giving his evidence, informed the Court “that -on examining the prosecutor, he found him suffering from -a severe contusion of the integument under the left orbit, -with great extravasation of blood and ecchymosis in the -surrounding cellular tissue, which was in a tumefied state, -and there was also considerable abrasion of the cuticle.” -The Judge said, “You mean, I suppose, that the man had -a bad black eye.” “Yes.” “Then why not say so at -once” (<a id="fnanchor-315" href="#fn-315" class="fnanchor">315</a>).</p> - -<p>Redfield, C.J., in his book on Wills, says, “Experience -has shown both here and in England that medical experts -differ quite as widely in their inferences and opinions as do -other witnesses. This has become so uniform a result -with the medical experts of late that they are beginning to -be regarded much in the light of hired advocates, and their -testimony as nothing more than a studied argument in -favor of the side for which they have been called. So -uniformly has this been proved in our experience that it -would excite scarcely less surprise to find an expert called -on one side testifying in any particular in favor of the -other side, than to find the counsel upon either side arguing -against their clients and in favor of their antagonists” (<a id="fnanchor-316" href="#fn-316" class="fnanchor">316</a>).</p> - -<p>A Lord Chancellor once remarked that his experience -taught him that there were very few cases of insanity in -which any good came from the examination of medical -men. Their evidence sometimes adorned a case, and gave -rise to very agreeable and interesting scientific discussions, -but after all they have little or no weight with the jury. -And Mr. Justice Davis, of the Supreme Court of Maine, -after stating that he thought juries far more trust-worthy -than experts on the subject of insanity, said, “if there is -any kind of testimony that is not only of no value but -<span class="xxpn" id="p123">|123|</span> -even worse than that, it is in my judgment that of medical -experts. They may be able to state the diagnosis of the -disease more learnedly, but upon the question whether it -had, at a given time, reached such a stage that the subject -of it was incapable of making a contract, or irresponsible -for his acts, the opinion of his neighbors, if men of good -common sense, would be worth more than that of all the -experts in the country” (<a id="fnanchor-317" href="#fn-317" class="fnanchor">317</a>). There is scarcely a single -hypothesis as to responsibility (on the part of the insane), -no matter how wild, which, among the large number of -experts who have concerned themselves with this branch -of study, has not its advocates. So says Wharton in his -valuable treatise on Mental Unsoundness (<a id="fnanchor-318" href="#fn-318" class="fnanchor">318</a>); or as Cicero -elegantly put it long ago, “<i>nihil tam absurde dici potest, -quod non dicatur ab aliquo philosophorum</i>” (<a id="fnanchor-319" href="#fn-319" class="fnanchor">319</a>).</p> - -<p>Considering these things, one is not surprised at Campbell, -C.J., in the Bambridge case, saying to three medical men -who had recorded their opinions in favor of the insanity of -the testator: “You may go home to your patients, and I -wish you may be more usefully employed there, than you -have been here;” and to the jury he remarked, “We have -had during the trial the evidence of three medical witnesses, -and I think they might as well have stayed at home and -attended to their patients.”</p> - -<p>On the other hand, Shaw, C.J., said, “such opinions (as -to sanity, etc.) when they come from persons of experience, -and in whose correctness and sobriety of judgment just -confidence can be had, are of great weight, and deserve the -respectful consideration of a jury. But the opinion of a -medical man of small experience, or of one who has crude -and visionary notions, or who has some favorite theory to -<span class="xxpn" id="p124">|124|</span> -support is entitled to very little consideration. The value -of such testimony will depend mainly upon the experience, -fidelity and impartiality of the witness who gives it” (<a id="fnanchor-320" href="#fn-320" class="fnanchor">320</a>). -And Chief Justice Gibson speaks with just emphasis of the -the deference due, in their own department, to the knowledge -obtained by men of a subject with which they have -grappled all their lives (<a id="fnanchor-321" href="#fn-321" class="fnanchor">321</a>). The Supreme Court of Texas -declared, “The opinions of medical men (on questions of -insanity) are received with great respect and consideration, -and properly so.” The Supreme Court of Pennsylvania -says, “It is well settled that the knowledge and experience -of medical experts is of great value in questions of insanity.” -Equally strong are the utterances of the Court of Appeals -of West Virginia and the Supreme Court of North Carolina (<a id="fnanchor-322" href="#fn-322" class="fnanchor">322</a>).</p> - -<p>Where the point in question is the sanity of a person, -the opinion of a medical man on the subject is, of course, -admissible when that opinion is drawn from personal -observation. This is the rule both in England and the -United States (<a id="fnanchor-323" href="#fn-323" class="fnanchor">323</a>). But a medical man may also give his -opinion on this subject, even though he has no knowledge -of the person whose sanity is in question (<a id="fnanchor-324" href="#fn-324" class="fnanchor">324</a>). It has been -suggested, that when a physician is asked his opinion on -the facts stated by other witnesses, he should be first -examined as to the particular symptoms of insanity; and as -to whether all or any, and which of the circumstances spoken -of by the witnesses upon the trial are to be regarded as -<span class="xxpn" id="p125">|125|</span> -such symptoms; then inquire of him whether any and -what combination of these circumstances would, in his -opinion, amount to proof of insanity (<a id="fnanchor-325" href="#fn-325" class="fnanchor">325</a>).</p> - -<p>It has been held to be improper to ask a medical witness -whether the person, whose sanity was in question, possessed -sufficient capacity to make a will, or to transact business, -as these are matters of law, depending on the nature -of the business (<a id="fnanchor-326" href="#fn-326" class="fnanchor">326</a>). In England such witnesses can only -speak as to the state of mind, not as to the responsibility -of a prisoner; this latter point is for the jury under the -direction of the Judge (<a id="fnanchor-327" href="#fn-327" class="fnanchor">327</a>). So, on the plea of insanity at the -time of making a contract, the opinion of the medical man -who gave the certificate on which the defendant was confined -as insane at or about the time, is only evidence for the -jury, who must judge of the grounds upon which it was -formed (<a id="fnanchor-328" href="#fn-328" class="fnanchor">328</a>).</p> - -<p>In England, an expert cannot be asked, after being present -at the whole trial, whether the defendant was insane, or -whether the act complained of was an insane act, because -these are questions for the jury and the witness must not -be placed in the jury’s place; but he may be asked whether -such and such appearances, proved by other witnesses, are -in his judgment symptoms of insanity (<a id="fnanchor-329" href="#fn-329" class="fnanchor">329</a>). The particular -facts proven by other witnesses may be taken and the expert -may be asked “assuming these facts to be true, do they in -your judgment indicate insanity on the part of the defendant -at the time the alleged act was committed?” (<a id="fnanchor-330" href="#fn-330" class="fnanchor">330</a>). -<span class="xxpn" id="p126">|126|</span></p> - -<p>As a rule the Court should not allow an expert to give -his opinion upon facts proved by a witness unless he has -heard all the testimony of the witness, because the entire -testimony may be necessary in order to enable him to form an -opinion in regard to the subject matter of inquiry (<a id="fnanchor-331" href="#fn-331" class="fnanchor">331</a>).</p> - -<p>Where the facts are disputed, experts can only be questioned -as to their opinion of a party’s sanity on a hypothetical -case, or as to certain designated facts existing in -the case supposing them to be true (<a id="fnanchor-332" href="#fn-332" class="fnanchor">332</a>).</p> - -<p>The mode in which this hypothetical question is to be put -has been much considered. In England, in the celebrated -<i>Macnaghten</i> case in answer to an inquiry of the House of -Lords, whether “a medical man conversant with the disease -of insanity, who never saw the prisoner previously to the -trial, but who was present during the whole trial and the -examination of the witnesses, can be asked his opinion as to -the state of the prisoner’s mind at the time of the commission -of the alleged crime; or his opinion whether the -prisoner was conscious at the time of doing the act, that -he was acting contrary to the law; or whether he was -labouring under any and what delusion at the time?” The -twelve judges replied, “We think the medical man, under -the circumstances supposed, cannot in strictness be asked -his opinion in the terms above stated, because each of these -questions involves the determination of the facts deposed -to, which it is for the jury to decide, and the questions are -not mere questions upon a matter of science in which case -such evidence is admissible. But where the facts are -admitted or not disputed, and the question becomes -substantially one of science only, it may be convenient to -<span class="xxpn" id="p127">|127|</span> -allow the question to be put in that general form, though -the same cannot be insisted on as a matter of right (<a id="fnanchor-333" href="#fn-333" class="fnanchor">333</a>).”</p> - -<p>In Massachusetts, Chief Justice Shaw said, “The proper -question to be put to the professional witness is this—If the -symptoms and indications testified to by the other witnesses -are proved and if the jury are satisfied of the truth of them, -whether in their opinion the party was insane, and what -was the nature and character of that insanity; what state -of mind did they indicate; and what they would expect -would be the conduct of such person in any supposed -circumstances?” (<a id="fnanchor-334" href="#fn-334" class="fnanchor">334</a>).</p> - -<p>In another well known case, the Judge said to the jury, -“It is not the province of the expert to draw inferences of -facts from the evidence, but simply to declare his opinion -on a known, or hypothetical state of facts, and therefore -the counsel on each side have put to the physicians such -states of fact as they deem warranted by the evidence, and -have taken their opinions thereon. If you consider any of -these states of facts put to the medical witnesses are proved, -then the opinions thereon are admissible evidence, to be -weighed by you, otherwise their opinions are not applicable -to the case” (<a id="fnanchor-335" href="#fn-335" class="fnanchor">335</a>).</p> - -<p>The opinions of both experts and non-experts should -have weight according to their opportunities and qualifications -for examination of the state of mind of the person -whose sanity is in question. First of all will be the family, -or the physician who has attended the patient through the -disease which is supposed to have disabled his mind; next -are those who, without special learning on the subject, have -had the best opportunities for judging—the members of his -family and those whose intimacy in the family, have given -them opportunities of seeing the patient at all times and -<span class="xxpn" id="p128">|128|</span> -noticing the alienation of his mind; and last, come those -who only occasionally and at intervals have seen him, and -whose chances of studying his moods have been small (<a id="fnanchor-336" href="#fn-336" class="fnanchor">336</a>).</p> - -<p>It has been held, in Massachusetts, that a physician who -had not made insanity a special subject, and who, when -consulted in such matters, always called in a specialist, -is not competent to give an opinion on an hypothetical -case put to him, unless he was the person’s attending -physician; then his opinion is received, as it is his duty to -make himself acquainted with the peculiarities, bodily and -mental, of a person who is the subject of his care and -advice (<a id="fnanchor-337" href="#fn-337" class="fnanchor">337</a>). And where a physician had for more than -thirty years been exclusively treating the insane, he was -not permitted to testify, as an expert, to the mental -capacity of a person—not previously insane—who was in -the last stages of disease (<a id="fnanchor-338" href="#fn-338" class="fnanchor">338</a>).</p> - -<p>One not an expert may give an opinion, founded on -observation, as to whether a person is sane or insane, -notwithstanding the general rule, that persons not medical -men cannot give their opinions as to the existence, nature -or extent of disease in any one. The exception was first -introduced in regard to the subscribing witnesses to a will, -who were permitted to speak as to the testator’s state of -mind; it has now been extended to all cases where the witness’ -acquaintance with the party whose sanity is in dispute, -or his means of observation, are sufficient to enable him -to express his opinion as to the mental condition. The -Courts of Massachusetts, Maine, New Hampshire and -Texas, however, still adhere to the old rule and admit the -evidence of non-experts only in cases of wills (<a id="fnanchor-339" href="#fn-339" class="fnanchor">339</a>).</p> - -<div class="chapter"> -<h2 class="nobreak" id="p129" -title="Chapter X. Defamation.">CHAPTER X. -<span class="smallerblk">DEFAMATION.</span></h2> -</div> - -<p>No man may disparage the reputation of another. Every -one has a right to have his good name maintained, unimpaired. -Words which produce any perceptible injury to -the reputation of another are called defamatory: and if -they are false they are actionable. False and malicious -defamatory words, if in printing, writing, pictures or signs, -and published, constitute a libel; if spoken, a slander. A -caricature may be a libel; so may a chalk-mark on a -wall, a statue, hieroglyphics, a rebus, an anagram or an -allegory, or even ironical praise.</p> - -<p>Defamatory matter, whether published in the form of -libel or slander, is actionable when it imputes a criminal -offence (or a contagious or infectious disorder) or affects the -plaintiff injuriously in his lawful profession, trade or -business, or in the discharge of a public office, or generally -when it is false and malicious, and its publication causes -damage to the plaintiff either in law or in fact. Defamatory -matter, the publication of which tends to degrade or -disparage the plaintiff, or which renders him ridiculous, or -charges him with want of honesty, humanity or veracity, or -is intended to impair his enjoyment of society, fortune or -comfort, is actionable as libel, but not as slander, unless -special damage be proved (<a id="fnanchor-340" href="#fn-340" class="fnanchor">340</a>). -<span class="xxpn" id="p130">|130|</span></p> - -<p>The person defamed by a libel has not only a civil remedy -to recover damages but he may also, in some cases, proceed -criminally by way of information or indictment and have -the defamer punished as an offender against the state. If -he proceeds by information he must in general waive his -right to bring a civil action; but he may sue for damages -after the offender has been convicted upon an indictment. -An action for libel must be brought within six years; and -an action for slander within two years, unless the words -spoken are actionable only by reason of special damage, in -which case the action may be brought at any time within -six years.</p> - -<p>Whenever a special kind of knowledge is essential to the -proper conduct of a particular profession, denying that a -man possesses such special knowledge will be actionable if -he belongs to that particular profession, but not otherwise. -Thus to say of a physician, “Thou art a drunken fool and an -ass. Thou wert never a scholar, nor even able to speak like -a scholar,” is actionable, because no man can be a good -physician unless he be a scholar (<a id="fnanchor-341" href="#fn-341" class="fnanchor">341</a>). Although one may -with impunity say of a Justice of the Peace, “He is a fool, -an ass and a beetle headed justice” (<a id="fnanchor-342" href="#fn-342" class="fnanchor">342</a>). So to say, of a midwife, -“Many have perished for her want of skill;” or, -“She is an ignorant woman, and of small practice and -very unfortunate in her way; there are few she goes to -but lie desperately ill, or die under her hands;” is actionable (<a id="fnanchor-343" href="#fn-343" class="fnanchor">343</a>). -Or of an apothecary, “He is not an apothecary; -he has not passed any examination. Several have -died that he had attended, and there have been inquests held -upon them” (<a id="fnanchor-344" href="#fn-344" class="fnanchor">344</a>). Although one may safely say of a Justice -of the Peace, “He is a blood sucker, and sucketh blood.” -<span class="xxpn" id="p131">|131|</span></p> - -<p>It is actionable to say of a person in his professional -character, “He is no doctor; he bought his diploma for -$50” (<a id="fnanchor-345" href="#fn-345" class="fnanchor">345</a>). Any words imputing to a practising medical -man, misconduct or incapacity in the discharge of his -professional duties, are actionable <i>per se</i>. Thus, it is actionable, -without proof of special damage, to accuse one of -having caused the death of any patient through his -ignorance or culpable negligence, as to say of a physician, -“He killed my child by giving it too much calomel,” or, -“He hath killed J. S. with physic, which physic was a -pill;” or, “He was the death of J. P.; he has killed his -patient with physic; it is a world of blood he has to answer -for in this town through his ignorance; he did kill a woman -and two children at Southampton; he did kill J. P. at -Petersfield;” or, as an American did, “Dr. S. killed my -children; he gave them teaspoonful doses of calomel, and -it killed them. They did not live long after they took it. -They died right off the same day” (<a id="fnanchor-346" href="#fn-346" class="fnanchor">346</a>).</p> - -<p>So it is to say of an apothecary, “He poisoned my -uncle; I will have him digged up again, and hang him,” -or, “He killed my child; it was the saline injection that -did it;” or, “I was told he had given my child too much -mercury, and poisoned it; otherwise, it would have got -well” (<a id="fnanchor-347" href="#fn-347" class="fnanchor">347</a>).</p> - -<p>So it is actionable to say of a surgeon and accoucheur, -“He is a bad character; none of the medical men here -will meet him.” As such words impart the want of a -necessary qualification for a surgeon in the ordinary discharge -of his professional duties; or, “Dr. Tweedie has -honorably and faithfully discharged his duties to his -<span class="xxpn" id="p132">|132|</span> -medical brethren in refusing to act or consult with Ramadge (a -physician), and we hope every one else will do the same” (<a id="fnanchor-348" href="#fn-348" class="fnanchor">348</a>). -Or to call a practising medical man “a quack,” “a quacksalver,” -“an empiric,” or “a mountebank,” or to say of -him, “Thou gavest physic which thou knewest to be contrary -to the disease,” or “Thou art no good subject, for -thou poisonedst A. F.’s wound, to get more money of him.” -Under the New York Statutes, a homœopathic physician may -maintain an action for being called a quack (<a id="fnanchor-349" href="#fn-349" class="fnanchor">349</a>). And it -seems that an action will lie, without averment of special -damages, for slander imputing to a physician, that he has -taken advantage of his character as a physician to abuse -the confidence reposed in him, and commit acts of criminal -conversation with a patient (<a id="fnanchor-350" href="#fn-350" class="fnanchor">350</a>).</p> - -<p>In the case of libel, any words will be presumed defamatory -which expose the plaintiff to hatred, contempt, ridicule -or obloquy, which tend to injure him in his professional -trade, or cause him to be shunned or avoided by his neighbours. -Thus, to advertise falsely that certain quack -medicines, “consumption pills,” were prepared by a physician -of eminence, is a libel upon such physician (<a id="fnanchor-351" href="#fn-351" class="fnanchor">351</a>).</p> - -<p>Whenever a medical man brings forward some new method -of treatment and advertises it largely as the best, or only -cure for some particular disease, or for all diseases at once, -he may be said to invite public attention, and a newspaper -writer is justified in warning the public against such advertisers, -and in exposing the absurdity of their professions, -provided he does so fairly and with reasonable judgment (<a id="fnanchor-352" href="#fn-352" class="fnanchor">352</a>). -<span class="xxpn" id="p133">|133|</span> -A medical man, who had obtained a diploma and the degree -of M.D., from an American College, advertised in England -most extensively a new and infallible cure for consumption. -The <i>Pall Mall Gazette</i> published a leading article on these -advertisements, in which they called the advertiser a quack -and an impostor, and compared him to scoundrels “who -pass bad coin.” This was considered as overstepping the -limits of fair criticism, and a verdict was given for the -plaintiff, with damages, one farthing (<a id="fnanchor-353" href="#fn-353" class="fnanchor">353</a>). So where the -editor of the <i>Lancet</i> attacked the editor of a rival paper, -<i>The London Medical and Physical Journal</i>, by rancorous -aspersions on his private character, not fairly called for by -what the plaintiff had done as an editor, the plaintiff -recovered a verdict of £5 (<a id="fnanchor-354" href="#fn-354" class="fnanchor">354</a>).</p> - -<p>On the other hand, it is not actionable to say of a surgeon, -“He did poison the wound of his patient,” without some -averment that this was improper treatment, for it might be -proper for the cure of it. Nor to say of an apothecary, -“He made up the medicine for my child wrong, through -jealousy, because I would not allow him to use his own -judgment” (<a id="fnanchor-355" href="#fn-355" class="fnanchor">355</a>). Nor to charge a physician or surgeon with -“malpractice,” if it appear that the word was not used or -understood in a technical sense; and to charge a physician -or surgeon with mere want of skill, or with ignorance or -neglect, is not actionable <i>per se</i>, though untrue, unless the -charge be of gross want of skill, or the like, so as to imply -general unfitness (<a id="fnanchor-356" href="#fn-356" class="fnanchor">356</a>).</p> - -<p>Nor is it actionable to call a person who practises medicine -or surgery, without legal qualification, a “quack or an -<span class="xxpn" id="p134">|134|</span> -impostor,” for the law only protects lawful employment (<a id="fnanchor-357" href="#fn-357" class="fnanchor">357</a>). -Even though a medical man be duly registered in Great -Britain, still, if he is practising in a colony which requires -registration without complying with the colonial law, he -may safely be called “a quack,” “a charlatan,” “a -scoundrel not to be entrusted with the lives of people” (<a id="fnanchor-358" href="#fn-358" class="fnanchor">358</a>).</p> - -<p>Words imputing immoral conduct, profligacy or adultery, -even when spoken of one holding an office or carrying on a -profession or business, are not actionable unless they “touch -him” in that office, profession or business. Thus, if -adultery is alleged of a clergyman, it will be actionable, -because if the charge were true, it would be a ground -for degradation or deprivation, as it would prove him unfit -to hold his benefice, or to continue the active duties of his -profession. But if the same words are spoken of a physician, -they will not be actionable without proof of special -damage, as they do not necessarily affect the plaintiff in -relation to his trade or profession (<a id="fnanchor-359" href="#fn-359" class="fnanchor">359</a>).</p> - -<p>Nor unless the words are spoken in connection with the -professional duties of the plaintiff will an action lie for -the words, “He is so steady drunk, he cannot get business -any more;” or “He is a twopenny bleeder” (<a id="fnanchor-360" href="#fn-360" class="fnanchor">360</a>).</p> - -<p>It is no libel to write of a physician that he is in the -habit of meeting homœopathists in consultation (<a id="fnanchor-361" href="#fn-361" class="fnanchor">361</a>).</p> - -<p>Where the plaintiff considers that the words spoken touch -him in his profession or trade, he must always aver in the -pleadings that he was carrying on the profession of a -physician or surgeon, or the trade of a druggist, at the -<span class="xxpn" id="p135">|135|</span> -time the words were spoken. Sometimes this is admitted -by the slander itself, and if so, evidence is of course -unnecessary in proof of this averment. But in other cases, -unless it is admitted on the pleadings, evidence must be -given at the trial of the special character in which the -plaintiff sues. As a rule, it is sufficient for the plaintiff to -prove that he was engaged in the profession or trade, -without proving any appointment thereto, or producing a -diploma or other formal qualification. For the maxim -<i>omnia presumuntur rite esse acta</i> applies. But if the very -slander complained of imputes to the medical practitioner -that he is a quack or an impostor, not legally qualified for -practice; or if the plaintiff aver that he is a physician and -has duly taken his degree, then the plaintiff at the trial -must be prepared to prove his qualification strictly by -producing his diploma or certificate. In some cases the mere -production of the diploma will not be sufficient proof of the -plaintiff’s having the degree, but it may be necessary to -prove that the seal affixed is the seal of a university having -power to grant degrees; or in the case of the production of -a copy of the diploma, that it has been compared with the -original (<a id="fnanchor-362" href="#fn-362" class="fnanchor">362</a>).</p> - -<p>Whether or no the words were spoken of the plaintiff in -the way of his business is a question for the jury to determine -at the trial. There should always be an averment in -the statement of claim, that the words were so spoken, and -it should also be shewn in what manner the words were -connected by the speaker with the profession (<a id="fnanchor-363" href="#fn-363" class="fnanchor">363</a>).</p> - -<p>Medical practitioners are of course equally liable with -other men to an action for defamation, in respect of any -<span class="xxpn" id="p136">|136|</span> -false and malicious communication, whether oral or written, -made by them to the damage of another, in law or in fact; -circumstances, however, frequently arise where, from the -nature of their employment, it becomes their duty or interest -to make some communication prejudicial to the character -or conduct of another, and in such cases, where the occasion -on which the communication was made rebuts the presumption -of malice, (which the law infers from such a statement,) -such communication is said to be privileged, and therefore, -in order to sustain an action for defamation, the plaintiff -must prove that the defendant was actuated by express or -actual malice—that is, malice independent of the occasion -on which the communication was made. The legal canon -is, that a communication made <i>bona fide</i>, upon any subject -matter in which the party communicating has an interest, -or in reference to which he has a duty, is privileged, if made -to a person having a corresponding interest or duty, although -it contains criminatory matter, which (without this privilege) -would be slanderous and actionable. This applies, moreover, -though the duty be not a legal one, but only a moral -or social duty of imperfect obligation, and also where the -communication is made to a person not in fact having such -interest or duty, but who might reasonably be, and is -supposed by the party making the communication to have -such interest or duty (<a id="fnanchor-364" href="#fn-364" class="fnanchor">364</a>). Even where the evidence of duty -is not present to the mind, but the speaker is impelled by a -sense of propriety, on which he does not pause to reflect, and -which he refers to no special motive, nevertheless, if his -conduct in speaking the words be within the occasion of -interest or of duty which is capable of protecting, the communication -will be considered privileged (<a id="fnanchor-365" href="#fn-365" class="fnanchor">365</a>).</p> - -<p>Words spoken by the medical officer of a college concerning -<span class="xxpn" id="p137">|137|</span> -the meat furnished to the institution; and -words used by the medical attendant of a poor-law union about the wine -supplied to the inmates, are privileged, in the absence of proof of -actual malice (<a id="fnanchor-366" href="#fn-366" class="fnanchor">366</a>). A statement made by a physician that an unmarried -woman is pregnant is not a privileged communication, unless made in -good faith to one who is reasonably entitled to receive the information -(<a id="fnanchor-367" href="#fn-367" class="fnanchor">367</a>).</p> - -<div class="chapter"> -<h2 class="nobreak" id="p138" -title="Chapter XI. Relations With Patients."> -CHAPTER XI. -<span class="smallerblk">RELATIONS WITH PATIENTS.</span></h2> -</div> - -<p>It is a well settled doctrine that where one occupies a -position which naturally gives him the confidence of another, -or which in any way gives him an influence, or an undue -advantage over the other, transactions between them require -something more to give them validity than is necessary in -other cases. The mere fact of the existence of such a relationship -as naturally creates influence over the mind will -lead the courts to infer the probability of undue influence -having been exerted. Confidence has been held to imply the -opportunity for influence, and when established, dispenses -with any more direct proof of influence. In such cases the -<i>onus</i> is cast upon the person occupying such a relationship -to establish the perfect fairness and equity of the transaction. -He must shew that the other acted after full and sufficient -deliberation and with all the information that it was -material for him to have, in order to guide his conduct, and -that he had either independent and disinterested advice, or -as ample protection as such advice could have given -him (<a id="fnanchor-368" href="#fn-368" class="fnanchor">368</a>). -<i>Rhodes</i> v. <i>Bates</i> -(<a id="fnanchor-369" href="#fn-369" class="fnanchor">369</a>) -lays it down that the donor -must have had competent and independent advice.</p> - -<p>The relation between a medical man and his patient is -one in which the probability of undue influence is inferred; -<span class="xxpn" id="p139">|139|</span> -and so in dealings with their patients the acts of physicians -are watched with great jealousy; not because the Court -blames and discountenances the influence flowing from such -relation, but because it holds that this influence should be -exerted for the benefit of the person subject to it, and not -for the advantage of the person possessing it (<a id="fnanchor-370" href="#fn-370" class="fnanchor">370</a>). The discontinuance -of the relationship is only material if the -influence has ceased with the relation; and the relation -does not necessarily cease because the patient has not -medicine actually administered to him at the time (<a id="fnanchor-371" href="#fn-371" class="fnanchor">371</a>).</p> - -<p>Where a surgeon and apothecary obtained from a patient, -eighty-five years old, an agreement to pay him £25,000, in -consideration of past medical services, duly charged and paid -for, and the promise of future medical and surgical assistance -until death without charge, and kept the matter -concealed until after the death of the patient, the Court, -on the prayer of the patient’s executor, ordered the medical -man to give up the agreement to be cancelled. So, when -an octogenarian patient conveyed by deed of gift a property -worth £1,000 to his physician, who was also his intimate -friend, and the son of his benefactor, the Court set aside -the deed for fraud. (In this case the consideration named -in this deed was not the true one.) And even where a -patient gave to his surgeon an annuity of £100 for the surgeon’s -life, in consideration that he would live with him -and give him the benefit of his professional assistance -during his (the donor’s) life, it being shown that the surgeon -had been told by an eminent physician, just before the -deeds were drawn, that the patient could not recover or live -long, and that the surgeon himself, about the same time, -had said the patient could not live more than a month -or so; the Court held the instruments could not be -<span class="xxpn" id="p140">|140|</span> -maintained (<a id="fnanchor-372" href="#fn-372" class="fnanchor">372</a>). A patient, aged, feeble, deaf and of very -weak mind, bestowed all his estate on the attending physician, -who lived with him, and had controlling influence over -him, for an extremely trifling compensation. The transaction -was set aside, the Court saying: “Owing to the relation -which the parties sustained towards each other, the deed -was presumptively the result of undue influence, and therefore -<i>prima facie</i> void for that reason. It has been repeatedly -declared by learned chancellors that the mere relation -of patient and medical adviser was sufficient to avoid the -contracts of the former made with the latter during the -continuance of such relation” (<a id="fnanchor-373" href="#fn-373" class="fnanchor">373</a>).</p> - -<p>A security given by an old man for £262 10<i>s.</i> to a dentist, -in consideration of his old teeth being kept in order and -new ones being supplied during the remainder of his life, -had to be given up (<a id="fnanchor-374" href="#fn-374" class="fnanchor">374</a>). And if a man pays an exorbitant -bill to a doctor, the Court will grant him relief; and it will -be no answer to his asking his money back to say that he -intended to be liberal, unless such intentions can be clearly -shown (<a id="fnanchor-375" href="#fn-375" class="fnanchor">375</a>). Even a sale to a patient by the medical man -under whose care he is will be set aside if at an exorbitant -price, and the purchaser has had no independent advice (<a id="fnanchor-376" href="#fn-376" class="fnanchor">376</a>).</p> - -<p>But where the evidence showed that the patient’s own -attorney prepared the papers, that he had independent -advice, and understood what he was doing, and exercised -his free will, and that the medical man had long attended -him, the Court refused to set aside the deed, although -the patient was eighty years of age (<a id="fnanchor-377" href="#fn-377" class="fnanchor">377</a>). And although a -<span class="xxpn" id="p141">|141|</span> -gift made to a physician may be voidable, because of his -standing in a confidential relation to the donor, a patient, -yet, if after the confidential relation has ceased to exist, -the donor intentionally elects to abide by the gift, and does, -in fact, abide by it, it cannot be impeached after his death, -even if it is not proved that the patient was aware that the -gift was voidable at his election (<a id="fnanchor-378" href="#fn-378" class="fnanchor">378</a>).</p> - -<p>There is, of course, nothing in the relation of medical -attendant and patient which can prevent the one from -entering into a contract with the other, where the transaction -proceeds openly and fairly, and the relation of physician -and patient has, in reality, no bearing upon it (<a id="fnanchor-379" href="#fn-379" class="fnanchor">379</a>). -In the case of a sale by a patient to a physician, where -there was no proof of inadequacy of price, the transaction -was sustained (<a id="fnanchor-380" href="#fn-380" class="fnanchor">380</a>).</p> - -<p>A strong case must be made to set aside a will on the -ground of undue influence. Influence is not sufficient: -there must be such a degree of influence as deprives the -testator of the proper mastery over his faculties (<a id="fnanchor-381" href="#fn-381" class="fnanchor">381</a>). To -invalidate a will, on the ground of undue influence, it must -be shown that it was practised with respect to the will -itself, or so contemporaneously with the will, or connected -with it, as by almost necessary presumption to affect it; -and flattery and obsequiousness, however degrading, will -not constitute such an undue influence as will affect the -acts of a capable testatrix (<a id="fnanchor-382" href="#fn-382" class="fnanchor">382</a>). Many wills made in favour -of medical men by their patients have been sustained, -although disputed, and that even in cases where the patients -have been aged, infirm women, with impaired minds (<a id="fnanchor-383" href="#fn-383" class="fnanchor">383</a>). -<span class="xxpn" id="p142">|142|</span></p> - -<p>A physician, however, may fail to obtain the benefits -which a grateful patient has wished him to have under a -will, if—as was done in one case—after a long attendance -on a patient, he thinks fit, when she is almost on her deathbed, -to prepare and procure the execution of a will by -which he becomes the principal object of her bounty, to -the exclusion of her near relatives; and to do this without -the intervention of any solicitor or other person competent -to give her advice, and to guard her against undue influence; -for in such a case the interests of the public require -that his conduct should be regarded by Courts of Justice -with the utmost jealousy (<a id="fnanchor-384" href="#fn-384" class="fnanchor">384</a>). In another case, it was said -that although there is no rule of law which forbids a man -to bequeath his property to his medical attendant, yet it is -not a favourable circumstance for one in such a confidential -position, with respect to a patient labouring under a severe -disease, to take a large benefit under such patient’s will, -more particularly, if it be executed in secrecy and the whole -transaction assumes the character of a clandestine proceeding, -and in such a case the <i>onus</i> will lie very heavily -upon the party benefited to maintain the validity of the -will (<a id="fnanchor-385" href="#fn-385" class="fnanchor">385</a>).</p> - -<p>Clairvoyant physicians may also get into trouble. An -action was brought against one to set aside a marriage and -a conveyance of property worth $25,000. The patient was -old, feeble, deaf, childish and a firm spiritualist. The -clairvoyant was a woman who pretended to be very modest -and bashful and able to cure the deafness. After a course -of treatment, mainly by manipulation, she told the old man -that the spirits said that they must be married within two -weeks, or something dreadful “would step in between them.” -<span class="xxpn" id="p143">|143|</span> -By misrepresentations concerning her character and her -friends she won the old man and his property. After the -honeymoon the patient came to his senses, and prayed to -get back his liberty and possessions, because of the fraud -used. The Court granted his prayer (<a id="fnanchor-386" href="#fn-386" class="fnanchor">386</a>).</p> - -<p>To promise a cure is unprofessional, and to obtain money -on the faith of such a promise is sometimes dangerous. -Brown falsely represented himself to A., an ignorant negro, -to be a practising physician, and that he had restored sight -to the blind. He persuaded A. that his (A.’s) house was -infected with poison, and that it was in the bed occupied -by his granddaughter, that she was poisoned, and that he -could remove the poison if he was paid for so doing. A. -gave him $22 to remove it. The Court held that Brown -had been guilty of obtaining money under false pretences (<a id="fnanchor-387" href="#fn-387" class="fnanchor">387</a>).</p> - -<p>A physician should take all possible care to prevent the -spread of smallpox or any other contagious disease, and use -all such precautionary measures as may appear desirable. -So, where the paper upon the walls of a room in which -there had been smallpox patients had become so soiled and -smeared with the smallpox virus as to make its removal -necessary, a physician or other attendant may order the -paper to be torn down; and the landlord cannot successfully -maintain an action against the physician for doing -this (<a id="fnanchor-388" href="#fn-388" class="fnanchor">388</a>).</p> - -<p>Apparently a surgeon may retain the limbs he cuts off a -patient, upon the ground that parts of the body when -severed become dead, and at common law there is no -property in a dead human body. The point was once contested -in Washington (<a id="fnanchor-389" href="#fn-389" class="fnanchor">389</a>). -<span class="xxpn" id="p144">|144|</span></p> - -<p>A surgeon who attends a duel, although to save by his -skill if possible the lives therein imperilled, will be held -guilty of aiding and abetting the principal offender in the -event of death ensuing (<a id="fnanchor-390" href="#fn-390" class="fnanchor">390</a>).</p> - -<p>If a medical practitioner wilfully injures a patient he is -liable to be indicted for an assault, and if death ensue from -the injuries so inflicted he may be indicted for murder. -And this is so even though the patient might have submitted -at the time from the supposition that the treatment -was for his good. Having or attempting to have carnal -connection with a female patient under pretence of treating -her medically is an assault (<a id="fnanchor-391" href="#fn-391" class="fnanchor">391</a>). Making a female patient -strip naked, under pretence that the defendant, a medical -practitioner, cannot otherwise judge of her illness, if he -himself takes off her clothes, contrary to her wishes, is an -assault. In this case the jury found that the defendant -had stripped the girl wantonly, and not from any belief -that it was necessary (<a id="fnanchor-392" href="#fn-392" class="fnanchor">392</a>).</p> - -<p>Where a physician takes an unprofessional unmarried -man with him to attend a case of confinement, and no real -necessity exists for the latter’s assistance or presence, both -are liable for damages; and it makes no difference that the -patient, or her husband, supposed at the time that the -intruder was a medical man, and therefore submitted -without objection to his presence; or that the intruder -accompanied the physician reluctantly on a dark and -stormy night to carry a lantern or umbrella, and some -instruments, and that there was only one room in the -house. The Court remarked: “Dr. De May therefore took -an unprofessional young unmarried man with him, introduced -and permitted him to remain in the house of the -plaintiff, when it was apparent that he could hear at least, -<span class="xxpn" id="p145">|145|</span> -if not see, all that was said and done, and, as the jury -must have found under the instructions given, without -either the plaintiff or her husband having any knowledge -or reason to believe the true character of the third party. -It would be shocking to our sense of right, justice and -propriety even to doubt that for such an act the law would -afford an ample remedy. To the plaintiff the occasion was -a most sacred one, and no one had a right to intrude unless -invited, or because of some real and pressing necessity -which it is not pretended existed in this case. The plaintiff -had a legal right to the privacy of her apartment at -such a time, and the law secures to her this right by -requiring others to observe it and to abstain from its -violation. The fact that at the time she consented to the -presence of Scattergood, supposing him to be a physician, -does not preclude her from maintaining an action, and -recovering substantial damages upon afterward ascertaining -his true character. In obtaining admission at such a time -and under such circumstances, without fully disclosing his -true character, both parties were guilty of deceit, and the -wrong thus done entitles the injured party to recover the -damages afterward sustained, from shame and mortification, -upon discovering the true character of the defendants.” -The action was brought by the wife (<a id="fnanchor-393" href="#fn-393" class="fnanchor">393</a>).</p> - -<p>If physicians, who have certified to the insanity of a -person, have not made the enquiry and examination which -the statute requires, or if their evidence and certificate in -any respect of form or substance are not sufficient to justify -a commitment to an asylum, the authorities should not -commit, and if they do it is their fault and not that of -the physicians, provided the latter have stated facts and -opinions truly and have acted with due professional care -and skill (<a id="fnanchor-394" href="#fn-394" class="fnanchor">394</a>). -<span class="xxpn" id="p146">|146|</span></p> - -<p>If a medical man takes upon himself the responsibility -of imprisoning a person on the ground of insanity, upon -mere statements made to him by others, he will be liable -to an action, and also for an assault, unless he can indeed -show that the party imprisoned was insane at the time (<a id="fnanchor-395" href="#fn-395" class="fnanchor">395</a>). -He is not liable for an assault if he has signed a certificate -under the Lunacy Acts and has done nothing more towards -causing the confinement of the alleged lunatic (<a id="fnanchor-396" href="#fn-396" class="fnanchor">396</a>). A -medical man or other person may justify an assault where -it is committed for the purpose of putting a restraint -upon a dangerous lunatic in such a state that it is likely -he may do mischief to some one (<a id="fnanchor-397" href="#fn-397" class="fnanchor">397</a>).</p> - -<p>In Ontario, except under order of the Lieutenant-Governor, -no one can be admitted into a lunatic asylum without -the certificate of three medical men, each attested by the -signatures of two subscribing witnesses. Their certificates -must state a personal and separate examination, and that -after due enquiry the patient was found insane; and the -physicians must also specify the facts upon which they -formed their opinion of the insanity. In England, except -in the case of paupers, two certificates are required (<a id="fnanchor-398" href="#fn-398" class="fnanchor">398</a>).</p> - -<p>The practice of abortion is forbidden by the oath of -Hippocrates. The act is recognized as a crime in almost -every code of medical ethics: its known commission has -always been followed by ignominious expulsion from medical -fellowship and fraternity. At Common Law a child <i>en -ventre sa mere</i> is not considered a person the killing of -whom is murder; but if one, intending to procure abortion, -causes a child to be born so soon that it cannot live, and -<span class="xxpn" id="p147">|147|</span> -it dies in consequence, it is murder (<a id="fnanchor-399" href="#fn-399" class="fnanchor">399</a>). And it is murder -if one, attempting to procure abortion, either by means of -drugs or instruments, cause the death of the woman (<a id="fnanchor-400" href="#fn-400" class="fnanchor">400</a>).</p> - -<p>In most civilized countries it is now either a felony, or -grave misdemeanor, to attempt to procure the miscarriage -of a woman by any means; or to supply or procure any -thing knowing that it is intended to be unlawfully used or -employed to procure a miscarriage (<a id="fnanchor-401" href="#fn-401" class="fnanchor">401</a>). In some States -the crime of abortion may be committed at any stage of -pregnancy (<a id="fnanchor-402" href="#fn-402" class="fnanchor">402</a>). The thing prescribed must be noxious in -its nature, but it is not necessary to prove that it will -produce miscarriage (<a id="fnanchor-403" href="#fn-403" class="fnanchor">403</a>).</p> - -<p>The burden of shewing that the use of instruments to -produce abortion was necessary to save the life of the -woman is on the accused (<a id="fnanchor-404" href="#fn-404" class="fnanchor">404</a>).</p> - -<p>It is an indictable offence for a physician, or any one -else, unlawfully and injuriously to carry along or to expose -in a public highway, on which persons are passing, and -near to the habitations of others, any person infected with -the small-pox, or any contagious disorder; and it is for -the accused to shew that the object of the carrying or -exposure was lawful (<a id="fnanchor-405" href="#fn-405" class="fnanchor">405</a>).</p> - -<p>In England, since 1840, it has been an indictable offence -to innoculate for the small-pox (<a id="fnanchor-406" href="#fn-406" class="fnanchor">406</a>). So, too, it has been -in Canada for a number of years (<a id="fnanchor-407" href="#fn-407" class="fnanchor">407</a>). -<span class="xxpn" id="p148">|148|</span></p> - -<p>It has been held in the State of Alabama, that where a -special prohibitory Act does not except the practising -physician from its operation, he is liable if he administers -intoxicating bitters to his patient, but not for using liquors -necessary in compounding medicine manufactured and sold -by him. The application of any other rule, it was said by -the Court, would be fraught with difficulty, if not impracticability. -So, too, in Kansas (<a id="fnanchor-408" href="#fn-408" class="fnanchor">408</a>).</p> - -<p>Any registered practitioner who has been convicted of -felony shall forfeit his right to registration, and the Medical -Council may cause his name to be erased from the register; -and if any one who has been convicted of felony presents -himself for registration the registrar may refuse registration. -But one’s name cannot legally be removed from -the register without notice and an opportunity of being -heard (<a id="fnanchor-409" href="#fn-409" class="fnanchor">409</a>).</p> - -<p>A person who has met with personal injuries must -exercise the same degree of care in the employment of a -physician and surgeon, and in procuring and submitting -to proper medical treatment, as a prudent and reasonable -man would in any other matter; for those persons liable -for the original injury will not be responsible for the further -damage arising from the improper selection of a physician (<a id="fnanchor-410" href="#fn-410" class="fnanchor">410</a>).</p> - -<p>If a family doctor, or the surgeon of a company or -society, on leaving home, recommends in case of need, -some other physician, who is not, however, in any sense in -his employment, it does not make him in any way liable -for injuries arising from the latter’s want of skill (<a id="fnanchor-411" href="#fn-411" class="fnanchor">411</a>).</p> - -<div class="chapter"> -<h2 class="nobreak" id="p149" -title="Chapter XII. Dissection and Resurrection."> -CHAPTER XII. -<span class="smallerblk">DISSECTION AND RESURRECTION.</span></h2> -</div> - -<p>A knowledge of the causes and nature of sundry diseases -which affect the human body, and of the best methods of -treating and curing such diseases, and of healing and repairing -divers wounds and injuries to which the human -frame is liable, cannot be acquired without the aid of -anatomical examination. So saith the preamble to the -British Anatomy Act of 1832. The chief hindrances to the -pursuit of the study of anatomy have arisen from ignorance -and superstition. A prejudice has prevailed in all nations -against the violation of the human body after death. Even -now, only philosophers like Jeremy Bentham are willing to -have their bodies dissected by their friends. Simple association -of thoughts causes the remains of a dead kinsman -or friend to be treated with respect and tenderness; in the -same way, the horror of death attaching to anything connected -with the dead, and the religious idea that the soul -outlives the body, and continues in a ghostly way to retain -a connection with its old habitation of clay, have led to the -respectful disposal of the corpse among most nations.</p> - -<p>The Ptolemy princes Philadelphus and Euergetes, who -enabled their physicians to dissect the human body, and -prevented the prejudices of ignorance and superstition from -compromising the welfare of the human race, were far in -advance of their times. Long after their day, the Koran -denounced as unclean the person who touched a corpse, and -<span class="xxpn" id="p150">|150|</span> -the rules of Islamism still forbid dissection; the old Moslem -doctors only found opportunities of studying the bones of -the human body in the cemeteries. Not until the days of -Henry VIII. did the law make any provision for the -cultivation and practice of the art of dissection. In 1540, -more perhaps to strike terror into malefactors, than from -any enlightened notion of forwarding knowledge, the Legislature -gave permission to the masters of the Mystery of -Barbers and Surgeons of London to take annually four -persons, put to death for felony, for anatomies, and to make -incision of the same dead bodies, or otherwise to order the -same, after their discretions, at their pleasure, for their -further insight and better knowledge, instruction, insight, -learning, and experience, in the science or faculty of -surgery (<a id="fnanchor-412" href="#fn-412" class="fnanchor">412</a>).</p> - -<p>Elizabeth, in 1565, made a similar grant to the College of -Physicians, that they, observing all decent respect for -human flesh, “might dissect the four felons.” By 25 Geo. II. -cap. 37 (1752), the bodies of all murderers executed in London -and Westminster were to be given to the surgeons to -be dissected and anatomised. But the legal supply of -human bodies for anatomical examination still continued -insufficient fully to provide the means of knowledge; and -in order to furnish the necessary subjects, divers great and -grievous crimes and murders were committed, the money -paid, being the incentive. So, in 1832, the Anatomy Act (<a id="fnanchor-413" href="#fn-413" class="fnanchor">413</a>) -was passed. This Act proves clearly that Parliament -regarded anatomy as a legal practice, and it provides for -the licensing of those practising anatomy, allows any -executor or other person, having lawful possession of any -dead person (and not being an undertaker, etc.), to hand -over the body for dissection (respect, however, being had to -<span class="xxpn" id="p151">|151|</span> -the wishes of the deceased or his known relatives). Inspectorships -of schools of anatomy were likewise established.</p> - -<p>In Canada, the bodies of convicts who die in a penitentiary, -if unclaimed by the relatives, may be delivered to the professors -of anatomy in any medical college, or to an inspector -of anatomy (<a id="fnanchor-414" href="#fn-414" class="fnanchor">414</a>).</p> - -<p>The first defender of the faith, Henry VIII., the illustrious -Elizabeth of most famous memory, and the enlightened -James, had several statutes passed in which the disinterring -of the dead is mentioned, but they were chiefly enactments -against witchcraft, conjuration, the use of dead men’s -bones, and all sorts of sorceries. The parliament of James -solemnly enacted, “that if any person should consult, -covenant with, entertain, employ, feed or reward any evil -and wicked spirit, to or for any intent or purpose, or take -up any dead man, woman, or child out of his, her, or their -grave, or any other place where the dead body rested, or -the skin, bone, or any other part of any dead person, to be -employed, or used, in any manner of witchcraft, sorcery, -charm, or enchantment * * every such offender, his aiders, -abettors, and counsellors, should suffer death as felons, and -should lose the privilege and benefit of clergy and sanctuary” (<a id="fnanchor-415" href="#fn-415" class="fnanchor">415</a>). -This philosophical enactment graced the statute -book until the ninth year of George II. While these -statutes against sorcery were in force, and the Judges still -imbued with the superstitious spirit of the age, the presumption -was very strong that bodies disinterred were -removed for purposes of enchantment or witchcraft, and -resurrection-men and students of anatomy, as their aiders -and abettors, were in imminent jeopardy of suffering as -felons; but as the belief in sorcery grew weaker the prospect -of these men grew brighter, and they were relieved -from the great danger that they ran. -<span class="xxpn" id="p152">|152|</span></p> - -<p>Under the laws of Constantine, a woman could without -blame repudiate her husband, if he was guilty of violating -the tombs of the dead; and we are told that the Ostrogoths -allowed divorce for this same reason. And among the -Franks, one who took the clothing from a buried corpse -was banished from society, and none could relieve his wants -until the relations of the deceased consented (<a id="fnanchor-416" href="#fn-416" class="fnanchor">416</a>). As long -ago as the tenth year of James I., at the assizes in Leicester, -a man was tried for stealing winding sheets. Sir Edward -Coke tells the matter thus: “One William Hain had in the -night digged up the graves of divers several men and of one -woman, and took the winding sheets from the bodies and -buried the bodies again; and I advising hereupon, for the -rareness of the case, consulted with the Judges at Sergeants’ -Inn on Fleet street, when we all resolved, that the property -of the sheets was in the executors, administrators, or other -owner of them, for the dead body is not capable of any -property, and the property of the sheets must be in somebody, -and according to this resolution he was indicted of -felony in the next assizes; but the jury found it but petit -larceny, for which he was whipped, as he well deserved.” -These learned people thought that if a winding sheet had -been gratuitously furnished by a friend the property remained -in the donor. For, quoth they, the winding sheet -must be the property of somebody; a dead body, being but -a lump of earth, hath no capacity; also, it is no gift to the -person, but bestowed on the body for the reverence toward -it, to express the hope of the resurrection; also, a man cannot -relinquish the property he hath to his goods unless they be -vested in another (<a id="fnanchor-417" href="#fn-417" class="fnanchor">417</a>). Subsequently, lawyers have generally -concurred in these opinions; the coffin, too, is the property -of the personal representative of the deceased (<a id="fnanchor-418" href="#fn-418" class="fnanchor">418</a>). -<span class="xxpn" id="p153">|153|</span></p> - -<p>A still more interesting question arises as to who owns -the corpse. It has been generally held that there is no -property in it. Blackstone remarks, that, although the heir -has a property in the monuments or escutcheons of his ancestor, -he has none in his body or ashes. According to the -law of England, after the death of a man, his executors have -a right to the possession and custody of his body (although -they have no property in it) until it is properly buried. -A man cannot dispose of his body by will or any other -instrument (<a id="fnanchor-419" href="#fn-419" class="fnanchor">419</a>). A contract for the sale of a corpse, even -to doctors, will not be enforced; it cannot be made an -article of merchandise (<a id="fnanchor-420" href="#fn-420" class="fnanchor">420</a>). The relatives have the right -of interring the body, and when this right is once exercised -they have no further interest in it than to protect it from -injury (<a id="fnanchor-421" href="#fn-421" class="fnanchor">421</a>). In Indiana, the Courts have diverged somewhat -from the beaten track, and held that the surviving relatives -are entitled to the corpse in the order of inheritance as -property, and that they have a right to dispose of it as such, -subject to whatever burial regulations are reasonable and -proper for the public health and advantage (<a id="fnanchor-422" href="#fn-422" class="fnanchor">422</a>).</p> - -<p>The English Anatomy Act, as has been seen, gives the -executor or other person having the lawful possession of the -body of any deceased person power to permit it to be -anatomically examined. In England, the earlier writers on -criminal law say nothing of the taking of a body from the -grave, except that it is not theft. East, however, calls it a -great misdemeanor; and there have been several convictions -for this as an offence at Common Law. Doubtless the belief -that it was an offence at Common Law was nearly connected -<span class="xxpn" id="p154">|154|</span> -with the idea of the bodies being used for the dark purposes -of the necromancer, and it would appear that no distinct -authority upon the abstract point has been found in -ancient legal records (<a id="fnanchor-423" href="#fn-423" class="fnanchor">423</a>). It is still an indictable offence, -punishable with fine and imprisonment, or both (<a id="fnanchor-424" href="#fn-424" class="fnanchor">424</a>). And -this even though the body has been taken in the interest -of science, and for the purpose of dissection; or even if the -motives of the offender were pious and laudable. In <i>Lynn’s</i> -case—(Lynn was indicted for entering a burying ground, -taking a coffin up, and carrying away a corpse for the purposes -of dissection)—it was urged that the offence was cognizable -only by the ecclesiastical courts; but the Judges of the -King’s Bench said that common decency required that a -stop should be put to the practice; that it was an offence -cognizable in a criminal court as being highly indecent, -and <i>contra bonos mores</i>, at the bare idea alone of which -nature revolted; that the purpose of taking up the body for -dissection did not make it less an indictable offence. They -refused to stay proceedings, but inasmuch as Lynn might -have committed the deed merely through ignorance, they -only fined him five marks. Since then others have been -more severely dealt with. And in a very recent case, -Stephen, J., said, “The law to be collected from these -authorities seems to me to be this:—The practice of -anatomy is lawful, though it may involve an unusual -means of disposing of dead bodies, and though it certainly -shocks the feelings of many persons; but to open a grave -and disinter a dead body without authority is a misdemeanor, -even if it is done for a laudable purpose.”</p> - -<p>It is, also, an indictable offence in many of the States to -disinter a corpse, unless the deceased in his life-time had -<span class="xxpn" id="p155">|155|</span> -directed such a thing, or his relatives consent to it; and -that the resurrecting is for the purpose of dissecting does -not improve matters (<a id="fnanchor-425" href="#fn-425" class="fnanchor">425</a>). In New York, removing dead -bodies “for the purpose of selling the same,” or “from -mere wantonness,” is punishable by both fine and imprisonment (<a id="fnanchor-426" href="#fn-426" class="fnanchor">426</a>). -And in New Hampshire and Vermont such -offences bring upon those convicted, fines, whipping, and -imprisonment, as the Court may see fit.</p> - -<p>In Massachusetts, unclaimed dead bodies, and those of -persons killed in duels, or capitally executed, are assigned -to the medical schools of the State. The New York Act of -1789 must be considered as the first American Anatomy -Law. The first section prohibits the removal of dead bodies -for dissection, and the second section permits the Courts, in -passing capital sentence, to award the body to the surgeons -for dissection. Enactments similar to that of the New -York Act, sec. 1, have been passed by the following -States: Alabama, Arkansas, California, Connecticut, Georgia, -Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, -Massachusetts, Michigan, Minnesota, Mississippi, Missouri, -Nebraska, New Hampshire, Ohio, Oregon, Pennsylvania, -Rhode Island, Tennessee, Texas, Vermont, Virginia, West -Virginia, and Wisconsin. The second section of the New -York Act has developed into the Acts of twenty-four States, -which have thus legalized dissection, and most of them -have made specific provision for the dissection of the bodies -of certain deceased criminals, chiefly murderers; these -States are Alabama, Arkansas, California, Colorado, Connecticut, -Georgia, Illinois, Indiana, Iowa, Kansas, Maine, -Massachusetts, Michigan, Minnesota, Missouri, Nebraska, -New Hampshire, New Jersey, New York, Ohio, Pennsylvania, -Tennessee, Vermont, and Wisconsin. Some of these States -<span class="xxpn" id="p156">|156|</span> -have made no other provision for anatomical study beyond -that mentioned (<a id="fnanchor-427" href="#fn-427" class="fnanchor">427</a>). We have already referred to the Canadian -Act on this subject. In addition, the Ontario Act -provides that the bodies of persons found dead, publicly -exposed, or who at time of death had been supported -in and by some institution receiving government aid -(except lunatics in provincial asylums), shall, unless -the person so dying otherwise direct, or the <i>bona fide</i> -friends or relations claim it, be given to public medical -schools in the locality, or to public teachers of anatomy -or surgery, or private medical practitioners, having -three or more pupils, for whose instruction such -bodies are actually required. Such medical practitioners -must give security for the decent interment of the -bodies after they have served their purposes; and then a -written authority to open a dissecting room is given by the -Inspector of Anatomy of the city, town, or place. The Inspector’s -duty is to keep a register of bodies given up for -dissection; a register of the qualified practitioners desiring -bodies; to make an impartial distribution of the bodies in -rotation; to visit the dissection rooms, and to report to the -police magistrate or chief municipal officer, any improper -conduct on the part of students or teachers (<a id="fnanchor-428" href="#fn-428" class="fnanchor">428</a>).</p> - -<p>A person may be found guilty of the offence of disinterring -a corpse, even though he was not actually present at -the body-lifting, if with the intention of giving aid and -assistance he was near enough to afford it, if required (<a id="fnanchor-429" href="#fn-429" class="fnanchor">429</a>).</p> - -<p>Besides the danger he runs of being brought before a -criminal tribunal, the body-lifter incurs the risk of civil -proceedings being taken against him. It is true, as Blackstone -says, the heir has no property in the body or ashes of -<span class="xxpn" id="p157">|157|</span> -his ancestors; nor can he bring any civil action against -such as indecently, at least, if not impiously, violate and -disturb their remains when dead and buried; but that -learned commentator goes on to remark: “The person, -indeed, who has the freehold of the soil, may bring an -action of trespass against such as dig and disturb it” (<a id="fnanchor-430" href="#fn-430" class="fnanchor">430</a>). -This has been clearly established in a case in Massachusetts, -where a father sued for the removal of the -remains of his child, and recovered a verdict for $837 in -an action of trespass <i>quare clausum fregit</i>. Mr. Justice -Forster, in giving judgment, remarks that a dead body is not -the subject of property, and after burial it becomes part of -the ground to which it has been committed, earth to earth, -dust to dust, ashes to ashes. The only action that can be -brought is trespass <i>quare clausum</i>. Any one, said the Judge, -in actual possession of the land may maintain this against -a wrong-doer. The gist of the action is the breaking and -entering, but the circumstances which accompany and give -character to the trespass may always be shown either in -aggravation or mitigation. Acts of gross carelessness as -well as those of wilful mischief often inflict a serious wound -to the feelings, when the injury done to property is comparatively -trifling, and we know of no rule of law which -requires the mental suffering of the party complaining, -caused by the misconduct of the wrong-doer, to be disregarded (<a id="fnanchor-431" href="#fn-431" class="fnanchor">431</a>).</p> - -<p>Willcock, in his “Laws relating to the Medical Profession,” -in his tenth chapter, when considering the lawfulness or -unlawfulness of taking bodies for the purpose of dissection, -says: “The whole question must depend upon the proper -answer to these inquiries. Is it a violation of property? -<span class="xxpn" id="p158">|158|</span> -Is it a personal injury to any individual? Or is it an injury -to the public? Every lawyer who has mentioned the subject -has admitted that there is no violation of property in -respect of the corpse itself, which is necessary to constitute -the removal an offence; and Blackstone has distinctly stated -that the only property violated is the grass and soil of the -land wherein the body was interred, in respect of which the -person may bring his action of trespass, and the law has -not provided any punishment as for an offence. It is equally -clear that it is not an injury to any person; for the shrewd -lawyers of Coke’s time determined that the body was no -person but a lump of clay; and the only injury which can -give a right of action to—that is which amounts to a violation -of any legal right of—a relative or master, is such as may be -said to recoil upon him, by causing him expense, labor, or -loss of valuable service. The unpleasantness which may -arise from an attack upon prejudices, however intimately -blended with good feeling and delicacy of sentiment, is -ranked by the court with that class of wrongs which are -technically designated <i>damna absque injuria</i>.”</p> - -<p>“In <i>Lynn’s</i> case, the judges assumed to answer the third -question, that is to assert that it is an injury to the public. -Society is not injured by the disinterment of the dead for -the purposes of science, for it could hardly exist without -such a sacrifice of fastidiousness; society is not insulted by -the secret abstraction of the corpse from the vermin which -crowd to pollute it, and they who so curiously seek the -remains of those they hold dear, behind the veil of science, -would do well to pry for one moment into the secrets of the -sepulchre. They alone are the violators of every sentiment -of delicacy and benevolence who insult the disconsolate -relatives with the tale of the robbery and the pursuit, and -with the foul spectacle of dismemberment they may have -at length discovered.” -<span class="xxpn" id="p159">|159|</span></p> - -<p>It would appear that in a proper case the Court, in the -interests of justice, will compel the exhuming and examination -of a dead body which is under the control of a -plaintiff, if there is strong reason to believe that without -such examination a fraud is likely to be accomplished, and -the defendant has exhausted every other method known to -the law of exposing it. However, such an order should be -made only upon a strong showing to that effect. “It would -be a proceeding repugnant to the best feelings of our nature, -and likely to be in many cases so abhorrent to the sensibilities -of the surviving relatives, that they would prefer an -abandonment of the suit to a compliance with the order.” -Thus spake the court in a case where the order for exhuming -was asked for and refused as not being justified under -the circumstances. The action was on a policy of insurance, -and the defence was, that the insured had falsely -warranted that he had never received any serious personal -injury, whereas his skull had been fractured in boyhood, -and had been healed by trephining. To prove this, the -company proposed to disinter his body, after the suit had -been pending eighteen months, upon the sole testimony of -his physician, that the deceased had said that he had been -told of such an accident and operation. The counsel for the -plaintiff called the proposal “revolting,” and said that to -break the signet of the grave, and take from its resting -place the sacred property of relatives to gratify the corporation’s -mercenary curiosity, would be worse than Shylock’s -demand (<a id="fnanchor-432" href="#fn-432" class="fnanchor">432</a>).</p> - -<div class="chapter"> -<h2 class="nobreak" id="p160" -title="Chapter XIII. Dentists.">CHAPTER XIII. -<span class="smallerblk">DENTISTS.</span></h2> -</div> - -<p>The need of dentists existed long before dentistry. The -Preacher knew of the inconveniences which arise when the -grinders are few. Marcellus, about B. C. 380, gave two -receipts for toothache. One is, “Say, ‘argidam, margidam, -sturgidam;’” the other is, “Spit in a frog’s mouth and -request him to make off with the complaint.” These are -given in Glenn’s “Laws affecting Medical Men.”</p> - -<p>In England, in the tenth and eleventh centuries, priests -and monks were the dentists of the day. Afterwards, a -decree of the Council of Tours having forbad clergymen -undertaking or engaging in any bloody operation, all surgical -practice fell into the hands of blacksmiths and barbers. -The latter soon became the more important class, and in -1461 (as we have seen already), Edward IV. incorporated -them as “The Freeman of the Mystery or Faculty of Surgery.” -By degrees other persons assumed to practise pure -surgery, and these two bodies, in 1560, were united by Act -of Parliament, and became “The Masters or Governors of -the Mystery and Commonalty of the Barbers and Surgeons -of London.” By the third section of this Act (<a id="fnanchor-433" href="#fn-433" class="fnanchor">433</a>), because of -fear of the spread of contagious diseases, any one in the -City of London using barbery or shaving, was forbidden to -<span class="xxpn" id="p161">|161|</span> -occupy any surgery, letting of blood, or any other thing -belonging to surgery, drawing of teeth only excepted. In -those days one wishing to find a drawer of teeth had to -resort to one of those shops where was exhibited the bandaged -pole as a sign or symbol that “all the King’s liege -people there passing by might know at all times whither to -resort in time of necessity.”</p> - -<p>Something more than a sign is now required of dental -surgeons. The Royal College of Surgeons in England has -now the power to appoint examiners for testing the fitness -of persons to practise as dentists, and to grant certificates -of such fitness. To become a Licentiate of Dental Surgery -in England, it is necessary to be engaged for four years in -the acquirement of professional knowledge; to attend at -a recognized school one course of lectures, at least, in -anatomy, physiology, surgery, medicine, chemistry, and -materia medica, and a second course on the anatomy of the -head and neck; one course on metallurgy, and two on -dental surgery and anatomy, dental physiology and mechanics; -to have dissected for nine months; to have taken -a course of chemical manipulation; to have attended a -hospital for two or more sessions; and to have spent three -years in acquiring practical familiarity in mechanical dentistry -under a competent practitioner; and then to pass the -examination required by the board.</p> - -<p>In Ontario, “The Royal College of Dental Surgeons” has -power to appoint a Board of Directors, who have authority -to fix the curriculum of studies to be pursued by students, -to determine the period during which they must be employed -under a practitioner, to appoint the examiners, and arrange -the examinations, for those who desire to obtain a license -to practise dental surgery in the province. The Board may -also confer the title of “Master of Dental Surgery” upon -any licentiate who passes certain examinations and -<span class="xxpn" id="p162">|162|</span> -conforms with certain regulations. The College is composed -of all those entitled to practise in the Province; and no one -who is not a member of the College can practise dentistry -for hire, gain or hope of reward, or pretend to hold, or take, -or use any name, title, addition or description, implying -that he holds a license to practise, or that he is a member -of the College, or shall falsely represent, or use any title -representing that he is a graduate of any dental college, -under a penalty of $20 and costs for every offence, to be -recovered in a summary way before a magistrate, or in a -Division Court by suit. Persons contravening the Act cannot -recover for work done or materials provided. Of course, -the Act does not interfere with legally qualified medical -practitioners (<a id="fnanchor-434" href="#fn-434" class="fnanchor">434</a>).</p> - -<p>Dentists are subject to the same rules, as to negligence, -as are physicians or surgeons (<a id="fnanchor-435" href="#fn-435" class="fnanchor">435</a>), and if by a culpable want -of attention and care, or by the absence of a competent -degree of skill and knowledge, a D.D.S. causes injury to a -patient, he is liable to a civil action for damages, unless, -indeed, such injury be the immediate result of intervening -negligence on the part of the patient himself, or unless -such patient has by his own carelessness directly conduced -to the injury (<a id="fnanchor-436" href="#fn-436" class="fnanchor">436</a>). The law is ever reasonable; so it only -requires of a dentist a reasonable degree of care and skill -in his professional operations, and will not hold him -answerable for injuries arising from his want of the highest -attainments in his profession. The rule is, that the least -amount of skill with which a fair proportion of the practitioners -of a given locality are endowed, is the criterion by -which to judge of the professional man’s ability or skill (<a id="fnanchor-437" href="#fn-437" class="fnanchor">437</a>). -As far as the liability is concerned, no distinction is made -<span class="xxpn" id="p163">|163|</span> -between those who are regular practitioners and those who -are not so; the latter are equally bound with the former -to have and to employ competent skill and attention.</p> - -<p>A patient must exercise ordinary care and prudence (<a id="fnanchor-438" href="#fn-438" class="fnanchor">438</a>); -so that, if one tells the dentist to pull out a tooth, but -does not say which one is to go, and the wrong one is taken -out, the sufferer has no legal ground of complaint, unless, -indeed, it is quite apparent which is the offending member. -A patient may have been a little careless and negligent; -still, if the dentist has been so very neglectful of his duty -that no ordinary care on the part of the patient would have -prevented the mistake or injury complained of, the injured -party will recover, <i>i.e.</i>, recover damages for the injury received (<a id="fnanchor-439" href="#fn-439" class="fnanchor">439</a>).</p> - -<p>The fact that one has taken chloroform will not affect his -rights or remedies against the tooth-puller for any mistake -or negligence. The maxim <i>vigilantibus, non somnientibus jura -subveniunt</i>, has no reference to people put to sleep by -anæsthetics. In New York, two dentists undertook to -extract a tooth from a patient while the latter was under -the influence of laughing gas. During the operation the -forceps slipped, and part of the tooth went down the patient’s -throat, causing coughing and vomiting for four weeks, -when—in a fit of coughing—the tooth came up, and relief -followed. The patient sued for damages, and when the -case came before it, the Court said, “The defendants (the -dentists) knew that the plaintiff (the patient) while under -the influence of the anæsthetic, had no control of his -faculties, that they were powerless to act, and that he was -unable to exert the slightest effort to protect himself from -any of the probable or possible consequences of the operation -which they had undertaken to perform. He was in their -<span class="xxpn" id="p164">|164|</span> -charge and under their control to such an extent that they -were required to exercise the highest professional skill and -diligence to avoid every possible danger; for the law imposes -duties upon men according to the circumstances in which -they are called to act. In this case, skill and diligence must -be considered as indissolubly associated. The professional -man, no matter how skilful, who leaves an essential link -wanting, or a danger unguarded in the continuous chain -of treatment, is guilty of negligence, and if the omission -results in injury to the patient, the practitioner is answerable. -The quantum of evidence necessary to make out a -<i>primâ facie</i> case of negligence is very slight in some cases, -while in others a more strict proof is required. Often the -injury itself affords sufficient <i>primâ facie</i> evidence of negligence. -* * * There was evidence offered by the -plaintiff showing, that while the defendant drew the tooth, -the forceps slipped. This fact, combined with the unusual -circumstance that the tooth went down instead of coming -up, was sufficient to carry the case to the jury upon the -question of negligence. The trial Judge held that while the -affirmative was upon the plaintiff to prove negligence, the -fact that the defendants, instead of taking the plaintiff’s -tooth out, let it go down his throat, was sufficient evidence -to carry the question of negligence to the jury, to the end -that they might determine whether, in the light of all the -circumstances, the defendants had exercised the skill and -care which the exigencies of the case required. This ruling -was correct” (<a id="fnanchor-440" href="#fn-440" class="fnanchor">440</a>).</p> - -<p>Boyle’s case is an interesting one on the subject of the -use of chloroform. He was a street-car driver; a vicious -horse by a kick threw him from his platform, so that he hit -his head against a tree-box. He was picked up insensible -and carried into a surgery; this he was enabled to leave -<span class="xxpn" id="p165">|165|</span> -in a couple of hours, and the following day went to work -again. In course of time he had a toothache, and went to -a Dr. Winslow’s to have it extracted, intending to take -chloroform. The chloroform was administered, but did -not operate as soon as usual, exciting rather than tranquilizing -B. Insensibility, however, having been finally -obtained, the teeth were taken out, the doctor giving the -anæsthetic from time to time during the operation, as -symptoms of returning consciousness appeared. Boyle -walked home shortly afterwards, feeling, however, dizzy, -and being uncertain in his gait; these unpleasant symptoms -continued even after reaching his house. The next -day, thickness of speech and numbness of one arm and side -came on, with partial paralysis. From this he was still -suffering, when a jury was called upon to say whether his -state was due to the neglect of the dentist or not. The -Judge told the jury that, even if they doubted the safety of -the agent employed (chloroform), there was still a consideration -of the highest reason which they ought not to -disregard. He remarked, “All science is the result of a -voyage of exploration, and the science of medicine can -hardly be said to have yet reached the shore. Men must -be guided therefore by what is probably true, and are not -responsible for their ignorance of the absolute truth which -is not known. If a medical practitioner resorts to the -acknowledged proper sources of information—if he sits at -the feet of masters of high reputation and does as they -have taught him—he has done his duty, and should not be -made answerable for the evils that may result from -errors in the instruction which he has received. * * * -He who acts according to the best known authority is a -skilful practitioner, although that authority should lead -him in some respects wrong. * * * If the plaintiff -was from previous circumstances predisposed to paralysis, -it might well happen that the extraction of his teeth, -<span class="xxpn" id="p166">|166|</span> -without the chloroform, or the use of the chloroform -without the extraction, would bring on a paralytic attack. -Even if this was the case, still it would not be just to make -the defendant answerable for consequences which he could -not foresee, which were not the ordinary or probable result -of what he did. He was only bound to look to what was -natural and probable, to what might reasonably be anticipated. -Unless such guard is thrown around the physician -his judgment may be clouded, or his confidence shaken by -the dread of responsibility, at those critical moments when -it is all important that he should retain the free and -undisturbed enjoyment of his faculties, in order to use -them for the benefit of the patient” (<a id="fnanchor-441" href="#fn-441" class="fnanchor">441</a>).</p> - -<p>In the olden time, front teeth were considered very -valuable. Our ancestors appear to have used them in -fighting, and the hurting of a man so as to render him -less able in fighting to defend himself or annoy his adversary, -was considered a misdemeanor of the highest kind, -and spoken of by my Lord Coke as the greatest offence -under felony. To cut off an ear or strike off a nose was -nothing to the knocking out of a fore-tooth, for a nose or -an ear is useless in a fight—doubtless they are in the -way (<a id="fnanchor-442" href="#fn-442" class="fnanchor">442</a>). According to that system of punishment introduced -into England by the Engles, which compensated -every injury by a money payment, a front tooth was -valued highly, and one who deprived another of such a -member had to pay six shillings, while breaking a rib only -cost half as much, and shattering a thigh only twelve -shillings (<a id="fnanchor-443" href="#fn-443" class="fnanchor">443</a>).</p> - -<p>The fact that a dentist extracts teeth for love and not for -money does not relieve him of his liability for failure to -perform his work properly (<a id="fnanchor-444" href="#fn-444" class="fnanchor">444</a>); and if one is foolish enough -<span class="xxpn" id="p167">|167|</span> -to allow an ignorant apprentice to practise on his teeth, -he can still recover from the dentist for any injuries (<a id="fnanchor-445" href="#fn-445" class="fnanchor">445</a>). -It is a good answer to an action brought by a dentist to -recover payment for his work and labor, that the defendant -has been injured instead of benefited by the plaintiff’s treatment, -either because of his want of skill or his negligence. -So, when Mr. Gilpin went to Mr. Wainwright to have a -tooth extracted, and Wainwright gave him chloroform, -and then pulled out the wrong tooth, and Gilpin declined -to pay for the performance, alleging a want of consideration, -the dentist sued for his account, but the Court gave judgment -against him (<a id="fnanchor-446" href="#fn-446" class="fnanchor">446</a>). If the dentist’s bill has been increased -owing to his own mistake or wrong doing—as where -being employed to pull out one tooth and insert a false one, -he pulled out two, and so had to put in two; he cannot -recover for this additional amount of work. Lord Kenyon -well put this when he said: “If a man is sent for to extract -a thorn which might be pulled out with a pair of nippers, -and through his misconduct it becomes necessary to amputate -the limb, shall it be said, that he may come into a court -of justice to recover fee for the cure of the wound which he -himself has caused?” (<a id="fnanchor-447" href="#fn-447" class="fnanchor">447</a>). To put the question is to give -the answer. In fact, in such a case as the one put, it would -appear that not only could no recovery be had for the -additional services rendered necessary by the dentist’s own -want of proper care, but the man whose grinders were thus -made few would be entitled to a further deduction from the -bill for the bodily suffering and damage he had sustained (<a id="fnanchor-448" href="#fn-448" class="fnanchor">448</a>).</p> - -<p>One cannot reasonably expect to have teeth as well fitted -to the mouth by art as nature. Mrs. Henry got a -set of artificial ones from Dr. Simonds; when put into her -<span class="xxpn" id="p168">|168|</span> -mouth, she complained that they felt odd and pained her. -The plate was somewhat filed, but she was still dissatisfied, -and declined to pay the bill. It was then agreed that she -should take them away and try them for a day or two; -this was done, and again she returned them, declining to -pay. The doctor then sued, and the evidence as to whether -the teeth fitted was conflicting. One testified that they -were a good piece of work; another, that they were a fair -average piece of work; while a third said that they were -nothing extra. The Judge instructed the jury that if -Simonds had used all the knowledge and skill to which the -art had at the time advanced, that would be all that could -be required of him. The verdict was for the defendant. -On an application for a new trial the court considered the -instructions erroneous and granted a new trial, saying: -“that surgeons are held responsible for injuries resulting -from a want of ordinary care and skill. The highest -degree of skill is not to be expected, nor can it reasonably -be required, of all. The instruction given was * * * * -undoubtedly correct, and no more would be required of -him. But, upon legal principles, could so much be required -of him? We think not. If it could, then every professional -man would be bound to possess the highest -attainment, and to exercise the greatest skill in his profession. -Such a requirement would be unreasonable” (<a id="fnanchor-449" href="#fn-449" class="fnanchor">449</a>).</p> - -<p>It is a dangerous thing for both parties for the dentist to -try a new instrument or a new <i>modus operandi</i> for the first -time—doing so the Court once said was a rash act, and he -who acts rashly acts ignorantly. Using a new instrument -is acting contrary to the known rule and usage of the profession (<a id="fnanchor-450" href="#fn-450" class="fnanchor">450</a>). -One cannot become an experimentalist except -at his own peril. -<span class="xxpn" id="p169">|169|</span></p> - -<p>A dentist, at a lady’s request, prepared a model of her mouth, -and made two sets of artificial teeth for her. In response -to a letter notifying her that they were ready, and asking -when he could come and put them in, the dentist received -the following note: “My dear Sir, I regret, after your kind -effort to oblige me, my health will prevent my taking advantage -of the early day. I fear I may not be able for some -days. Yours, etc., Frances P.” Very shortly the lady -died. The dentist sued her executors for £21, but he failed -to recover. The court held that a contract to make a set -of teeth is a contract for the sale of goods, wares or merchandise -within the meaning of the seventeenth section of -the Statute of Frauds; and that as by the terms of the contract -the teeth were to be fitted to the lady’s mouth, and as -this, through no default on her part, was never done, her -executors were not liable to the dentist for work done and -materials provided; nor was the letter a sufficient memorandum -within the meaning of the Act referred to. Counsel -for the plaintiff and the Court seemed to differ widely in -their opinions of the artistic nature of tooth-making. The -former, arguing that the deceased had in truth contracted -for the skill of the dentist, and that the materials were -merely auxiliary to the work and labour, said this case was -not to be distinguished from that of an artist employed to -paint a picture; the ivory used was of insignificant value -as compared to the skill employed. Judge Crompton, however, -said: “Here the subject matter of the contract was -the supply of goods. The case bears a strong resemblance -to that of a tailor supplying a coat, the measurement of the -mouth and the fitting of the teeth being analogous to the -measurement and fitting of the garment” (<a id="fnanchor-451" href="#fn-451" class="fnanchor">451</a>).</p> - -<p>A similar view of the standing of a dentist was taken by -the Court in Michigan, when it held that he was a “mechanic.” -The Court observed, “A dentist, in one sense, is -<span class="xxpn" id="p170">|170|</span> -a professional man, but, in another sense, his calling is mainly -mechanical, and the tools which he employs are used in -mechanical operations. Indeed, dentistry was formerly -purely mechanical, and instruction in it scarcely went -beyond manual dexterity in the use of tools; and a knowledge -of the human system generally, and of the diseases -which might affect the teeth and render an operation important, -was by no means considered necessary. Of late, -however, as the physiology of the human system has become -better understood, and the relations of the various parts -and their mutual dependence become more clearly recognized, -dentistry has made great progress as a science, and -its practitioners claim, with much justice, to be classed -among the learned professions. It is nevertheless true -that the operations of the dentist are, for the most part, -mechanical, and so far as tools are employed, they are -purely so, and we could not exclude these tools from the -exemption which the statute makes, without confining the -construction of the statute within limits not justified by the -words employed” (<a id="fnanchor-452" href="#fn-452" class="fnanchor">452</a>). On the other hand, in Mississippi, the -Court said, “A dentist cannot be properly denominated a -‘mechanic.’ It is true that the practice of his art requires -the use of instruments for manual operations, and that -much of it consists in manual operations; but it also involves -a knowledge of the physiology of the teeth, which -cannot be acquired but by a proper course of study, and -this is taught by learned treatises upon the subject, and as a -distinct though limited part of the medical art, in institutions -established for the purpose. It requires both science -and skill, and if such persons should be included in the -denomination of ‘mechanics,’ because their pursuit required -the use of mechanical instruments and skill in -manual operation, the same reason would include general -surgeons under the same denomination, because the -<span class="xxpn" id="p171">|171|</span> -practice of their profession depends in a great degree upon -similar instruments and operative skill; nor could such a -pursuit properly be said to be a trade” (<a id="fnanchor-453" href="#fn-453" class="fnanchor">453</a>).</p> - -<p>False teeth have been considered necessaries for a wife. -One Andrews had a conversation with Gilman, a dentist, -as to the latter furnishing the former’s wife with a plate of -mineral teeth, and he agreed to pay for certain other dental -services rendered to Mrs. A. The plate was furnished while -Mr. and Mrs. A. were living together, and it was quite -suitable to the former’s circumstances and station in life; -he saw it, knew whence it came, raised no objection to it, -still he declined to pay for it. The Court, however, held him -liable, not only because the wife being permitted to retain -the plate, and the other circumstances, showed her authority -to make the purchase, but also on the ground that the teeth -were some of those necessaries wherewith a husband is -bound to furnish his wife (<a id="fnanchor-454" href="#fn-454" class="fnanchor">454</a>).</p> - -<p>A dentist must not take any unfair advantage of his -patient. Some thirty years ago, one Captain Simpson, a -very old seaman and a pensioner in Greenwich Hospital, -gave a bill of exchange, payable eight months after date, -for £262 10s. to one Davis, a London dentist, purporting to -be for value received. Davis said, the real bargain was -that he should during the whole of the Captain’s life attend -to his teeth, and supply him with new ones from time to -time. He also said that a new set of teeth would cost from -£30 to £50. The bill was in the handwriting of D.; it was -given in his house when no third person was by, and it was -never heard of until after the captain’s death, which took -place before it was due. There was no writing as to the -teeth. The executors of Simpson declined to pay, whereupon -Davis handed the note over to a creditor of his own, -<span class="xxpn" id="p172">|172|</span> -who sued both parties. The executors filed a bill in -chancery, impeaching the document for fraud, and asking -that it might be delivered up to them. The Court thought -that it was quite impossible for any reasonable being to -draw any inference from the materials before it, but that -it was a case of fraud—nay, a gross fraud, and the decree -was made as asked (<a id="fnanchor-455" href="#fn-455" class="fnanchor">455</a>). Sir Launcelot Shadwell thought -that the case had points of resemblance to that of <i>Dent</i> -v. <i>Bennett</i> (<a id="fnanchor-456" href="#fn-456" class="fnanchor">456</a>), in which a medical man bargained for a very -large sum of money to attend a person of advanced years -until death; but in that case the doctor had to attend to -the whole human body, not merely to a particular part of it.</p> - -<p>One dentist must not imitate too closely the sign or card -of a fellow practitioner. One Colton alleged that he had -purchased from a Dr. G. Q. Colton the right to use the -name “Colton Dental Association” in connection with the -use of nitrous-oxide gas to alleviate pain in the extraction -of teeth, and that he used the same in advertisements and -prominently displayed it on signs; that the defendant, -who had been in his employment, left him, opened dental -rooms in the same street, issued cards announcing that he -was “formerly operator at the Colton Dental Rooms,” and -extracted teeth without pain by the use of nitrous-oxide gas, -and put a sign to the same purport over his door, but the -words “formerly operator at the,” upon cards and sign, -were in small and almost illegible letters, while the words -“Colton Dental Rooms” were very conspicuous; the signs -were very similar in shape, size, &c., and were hung on the -same side of the street, in the same manner, and might -readily be mistaken the one for the other, especially by -suffering patients impatient for relief. An injunction -against the defendant’s cards and signs was granted (<a id="fnanchor-457" href="#fn-457" class="fnanchor">457</a>). -<span class="xxpn" id="p173">|173|</span></p> - -<p>And where Morgan and Schuyler, two dentists, dissolved -partnership, S. bought M.’s interest in the fixtures and in -the lease of the room, and continued business therein. M. -removed his name from the sign, but S. replaced it, and -put above, in letters so small as to be nearly imperceptible, -his own name with the words “successor to.” The agreement -of dissolution did not prohibit M. from engaging in -the business, so he opened an office therefor in another -part of the city. He then applied to the Court to restrain -his late partner from the use of his name as mentioned. -He was successful in his action. But the Court thought -that S. would have kept within his rights if he had merely -described himself as “late of” the firm (<a id="fnanchor-458" href="#fn-458" class="fnanchor">458</a>).</p> - -<div class="chapter"> -<h2 class="nobreak" id="p174" -title="Chapter XIV. Druggists.">CHAPTER XIV. -<span class="smallerblk">DRUGGISTS.</span></h2></div> - -<p>A druggist, the Supreme Court of Louisiana says, means -“one who sells drugs without compounding or preparing -them: and so is a more limited term than apothecary -(<a id="fnanchor-459" href="#fn-459" class="fnanchor">459</a>).”</p> - -<p>A commission merchant, dealing principally in alcohol, -is not a druggist, within the meaning of the Massachusetts’ -Act, regulating the sale of alcohol by druggists -(<a id="fnanchor-460" href="#fn-460" class="fnanchor">460</a>); and -although whiskey may be sold by druggists in comparatively -small quantities as medicine, and doubtless a great many -people so take it, still it was held that fifty barrels of -whiskey remaining in a bonded warehouse at the time of -his death would not pass under the will of a wholesale and -retail druggist bequeathing his stock of medical drugs, etc. -The Court considered fifty barrels of whiskey wholly disproportionate -to the ordinary stock of medicine and drugs -kept on hand by the testator—too much sack for the -bread (<a id="fnanchor-461" href="#fn-461" class="fnanchor">461</a>). -One may be an apothecary or druggist although -he does not actually compound his medicines -(<a id="fnanchor-462" href="#fn-462" class="fnanchor">462</a>).</p> - -<p>In the early days in England, the grocers, or poticaries, -who formed one of the trade guilds of London, united with -their ordinary business the sale of such ointments, simples -<span class="xxpn" id="p175">|175|</span> -and medicinal compounds as were then in use. In the days -of Henry VIII., the medical department of the grocers’ trade -being greatly increased, shops were established for the exclusive -sale of drugs and medicinal and all kinds of chemical -preparations. We have a graphic description of one of -these apothecaries about the days of “Good Queen Bess,” -in the words of the prince of English dramatists:</p> - -<div class="poembox"><div class="stanza"> -<p class="verse05">——I do remember an apothecary,</p> -<p class="verse0">And hereabouts he dwells, which late I noticed</p> -<p class="verse0">In tatter’d weeds, with overwhelming brows,</p> -<p class="verse0">Culling of simples: meagre were his looks,</p> -<p class="verse0">Sharp misery had worn him to the bones,</p> -<p class="verse0">And in his needy shop a tortoise hung,</p> -<p class="verse0">An alligator stuff’d, and other skins</p> -<p class="verse0">Of ill-shaped fishes: and about his shelves</p> -<p class="verse0">A beggarly account of empty boxes,</p> -<p class="verse0">Green earthen pots, bladders and musty seeds,</p> -<p class="verse0">Remnants of pack thread and old cakes of roses</p> -<p class="verse0">Were thinly scattered to make up a show.</p> -<p class="signature"> - <span class="smcap">R<span>OMEO</span></span> - <span class="smmaj">AND</span> - <span class="smcap">J<span>ULIET,</span></span> - Act. V., <span class="smmaj">SC.</span> 1.</p> -</div></div> - -<p>Until 1868, any person whatever might open what is -called a chemist’s shop in England, and deal in drugs and -poisons. In that year, however, the Pharmacy Act was -passed, which prohibits any person engaging in the business -of, or assuming the title of, Chemist and Druggist, or dispensing -chemicals or drugs, unless he be registered under -that Act. And to be registered one must pass an examination -in Latin, English, arithmetic, prescriptions, practical -dispensing, pharmacy, materia medica, botany and chemistry.</p> - -<p>Under the Ontario Act (<a id="fnanchor-463" href="#fn-463" class="fnanchor">463</a>) there is a College of Pharmacy, -managed by a Pharmaceutical Council who grant certificates -of competency to practise as pharmaceutical chemists, -prescribe the subjects on which candidates are to be -<span class="xxpn" id="p176">|176|</span> -examined, and arrange for the registration of chemists. No -one, save those registered or their employeés, is authorized -to compound prescriptions of legally authorized medical -practitioners. The Act, however, does not apply to medical -practitioners. But, save as aforesaid, no one can retail, -dispense, or compound poisons, or sell certain articles -named, or assume or use the title of “Chemist and Druggist,” -or “Chemist,” or “Druggist,” or “Pharmacist or -Apothecary,” or “Dispensing Chemist or Druggist,” unless -he has complied with the Act.</p> - -<p>The Code Napoleon recognizes two classes of vendors of -drugs and medicines, apothecaries and druggists. The -former, who are assumed to be pharmaceutically educated, -are alone allowed to sell compounded medicine, the latter -who are classed with grocers are only permitted to sell -drugs of a simple character in bulk and at wholesale (<a id="fnanchor-464" href="#fn-464" class="fnanchor">464</a>). -In the United States, wherever statutes do not otherwise -direct, apothecaries and druggists are put upon the common -law footing of provision vendors, and may sell in any -quantities articles in which they deal.</p> - -<p>A druggist is held to a strict accountability in law for any -mistake he may make in compounding medicine or selling -his drugs. By the statute law of England it is declared to -be the duty of every person using or exercising the art or -mystery of an apothecary to prepare with exactness, and to -dispense, such medicines as may be directed for the sick by -any physician (<a id="fnanchor-465" href="#fn-465" class="fnanchor">465</a>). And by the same Act, for the further protection, -security, and benefit of George the Third’s subjects -it was declared, that if any one using the art or mystery of -an apothecary, should deliberately or negligently, unfaithfully, -fraudulently or unduly make, mix, prepare or sell any -medicines, as directed by any prescription signed by any -<span class="xxpn" id="p177">|177|</span> -licensed physician, such apothecary shall, on conviction -before a Justice of the Peace, unless good cause be shown to -the contrary, forfeit for the first offence £5, for second, £10, -and for third he shall forfeit his certificate. But apart from -any statute, whenever a druggist or apothecary (using the -words in their general sense) sells a medicine, he impliedly -warrants the good quality of the drugs sold; and besides -that, he warrants that it is the article that is required and -that it is compounded in every prescription dispensed by -him <i>secundum artem</i>. Like the provision dealer, the pharmaceutist -is bound to know that the goods he sells are -sound, <i>i.e.</i>, competent to perform the mission required of -them, and being so presumed to know, he warrants their -good qualities by the very act of selling them for such. -The rule, “Let the buyer beware,” does not apply.</p> - -<p>In some way Fleet and Simple got cantharides mixed with -some snake root and Peruvian bark. Unfortunately -Hollenbeck, requiring some of this latter mixture, bought -this that these druggists had, took it as a medicine, and in -consequence suffered great pain, and had his health permanently -impaired. He sued for damages, and recovered -a verdict for $1,140. The defendants asked for a new trial, -but the Court refused it saying, “Purchasers have to trust -to a druggist. It is upon his skill and prudence they must -rely. It is his duty to know the properties of his drugs, to -be able to distinguish them from one another. It is his -duty so to qualify himself, or to employ those who are so -qualified, to attend to the business of compounding and -vending medicines and drugs, as that one drug may not be -sold for another; and so that, when a prescription is presented -to be made up the proper medicine, and none other, -be used in mixing and compounding it. The legal maxim -should be reversed, instead of <i>caveat emptor</i> it should be -<i>caveat venditor</i>, <i>i.e.</i>, let him be certain that -he does not sell -<span class="xxpn" id="p178">|178|</span> -to a purchaser or send to a patient, one thing for another, -as arsenic for calomel, cantharides for, or mixed with snake -root and Peruvian bark, or even one innocent drug calculated -to produce a certain effect, in place of another sent for -and designed to produce a different effect. If he does these -things he cannot escape civil responsibility upon the alleged -pretext that it was an accidental or an innocent mistake. -We are asked by the defendants’ attorneys in their argument, -with some emphasis, if druggists are in legal estimation, -to be regarded as insurers. The answer is, we see no -good reason why a vendor of drugs, should in his business -be entitled to a relaxation of the rule which applies to vendors -of provisions, which is, that the vendor undertakes and -insures that the article is wholesome (<a id="fnanchor-466" href="#fn-466" class="fnanchor">466</a>).”</p> - -<p>The general customer is not supposed to be skilled in the -matter of drugs, but in the purchase he must rely upon the -druggist to furnish the article called for; and in this particular -business the customer who has not the experience -and learning necessary to a proper vending of drugs, will -not be held to the rule that he must examine for himself, -it would be but idle mockery for the customer to make the -examination when it would avail him nothing. On the -contrary, the business is such that in the very nature of -things, the druggist must be held to warrant that he will -deliver the drug called for and purchased by the customer (<a id="fnanchor-467" href="#fn-467" class="fnanchor">467</a>).</p> - -<p>It is the duty of the druggist to know whether his drugs -are sound or not, and it is no answer to his want of knowledge -to say, that the buyer had opportunities for inspection, -and could judge for himself of the quality of goods (<a id="fnanchor-468" href="#fn-468" class="fnanchor">468</a>).</p> - -<p>If a druggist miscompounds a medicine, or intentionally -deviates from the formula, he commits a tortious act, and -<span class="xxpn" id="p179">|179|</span> -if any injury arises to another through his ignorance or -neglect he is liable. Even if a physician writes a prescription -wrongly it is expected that the druggist will know -enough to detect the error, and whether he does so or not -he still compounds it at his peril. For one man’s negligence -or omission of duty is no palliation of another’s, and under -the doctrine of joint liability the apothecary or druggist -who compounds, knowingly or not, a noxious prescription, -commits a joint tort with the physician who writes -it (<a id="fnanchor-469" href="#fn-469" class="fnanchor">469</a>). And in an action against a druggist for injury -through the negligence of his clerk in selling sulphate of -zinc for Epsom salts, it is no defence to say that the -subsequent medical treatment was negligent (<a id="fnanchor-470" href="#fn-470" class="fnanchor">470</a>).</p> - -<p>A wholesale druggist is liable in the same way as a retail, -when he supplies substances notoriously dangerous to health -or life, and he impliedly warrants the articles to be as -represented by their conventional designation, and if they -are not so, he is liable for all damages that may ensue from -his misrepresentation (<a id="fnanchor-471" href="#fn-471" class="fnanchor">471</a>).</p> - -<p>If a druggist affixes to a medicine, or drug, a label bearing -his name and stating it to have been prepared by him, -he makes the warrant only more notorious, and by so doing -(inasmuch as it is an invitation to the public to confide in his -representation), is ever after estopped from denying responsibility -for any injury which may have arisen out of defects -in its quality, or errors in its composition. So long as the -label is attached, it is an affirmation of the good quality of -the article and its correct composition, to every one who -relies upon it when buying. But as some articles deteriorate -in time, what is said in relation to the liability of the -vendor applies only to the article at the time it leaves -<span class="xxpn" id="p180">|180|</span> -his hands. He only warrants its good qualities then, -but no longer, and his representation affirms that much, -and no more (<a id="fnanchor-472" href="#fn-472" class="fnanchor">472</a>). The subject of labels was carefully -considered in <i>Thomas</i> v. <i>Winchester</i> (<a id="fnanchor-473" href="#fn-473" class="fnanchor">473</a>), where Ruggles C.J. -gave judgment. Mary Ann Thomas was ordered a dose of -extract of dandelion, her husband bought what he believed -was dandelion from Dr. Foord, druggist and physician; -but it was extract of belladonna. The jar was labelled -‘½ ℔ dandelion, prepared by A. Gilbert, No. 108 John -street, N. Y.’ Foord bought it as dandelion from James -S. Aspinwall, druggist, who bought it from defendant, a -druggist, 108 John street. Defendant manufactured some -drugs and purchased others, but labelled all in the same -way. Gilbert was an assistant who had originally owned -the business. The extract in the jar had been purchased -from another dealer. The two extracts are alike in colour, -consistency, smell and taste. Gilbert’s labels were paid for -by defendant and used in his business with his knowledge -and consent. A non-suit was moved for on the ground, that -defendant being a remote vendor and there being no privity -or connection between him and the plaintiff, the action -could not be sustained. The Court said, “Gilbert, the defendant’s -agent, would have been punishable for manslaughter if -Mrs. Thomas had died in consequence of taking the falsely -labelled medicine. Every one who by his culpable negligence -causes the death of another, although without intent -to kill, is guilty of manslaughter (<a id="fnanchor-474" href="#fn-474" class="fnanchor">474</a>). This rule applies not -only where the death of one is occasioned by the neglectful -act of another, but where it is caused by the neglectful -omission of a duty by that other (<a id="fnanchor-475" href="#fn-475" class="fnanchor">475</a>). Although the defendant -W. may not be answerable criminally for the neglect -<span class="xxpn" id="p181">|181|</span> -of his agent, there can be no doubt as to his liability in a -civil action, in which the action of the agent is to be -regarded as the act of the principal. The defendant’s -neglect put human life in imminent danger. Can it be -said that there was no duty on the part of the defendant -to avoid the creation of that danger by the exercise of -greater caution? Or that the exercise of that caution was a -duty only to his immediate vendee, whose life was not -endangered? (He being a dealer and not a customer.) -The defendant’s duty arose out of the nature of his -business, and the danger to others incident to its -mismanagement. Nothing but mischief like that which -actually happened could have been expected from sending -the poison falsely labelled into the market, and the defendant -is justly responsible for the probable consequences of -the act. The duty of exercising caution in this respect -did not arise out of the defendant’s contract of sale to -Aspinwall. The wrong done by the defendant was in -putting the poison unlabelled into the hands of Aspinwall -as an article of merchandise to be sold, and afterwards used, -as the extract of dandelion by some person then unknown. -The defendant’s contract of sale to Aspinwall does not -excuse the wrong done the plaintiffs. It was part of the -means by which the wrong was effected. The plaintiffs’ -injury and their remedy would have stood on the same -principle if the defendant had given the belladonna to Dr. -Foord without price, or if he had put it in his shop without -his knowledge under circumstances that would have led to -its sale on the faith of the labels.”</p> - -<p>Ordronaux says (sec. 186): It cannot be denied that -had Mrs. Thomas died, Foord would, equally with Gilbert, -have been guilty of manslaughter, since whether he intended -it or no, he was doing an unlawful act in dispensing a -poison for a salutary medicine. While then it may be -proper enough to rely upon labels and warranties of others, -<span class="xxpn" id="p182">|182|</span> -in dealing with ordinary substances, still when it comes to -articles of a character dangerous to health or life, the law -will presume knowledge of their quality in those professionally -dealing in them, and exact a degree of skill and -care commensurate with the risks incurred. Here it is -<i>caveat venditor</i> instead of <i>caveat emptor</i>.</p> - -<p>In Kentucky, a druggist sold croton oil instead of linseed -oil for a patient, who, in consequence of the mistake, died. -His widow was held entitled to full damages against the -seller (<a id="fnanchor-476" href="#fn-476" class="fnanchor">476</a>).</p> - -<p>If a druggist negligently sell a deadly poison as and for -a harmless medicine to A., who buys it to administer to B., -and gives B. a dose of it as a medicine, from the effect of -which he dies, a right of action against the druggist -survives to B.’s representative, notwithstanding the want -of privity of contract between B. and the druggist (<a id="fnanchor-477" href="#fn-477" class="fnanchor">477</a>). -And this is the rule, also, when the sale has been made by -the apothecary’s assistant (<a id="fnanchor-478" href="#fn-478" class="fnanchor">478</a>).</p> - -<p>Joseph George, and Emma, his wife, sued Skivington, a -druggist, alleging that he, in the course of his business, -professed to sell a chemical compound made of ingredients -known only to him, and by him represented to be fit for a -hairwash without causing injury to the person that used -it, and to have been carefully compounded by him; that -Joseph thereupon bought of the defendant a bottle of this -hairwash, to be used by Emma, as the defendant knew, -and on the terms that it could be so safely used, and had -been so compounded; yet the defendant had so negligently -and unskilfully conducted himself in preparing and selling -the hairwash, that it was unfit to be used for washing the -hair, whereby the plaintiff, Emma, who used it for that -<span class="xxpn" id="p183">|183|</span> -purpose was injured. The Court held that a good cause of -action was shewn (<a id="fnanchor-479" href="#fn-479" class="fnanchor">479</a>).</p> - -<p>A Massachusetts apothecary sold sulphide of antimony -by mistake for black oxide of manganese. The two look -alike, but differ in this, that the preparation of manganese -may be safely mixed with chlorate of potassia for many -useful purposes; but if that antimony is mixed with that -chlorate, an explosive compound is formed. The buyer, -supposing he had manganese, proceeded to mix it with -potassia, having bought the article for that purpose. But, -it being antimony, the compound which he made exploded, -broke his head, damaged his hearing, and destroyed the -furniture of his laboratory. Yet the Court held that the -druggist was not chargeable with these damages, because -he did not know that the article he sold was to be mixed -with potassia, and did not sell it for that purpose. Kept or -used by itself, as he sold it, it would have been innocuous. -He was not to blame for the mixing, the real cause of the -injury (<a id="fnanchor-480" href="#fn-480" class="fnanchor">480</a>).</p> - -<p>In England (<a id="fnanchor-481" href="#fn-481" class="fnanchor">481</a>), a chemist and druggist was indicted for -manslaughter, but was acquitted. The deceased had been -in the constant habit of getting aconite and occasionally -henbane from Noakes; on this occasion he sent two bottles -of his own, one marked, “Henbane, 30 drops at a time.” -The druggist by mistake put the aconite into the henbane -bottle, the dose of thirty drops was taken, and the customer -was no more. Erle, C.J., told the jury that although there -might be evidence of negligence sufficient for a civil action, -still that they could not convict unless there was such a -degree of complete negligence as the law meant by the word -“felonious,” and that in this case he did not think there -<span class="xxpn" id="p184">|184|</span> -was sufficient to warrant that. But Tessymond, a chemist’s -apprentice, was found guilty of manslaughter for causing -the death of an infant by negligently giving to a customer -who asked for paregoric to give to the infant (a child of -nine weeks old), a bottle with a paregoric label, but -containing laudanum, and recommending a dose of ten -drops (<a id="fnanchor-482" href="#fn-482" class="fnanchor">482</a>).</p> - -<p>One Jones recovered against a chemist and druggist of -the name of Fay, £100 for damages, because he, Fay, gave -him blue pills for the painters’ colic, such physic being -improper (<a id="fnanchor-483" href="#fn-483" class="fnanchor">483</a>). A man, on the advice of a friend, went to a -drug store for ten cents worth of “black-draught,” a -comparatively harmless drug, of which he intended to take -a small glassful as a dose for diarrhœa. There was -evidence given by the clerk who sold the mixture, that at -the shop he asked for “black-drops,” the defendant, the -proprietor, told him that that was poison, that the dose -was from ten to twelve drops, and advised him to take -another mixture; he refused, and the clerk (by the defendant’s -direction), gave him two drachms of “black-drops” -in a bottle, with a label bearing those two words written -upon it, but nothing to indicate the dose, or that it was -poison. The man took the bottle home, drank almost all its -contents, and died the next morning from the effects of so -doing. In an action brought by the representative of the -deceased to recover damages for negligent killing by the -defendant, it was held that the Courts should have submitted -to the jury the question as to whether the defendant -was not guilty of negligence in failing to place upon the -bottle a label, shewing that its contents were poisonous, and -that it erred in non-suiting the plaintiff. Afterwards in -giving the judgment of the Court of Appeal, Finch, J., said, -“on such a state of facts (as sworn to by the clerk) a verdict -<span class="xxpn" id="p185">|185|</span> -against the defendant would not be justified. Although -no label marked ‘poison’ was put upon the phial, and -granting that by such omission the defendant was guilty of -misdemeanor and liable to the penalty of the criminal law -(under the statute of the State), still that fact does not -make him answerable to the customer injured, or to his -representative in case of his death, for either a negligent -or wrongful act, when towards that customer he was guilty -of neither, since he fairly and fully warned him of all and -more than could have been made known by the authorized -label. * * * If the warning was in truth given, -if the deceased was cautioned that the medicine sold was a -strong poison, and but ten or twelve drops must be taken, -he had all the knowledge and all the warning that the -label could have given, and could not disregard it and then -charge the consequences of his own negligent reckless act -upon the seller of the poison. But if no such warning was -given, its omission was negligence, for the results of which -the vendor was liable both at common law and by force of -the statute.” But the Court considered that the clerk -being himself the one who had been negligent stood in a -position to provoke suspicion, arouse doubt and justify -watchful and rigid criticism, and that this joined with the -conduct of the deceased, developed a question of fact rather -than of law, and that the Court below was right in saying -that the case should have been submitted to the jury (<a id="fnanchor-484" href="#fn-484" class="fnanchor">484</a>).</p> - -<p>Under the Ontario Pharmacy Act no one can sell certain -poisons named without having the word “Poison,” and the -name of the article, distinctly labelled upon the package; -and if the sale is by retail, the name of the proprietor of -the establishment where it is sold, and the address must -also be on the label (<a id="fnanchor-485" href="#fn-485" class="fnanchor">485</a>). -<span class="xxpn" id="p186">|186|</span></p> - -<p>Any person selling any poison, in violation of the Act, is -liable to a penalty of not more than $20 and costs for the -first offence, and $50 and costs for every subsequent -offence; and one-half of the penalty goes to the prosecutor; -and no one selling in violation of the Act can recover his -charges. And one wilfully or knowingly selling any article -under pretence that it is a particular drug or medicine, -when it is not, is liable to the above penalties, besides any -other to which he may be liable irrespective of the Act (<a id="fnanchor-486" href="#fn-486" class="fnanchor">486</a>).</p> - -<p>In Georgia it was held, that where a druggist in good -faith recommended the prescription of another person to -the owner of a sick horse, who thereupon ordered him to -put it up and paid for it, the owner had no cause of action -because the medicine had injured his horse, as the stuff -was properly prepared according to the prescription (<a id="fnanchor-487" href="#fn-487" class="fnanchor">487</a>).</p> - -<p>In England chemists and druggists are liable to the -heavy penalty of £500 if they sell to brewers or dealers in -beer anything to be used as a substitute for malt; they are -also liable for adulterating, or selling any adulterated, -medicine; and on a second offence of this kind, the name of -the offender, his abode, and his crime may be published in -the newspapers at his expense (<a id="fnanchor-488" href="#fn-488" class="fnanchor">488</a>).</p> - -<p>An action can be maintained by a husband against a -druggist to recover damages for selling to the plaintiff’s wife, -secretly, from day to day large quantities of laudanum to be -used by her as a beverage, and which are so used by her to -the druggist’s knowledge, without the knowledge or consent -of the husband, the druggist well knowing that the same -was injuring and impairing her health, and concealing the -fact of such sales and the use thereof from the husband; -<span class="xxpn" id="p187">|187|</span> -in consequence of which use by her the wife became sick -and emaciated, and her mind was affected, so that she was -unable to perform her duties as such wife, and her affections -became alienated from her husband, and he lost her society, -and was compelled to expend divers sums of money in -medical and other attendance upon her (<a id="fnanchor-489" href="#fn-489" class="fnanchor">489</a>).</p> - -<p>In some of the American Courts it has been held that a -statute forbidding the sale or keeping for sale without authority -of spirituous or intoxicating liquors does not apply to -druggists who keep such liquors only for the purpose of mixing -them with other ingredients, according to prescriptions of -physicians; and also for the purpose of manufacturing such -compounds as are commonly used by druggists to be sold -as medicines for remedies for sickness and disease (<a id="fnanchor-490" href="#fn-490" class="fnanchor">490</a>). The -question has often come up whether a compound sold by a -druggist is to be considered an intoxicating liquor, the sale -of which is illegal, or not. The rule laid down is, that so -long as liquors retain their characters as intoxicating -liquors, capable of being used as beverages, notwithstanding -that other ingredients—roots or tinctures—may have been -mixed therewith, they fall under the ban of the law; but -when they are so compounded with other substances as -to lose their distinctive characters of intoxicating liquors, -and are no longer desirable for use as stimulating -beverages, they are medicine and their sale is not prohibited (<a id="fnanchor-491" href="#fn-491" class="fnanchor">491</a>).</p> - -<p>In Indiana a <i>bona fide</i> sale of intoxicating liquor by a -druggist for medicinal purposes is not a violation of the -statute regulating the sale of such liquors, although the -statute contains no exception authorizing the sale of such -<span class="xxpn" id="p188">|188|</span> -liquors, without license, for medicinal, chemical or sacramental -purposes.</p> - -<p>And that is the law in North Carolina, but not in -Arkansas (<a id="fnanchor-492" href="#fn-492" class="fnanchor">492</a>). In Iowa it was considered a breach of the -law for a druggist to sell a quart of whiskey to a stranger -upon his simple statement that he was accustomed to take -it as a medicine and wanted it as such (<a id="fnanchor-493" href="#fn-493" class="fnanchor">493</a>).</p> - -<p>In Texas, where a druggist can only sell ardent spirits -upon the prescription of physicians in sickness, a druggist -who is himself a physician may sell to a sick patient -without a prescription from anyone else (<a id="fnanchor-494" href="#fn-494" class="fnanchor">494</a>).</p> - -<div class="chapter"> -<h2 class="nobreak" id="p189" -title="Chapter XV. Partners, Goodwill, Assistants.">CHAPTER XV. -<span class="smallerblk">PARTNERS, GOODWILL, ASSISTANTS.</span></h2> -</div> - -<p>A partnership -(<a id="fnanchor-495" href="#fn-495" class="fnanchor">495</a>) -between medical men is an association -of persons, standing to one another in the relation of -principals, for jointly carrying out the objects of their -profession, with an agreement to share the profits.</p> - -<p>The general laws relating to partnerships apply to those -of medical men or dentists. There can be no partnership, -as between themselves, if the relationship of master and -servant exists, or where there is no joint interest. No -particular form of words is needed to create a partnership, -nor need the agreement be in writing unless it is to last -for more than a year from the date. If an agreement to -form a partnership is broken an action will lie, if the terms -of the agreement be clear and distinct; but the performance -of such an agreement will not be compelled unless all -the terms have been fixed and ascertained, and a definite -time for its duration agreed on.</p> - -<p>If one has been induced to enter the partnership through -the fraud or misrepresentation of the other, the party -deceived may at his option avoid the contract. But he -should act promptly on discovering the deception. Where -a surgeon was induced to enter into partnership with, and -pay a large premium to another, in consequence of -<span class="xxpn" id="p190">|190|</span> -misrepresentations as to the amount of income derived from -the practice, a dissolution was decreed and a return of part -of the premium (<a id="fnanchor-496" href="#fn-496" class="fnanchor">496</a>); and where a practitioner took a partner -and a premium, and agreed to continue practising for three -years, concealing the fact that he was suffering from a -disease which soon carried him off, his executor was ordered -to return part of the premium (<a id="fnanchor-497" href="#fn-497" class="fnanchor">497</a>).</p> - -<p>Partners are trustees and agents for one another, and -must exercise the most perfect good faith towards one -another. One cannot sue the other for his share of the -profits until the accounts have been stated and settled -between them. One medical man cannot, as a rule, bind -his partner by borrowing money, even to pay partnership -liabilities, or by making or drawing promissory notes or -bills of exchange; but he may generally do so by simple -contracts, within the scope of the business.</p> - -<p>In England, it appears that there is nothing illegal in -the partnership of a qualified and an unqualified practitioner, -and that it will be sufficient if only one member of -the firm be registered (<a id="fnanchor-498" href="#fn-498" class="fnanchor">498</a>).</p> - -<p>A partnership may be dissolved by mutual agreement, -or by the effluxion of time. A wilful and permanent -neglect of business is a ground for dissolution; so is gross -misconduct by a partner in reference to partnership matters. -Immoral conduct materially affecting the business -will be a ground for dissolution; also, insanity, or permanent -incapacity (<a id="fnanchor-499" href="#fn-499" class="fnanchor">499</a>). On a dissolution the partners may -separately carry on the business at any place, unless -restrained by agreement. -<span class="xxpn" id="p191">|191|</span></p> - -<p>Sir John Leach considered that in a partnership, between -professional persons, upon the death of one partner the -good-will of the business belonged to the survivor, and that -he was not bound to account to the representatives of the -deceased partner for it (<a id="fnanchor-500" href="#fn-500" class="fnanchor">500</a>).</p> - -<p>A good-will attaches to a professional, as well as to any -other kind of business, and it is and may be the subject of -purchase and sale; and although it is not computable, and -the sale of it is not enforceable by an action for specific -performance if it has not been estimated, yet it does stand -on the same footing as any other business, if the parties -have fixed a determinate price upon it, or have provided -any other way of fixing its value (<a id="fnanchor-501" href="#fn-501" class="fnanchor">501</a>). The good-will of a -medical man’s business is an asset of his estate which his -representatives can sell, and for which they must account -if it is sold. But it is not clear that the representatives -can be compelled to find a purchaser (<a id="fnanchor-502" href="#fn-502" class="fnanchor">502</a>).</p> - -<p>Jessel, M. R., recently asked the question, “What is the -meaning of selling a medical practice?” And in answering -his query he said, “It is the selling of the introduction of -the patients of the doctor who sells to the doctor who buys, -he has nothing else to sell except the introduction. He -can persuade his patients, probably, who have confidence -in him to employ the gentleman he introduces as being a -qualified man, and fit to undertake the cure of their maladies, -but that is all he can do. Therefore, when you talk -of the sale of a non-dispensing medical practice—of course, -when a man keeps what is called a doctor’s shop, there is a -different thing entirely to sell—you are really talking of the -sale of the introduction to the patients, and the length, the -<span class="xxpn" id="p192">|192|</span> -character and duration of the introduction, the terms of the -introduction are everything. And there is something more, -according to my experience, in cases of the sale of medical -practices; there is always a stipulation that the selling -doctor shall retire from practice either altogether or within -a given distance. It is so always, and there is also sometimes -a stipulation that he will not solicit the patients, or -shall not solicit them for a given time. They are both very -important stipulations as regards keeping together the practice -for the purchasing doctor” (<a id="fnanchor-503" href="#fn-503" class="fnanchor">503</a>).</p> - -<p>The general rule of law is, that any contract in general -restraint of trade or industry is illegal and void as contrary -to public policy; but such contracts are valid if they operate -merely as a partial restraint, and are made for good consideration, -and not unreasonable. Whether they are -reasonable or not, is for the Court, not the jury, to say. -A contract made with an assistant, or with a partner, -that upon separating from the principal, or partner, he will -not practise within a certain section of country, or for a -certain time, is valid when made in consideration of instruction -to be given, or pecuniary or other benefits to be enjoyed -in consequence of the partnership. The limits must be -reasonable, and when the contract is not to practise within -so many miles of a certain place, the distance will be -measured “as the crow flies,” unless otherwise mentioned (<a id="fnanchor-504" href="#fn-504" class="fnanchor">504</a>).</p> - -<p>Covenants, on the part of an assistant to a surgeon and -apothecary, not to practise on his own account for fourteen -years, in a certain town, or within ten miles of the town; -and not at any time to practise within five, seven, ten, -twenty miles of certain places, have been all respectively -<span class="xxpn" id="p193">|193|</span> -held good (<a id="fnanchor-505" href="#fn-505" class="fnanchor">505</a>). The comparative populousness of the district -forbidden ought not to enter into consideration at all; -and an assistant to a dentist was held bound by a covenant -not to practise in London, notwithstanding that city had a -population of over a million (<a id="fnanchor-506" href="#fn-506" class="fnanchor">506</a>). But a stipulation not to -practise within one hundred miles of York, in consideration -of receiving instruction in dentistry, was held void (<a id="fnanchor-507" href="#fn-507" class="fnanchor">507</a>).</p> - -<p>A promise, whether verbal or written, made without good -consideration by a medical man not to exercise or carry on -his profession within certain limits is void. The stipulations -in a contract not to practise are divisible, and if part -of them be unreasonable, and therefore illegal and void, the -agreement is not void altogether; and the remaining stipulations, -if valid, will not be affected by the illegality of the -others (<a id="fnanchor-508" href="#fn-508" class="fnanchor">508</a>).</p> - -<p>The relations of medical men to their apprentices, assistants -and pupils, are, as a rule, regulated by the ordinary -law of master and servant. No particular words are needed -to create the relationship of master and apprentice, or -master and assistant, the intention of the parties will be -considered, nor need the agreement be in writing, unless it -is not to be performed within a year from the making -thereof (<a id="fnanchor-509" href="#fn-509" class="fnanchor">509</a>). A master is liable on contracts entered into by -his apprentice or assistant, when he has authorized him to -enter into any such contract, either expressly, or by implication. -For instance, if an assistant usually orders drugs -<span class="xxpn" id="p194">|194|</span> -on credit, and the master usually pays, the master will be -held liable to pay for any goods of a similar nature which -the assistant may get for his own and not his master’s use (<a id="fnanchor-510" href="#fn-510" class="fnanchor">510</a>). -The master is also, as a rule, liable to a civil action for the -wrongful acts of his assistant, unless they be beyond the -ordinary scope of his employment; the plaintiff, however, -must prove that the injury was produced by want of proper -skill, where the act complained of is said to have arisen -through want of skill (<a id="fnanchor-511" href="#fn-511" class="fnanchor">511</a>). But the master will not be -criminally responsible for the acts of his assistant or -apprentice, if the latter has caused the death of any one, -unless, indeed, he has expressly commanded or taken part -in the acts (<a id="fnanchor-512" href="#fn-512" class="fnanchor">512</a>). In a case of criminal negligence, the -apprentice himself is responsible; if a party is guilty of -negligence, and death results, the party guilty of that -negligence is also guilty of manslaughter.</p> - -<p>An apprentice, or pupil, cannot be dismissed in as summary -a way as an ordinary servant for misconduct. In one -case it was held that though a person has a right to dismiss -a servant for misconduct, still he has no right to turn away -an apprentice because he misbehaves; and that the case of -a young man, say of seventeen, who under a written -agreement, is placed with a medical man as “pupil and -assistant,” and with whom a premium is paid, is a case -between that of apprenticeship and service; and if such an -one on some occasions comes home intoxicated, this alone -will not justify the surgeon in dismissing him. But if the -“pupil and assistant,” by employing the shop boy to compound -the medicines, occasions real danger to the surgeon’s -practice, this would justify the surgeon in dismissing him -(<a id="fnanchor-513" href="#fn-513" class="fnanchor">513</a>). -<span class="xxpn" id="p195">|195|</span></p> - -<p>Pupils and others admitted to hear the lectures of medical -men, whether such lectures are delivered <i>ex-tempore</i>, or -from memory, or from notes, although they may go -to the extent, if they are able to do so, of taking down the -whole by means of shorthand, can do so only for the -purposes of their own information, and cannot publish the -lectures for profit without the consent of the lecturer -(<a id="fnanchor-514" href="#fn-514" class="fnanchor">514</a>).</p> - -<div class="chapter"> -<h2 class="nobreak" id="p197" title="Index.">INDEX.</h2> - -<div class="index0">A.</div> - -<div class="index1"><span class="smcap">A<span>BORTION—</span></span></div> -<div class="index2">Evidence of experts in cases of, <a href="#p116">116</a>.</div> -<div class="index2">Criminality of, <a href="#p146">146</a>, <a href="#p147">147</a>.</div> - -<div class="index1"><span class="smcap">A<span>CCIDENT—</span></span></div> -<div class="index2">Payment of medical men in cases of, <a href="#p040">40</a>, <a href="#p041">41</a>.</div> - -<div class="index1"><span class="smcap">A<span>CCOUNT—</span></span></div> -<div class="index2">Must be in detail, <a href="#p022">22</a>.</div> - -<div class="index1"><span class="smcap">A<span>DVERTISING</span></span> -<span class="smcap">Q<span>UACKS—</span></span><a href="#p132">132</a>, <a href="#p133">133</a>.</div> - -<div class="index1"><span class="smcap">A<span>MPUTATED</span></span> -<span class="smcap">L<span>IMBS—</span></span></div> -<div class="index2">Ownership of, <a href="#p143">143</a>.</div> - -<div class="index1"><span class="smcap">A<span>NATOMY—</span></span></div> -<div class="index2">A lawful study, <a href="#p154">154</a>, <a href="#p157">157</a>, <a href="#p158">158</a>.</div> -<div class="index2">Hindrances to study of, <a href="#p149">149</a>, <a href="#p152">152</a>.</div> -<div class="index2">In early days, <a href="#p149">149</a>, <a href="#p150">150</a>.</div> -<div class="index2" id="p198a">Provision made for study of, in England, <a href="#p150">150</a>, <a href="#p153">153</a>.</div> -<div class="index2">  —  —  —  —  — in Canada, <a href="#p151">151</a>, <a href="#p156">156</a>.</div> -<div class="index2">  —  —  —  —  — in United States, <a href="#p155">155</a>, <a href="#p156">156</a>.</div> - -<div class="index1"><span class="smcap">A<span>NATOMY</span></span> -<span class="smcap">A<span>CT</span></span> -<span class="smmaj">OF</span> 1832—<a href="#p153">153</a>.</div> - -<div class="index1"><span class="smcap">A<span>NGUINEUM—</span></span><a href="#p002">2</a>.</div> - -<div class="index1"><span class="smcap">A<span>POTHECARIES—</span></span></div> -<div class="index2">In England in early days, <a href="#p011">11</a>.</div> -<div class="index2">Incorporated in England, <a href="#p012">12</a>.</div> -<div class="index2">How regulated, <a href="#p012">12</a>.</div> -<div class="index2">Duties of, <a href="#p012">12</a>.</div> -<div class="index2">Fees of, <a href="#p015">15</a>, <a href="#p016">16</a>.</div> - -<div class="index1"><span class="smcap">A<span>RTIFICIAL</span></span> - <span class="smcap">T<span>EETH.—</span></span><i>See</i> - <span class="smcap">T<span>EETH.</span></span></div> - -<div class="index1"><span class="smcap">A<span>SSAULTS</span></span> - <span class="smmaj">ON</span> - <span class="smcap">P<span>ATIENTS—</span></span></div> -<div class="index2">Attempting carnal intercourse with, <a href="#p144">144</a>.</div> -<div class="index2">Wantonly stripping patient, <a href="#p144">144</a>.</div> -<div class="index2">Taking layman to midwifery case, <a href="#p144">144</a>.</div> -<div class="index2">Liability for committing one as insane, <a href="#p146">146</a>.</div> - -<div class="index1"><span class="smcap">A<span>SSISTANTS</span></span> - <span class="smmaj">AND</span> - <span class="smcap">A<span>PPRENTICES—</span></span></div> -<div class="index2">Rules regulating, <a href="#p193">193</a>.</div> -<div class="index2">Master liable for, civilly, <a href="#p193">193</a>, <a href="#p194">194</a>.</div> -<div class="index2">  — not liable criminally, <a href="#p194">194</a>.</div> -<div class="index2">  — may recover for services of, <a href="#p020">20</a>.</div> -<div class="index2">Misconduct of, <a href="#p194">194</a>.</div> - -<div class="index1"><span class="smcap">A<span>TTENDANCE—</span></span></div> -<div class="index2">Medical men neglecting, <a href="#p072">72</a>, <a href="#p073">73</a>.</div> -<div class="index2">Withdrawing from, <a href="#p073">73</a>, <a href="#p074">74</a>.</div> - -<div class="index0">B.</div> - -<div class="index1"><span class="smcap">B<span>ARBERS—</span></span></div> -<div class="index2">As practitioners, <a href="#p004">4</a>, <a href="#p005">5</a>, <a href="#p006">6</a>.</div> - -<div class="index1"><span class="smcap">B<span>AUNSCHEIDT</span></span> - <span class="smcap">S<span>YSTEM—</span></span></div> -<div class="index2">Layman practising, <a href="#p047">47</a>.</div> -<div class="index2">Liability for using, <a href="#p089">89</a>.</div> - -<div class="index1"><span class="smcap">B<span>ODIES—</span></span></div> -<div class="index2">Supply of, for dissecting, <a href="#p150">150</a>–<a href="#p156">156</a>.</div> - -<div class="index1"><span class="smcap">B<span>ODY-SNATCHING—</span></span><i>See</i> - <span class="smcap">R<span>ESURRECTION,</span></span> <a href="#p152">152</a>–<a href="#p157">157</a>.</div> - -<div class="index1"><span class="smcap">B<span>OOKS—</span></span><i>See</i> - <span class="smcap">S<span>CIENTIFIC</span></span> - <span class="smcap">B<span>OOKS,</span></span> <a href="#p099">99</a>–<a href="#p105">105</a>.</div> - -<div class="index1"><span class="smcap">B<span>OTANIC</span></span> - <span class="smcap">P<span>HYSICIANS—</span></span><a href="#p052">52</a>, <a href="#p054">54</a>, <a href="#p088">88</a>.</div> - -<div class="index0">C.</div> - -<div class="index1"><span class="smcap">C<span>ARELESSNESS—</span></span><i>See</i> - <span class="smcap">N<span>EGLIGENCE.</span></span></div> -<div class="index2">Of patient, <a href="#p067">67</a>–<a href="#p069">69</a>.</div> -<div class="index2">When physician criminally liable for, <a href="#p085">85</a>–<a href="#p088">88</a>, <a href="#p091">91</a>.</div> -<div class="index2">In treating internal diseases, <a href="#p092">92</a>.</div> - -<div class="index1"><span class="smcap">C<span>HARACTER—</span></span></div> -<div class="index2">Defamation of, when actionable, <a href="#p131">131</a>, <a href="#p134">134</a>.</div> - -<div class="index1"><span class="smcap">C<span>HEMIST</span></span> <span class="smmaj">AND</span> - <span class="smcap">D<span>RUGGIST—</span></span><i>See</i> - <span class="smcap">D<span>RUGGISTS.</span></span></div> - -<div class="index1"><span class="smcap">C<span>HLOROFORM—</span></span></div> -<div class="index2">Care needed in using, <a href="#p163">163</a>–<a href="#p166">166</a>.</div> - -<div class="index1"><span class="smcap">C<span>IVIL</span></span> - <span class="smcap">L<span>IABILITY—</span></span></div> -<div class="index2">For negligence—<i>See</i> <span class="smcap">N<span>EGLIGENCE.</span></span></div> -<div class="index2">For stealing corpse, <a href="#p157">157</a>.</div> - -<div class="index1"><span class="smcap">C<span>LAIRVOYANT</span></span> - <span class="smcap">P<span>HYSICIAN—</span></span></div> -<div class="index2">Must be licensed in Maine, <a href="#p052">52</a>.</div> -<div class="index2">Misrepresentations by, <a href="#p142">142</a>.</div> - -<div class="index1"><span class="smcap">C<span>LERICAL</span></span> - <span class="smcap">P<span>RACTITIONERS—</span></span><a href="#p003">3</a>.</div> - -<div class="index1"><span class="smcap">C<span>OMMUNICATIONS</span></span> - <span class="smmaj">BETWEEN</span> - <span class="smcap">P<span>HYSICIAN</span></span> - <span class="smmaj">AND</span> - <span class="smcap">P<span>ATIENT—</span></span></div> -<div class="index2">When not privileged, <a href="#p093">93</a>.</div> -<div class="index2">When privileged, <a href="#p094">94</a>–<a href="#p096">96</a>.</div> - -<div class="index1"><span class="smcap">C<span>ONSULTATIONS—</span></span><a href="#p023">23</a>.</div> - -<div class="index1"><span class="smcap">C<span>ONTAGIOUS</span></span> - <span class="smcap">D<span>ISEASES—</span></span></div> -<div class="index2">Precautions necessary when attending, <a href="#p021">21</a>, <a href="#p143">143</a>.</div> -<div class="index2">Exposing people suffering from, <a href="#p147">147</a>.</div> - -<div class="index1"><span class="smcap">C<span>ONTRIBUTORY</span></span> - <span class="smcap">N<span>EGLIGENCE—</span></span></div> -<div class="index2">Of patient, <a href="#p067">67</a>–<a href="#p069">69</a>.</div> - -<div class="index1"><span class="smcap">C<span>ORPSE—</span></span></div> -<div class="index2">Stealing, <a href="#p152">152</a>.</div> -<div class="index2">Who owns the, <a href="#p153">153</a>.</div> -<div class="index2">Selling, <a href="#p153">153</a>.</div> -<div class="index2">Raising, a misdemeanor, <a href="#p154">154</a>–<a href="#p156">156</a>.</div> -<div class="index2">Civil liability for raising, <a href="#p157">157</a>.</div> -<div class="index2">Exhuming, when ordered, <a href="#p159">159</a>.</div> - -<div class="index1"><span class="smcap">C<span>RIMINAL</span></span> - <span class="smcap">L<span>IABILITY—</span></span><i>See</i> - <span class="smcap">C<span>RIMINAL</span></span> - <span class="smcap">M<span>ALPRACTICE.</span></span></div> - -<div class="index1"><span class="smcap">C<span>RIMINAL</span></span> - <span class="smcap">M<span>ALPRACTICE—</span></span></div> -<div class="index2">Definition of, 55 in, <a href="#p082">82</a>.</div> -<div class="index2">Immaterial whether physician licensed or not, <a href="#p083">83</a>, <a href="#p084">84</a>, <a href="#p091">91</a>.</div> -<div class="index2">What makes, <a href="#p084">84</a>, <a href="#p085">85</a>.</div> -<div class="index2">Physician acting honestly and <i>bonâ fide</i>, <a href="#p089">89</a>, <a href="#p092">92</a>.</div> -<div class="index2">Mistakes of druggists, <a href="#p180">180</a>, <a href="#p181">181</a>.</div> - -<div class="index1"><span class="smcap">C<span>RITICISM—</span></span></div> -<div class="index2">When justifiable, <a href="#p132">132</a>, <a href="#p133">133</a>.</div> - -<div class="index1"><span class="smcap">C<span>URE—</span></span></div> -<div class="index2">Not essential to right to pay, <a href="#p020">20</a>, <a href="#p021">21</a>.</div> -<div class="index2">No cure, no pay, <a href="#p024">24</a>.</div> -<div class="index2">Promising, <a href="#p143">143</a>.</div> -<div class="index2">Curious cures, <a href="#p002">2</a>, <a href="#p003">3</a>, <a href="#p008">8</a>.</div> - -<div class="index1"><span class="smcap">C<span>ONTRACT—</span></span></div> -<div class="index2">Between physician and patient, <a href="#p141">141</a>.</div> -<div class="index2">Not to practice, <a href="#p192">192</a>, <a href="#p193">193</a>.</div> - -<div class="index0">D.</div> - -<div class="index1"><span class="smcap">D<span>AMAGES—</span></span></div> -<div class="index2">For personal injuries, <a href="#p078">78</a>, <a href="#p080">80</a>.</div> -<div class="index2">Rules for determining, <a href="#p078">78</a>, <a href="#p079">79</a>.</div> -<div class="index2">Not recoverable against representatives, <a href="#p080">80</a>.</div> -<div class="index2">In cases of death, <a href="#p080">80</a>, <a href="#p081">81</a>.</div> -<div class="index2">Only one action for same cause, <a href="#p081">81</a>.</div> -<div class="index2">Against negligent druggists, <a href="#p177">177</a>–<a href="#p185">185</a>.</div> -<div class="index2">  —  — dentists, <a href="#p162">162</a>–<a href="#p167">167</a>.</div> - -<div class="index1"><span class="smcap">D<span>EATH—</span></span></div> -<div class="index2">Damages when negligence causes, <a href="#p080">80</a>, <a href="#p081">81</a>.</div> -<div class="index2">Evidence of experts as to cause of, <a href="#p116">116</a>–<a href="#p119">119</a>.</div> - -<div class="index1"><span class="smcap">D<span>ECLARATIONS</span></span> - <span class="smmaj">OF</span> - <span class="smcap">S<span>ICK</span></span> - <span class="smcap">P<span>EOPLE—</span></span></div> -<div class="index2">When evidence, <a href="#p096">96</a>–<a href="#p098">98</a>.</div> - -<div class="index1"><span class="smcap">D<span>EFAMATION—</span></span><a href="#p129">129</a>–<a href="#p137">137</a>.</div> -<div class="index2">What libel, what slander, <a href="#p129">129</a>.</div> -<div class="index2">When actionable, <a href="#p129">129</a>, <i>et seq.</i></div> -<div class="index2">Civil and criminal remedies, <a href="#p130">130</a>.</div> -<div class="index2">Imputing want of knowledge, <a href="#p130">130</a>.</div> -<div class="index2">  — unprofessional conduct, <a href="#p131">131</a>–<a href="#p132">132</a>.</div> -<div class="index2">  — immorality, <a href="#p134">134</a>.</div> -<div class="index2">Holding up to ridicule, <a href="#p132">132</a>.</div> -<div class="index2">Justifiable criticism not, <a href="#p132">132</a>, <a href="#p133">133</a>.</div> -<div class="index2">Evidence in actions for, <a href="#p135">135</a>.</div> -<div class="index2">When physician liable for, <a href="#p135">135</a>–<a href="#p137">137</a>.</div> - -<div class="index1"><span class="smcap">D<span>ENTISTS—</span></span>Chapter XIII.</div> -<div class="index2">Early practitioners, <a href="#p160">160</a>, <a href="#p161">161</a>.</div> -<div class="index2">Subjects of examination for, <a href="#p161">161</a>, <a href="#p162">162</a>.</div> -<div class="index2">In Ontario, must be licensed, <a href="#p162">162</a>.</div> -<div class="index2">Liability for negligence, <a href="#p162">162</a>, <a href="#p167">167</a>.</div> -<div class="index2">Pulling wrong tooth, <a href="#p163">163</a>, <a href="#p167">167</a>.</div> -<div class="index2">Skill requirable, <a href="#p164">164</a>, <a href="#p166">166</a>.</div> -<div class="index2">Acting gratuitously, <a href="#p166">166</a>.</div> -<div class="index2">When services are useless, <a href="#p167">167</a>.</div> -<div class="index2">Are they mechanics? <a href="#p169">169</a>, <a href="#p170">170</a>.</div> -<div class="index2">Defrauding patient, <a href="#p171">171</a>, <a href="#p172">172</a>.</div> -<div class="index2">Appropriating signs of others, <a href="#p172">172</a>.</div> - -<div class="index1"><span class="smcap">D<span>ILIGENCE—</span></span></div> -<div class="index2">Must go along with skill, <a href="#p064">64</a>.</div> - -<div class="index1"><span class="smcap">D<span>IPLOMA—</span></span></div> -<div class="index2"><i>Prima facie</i> proof of skill, <a href="#p064">64</a>.</div> - -<div class="index1"><span class="smcap">D<span>ISCRETION—</span></span></div> -<div class="index2">As to modes of treatment, <a href="#p025">25</a>.</div> -<div class="index2">As to number of visits, <a href="#p063">63</a>.</div> - -<div class="index1"><span class="smcap">D<span>ISSECTION—</span></span></div> -<div class="index2">Provisions made for, <a href="#p150">150</a>, <a href="#p151">151</a>.</div> -<div class="index2">English Anatomy Act, <a href="#p153">153</a>.</div> -<div class="index2">Lawfulness of, considered, <a href="#p157">157</a>, <a href="#p158">158</a>.</div> - -<div class="index1"><span class="smcap">D<span>RUGGISTS—</span></span>Chapter XIV.</div> -<div class="index2">Definition, <a href="#p174">174</a>.</div> -<div class="index2">Old time, <a href="#p175">175</a>.</div> -<div class="index2">Requirements of, <a href="#p175">175</a>–<a href="#p176">176</a>.</div> -<div class="index2">Liability for miscompounding, <a href="#p176">176</a>–<a href="#p178">178</a>.</div> -<div class="index2">  —  — mistakes, <a href="#p177">177</a>–<a href="#p185">185</a>.</div> -<div class="index2">  —  — quality of drug, <a href="#p178">178</a>.</div> -<div class="index2">  — criminally, <a href="#p180">180</a>.</div> -<div class="index2">  — for selling adulterating substances, <a href="#p186">186</a>.</div> -<div class="index2">  —  —  — deleterious drugs, <a href="#p186">186</a>.</div> -<div class="index2">  —  —  — intoxicants, <a href="#p187">187</a>, <a href="#p188">188</a>.</div> -<div class="index2">Warrants drug to be as represented, <a href="#p179">179</a>.</div> -<div class="index2">Label a warranty, <a href="#p179">179</a>–<a href="#p180">180</a>.</div> - -<div class="index1"><span class="smcap">D<span>RUGS—</span></span></div> -<div class="index2">Physician may charge for, <a href="#p024">24</a>.</div> -<div class="index2">Mistakes in selling, <a href="#p177">177</a>–<a href="#p186">186</a>.</div> - -<div class="index1"><span class="smcap">D<span>RUIDS—</span></span><a href="#p001">1</a>–<a href="#p003">3</a>.</div> - -<div class="index1"><span class="smcap">D<span>UEL—</span></span></div> -<div class="index2">Medical man attending, <a href="#p144">144</a>.</div> - -<div class="index1"><span class="smcap">D<span>UTY</span></span> - <span class="smmaj">OF</span> - <span class="smcap">P<span>HYSICIAN—</span></span></div> -<div class="index2">On undertaking charge of patient, <a href="#p057">57</a>.</div> -<div class="index2">Not bound to take charge, <a href="#p057">57</a>.</div> -<div class="index2">To possess ordinary care, diligence and knowledge, <a href="#p058">58</a>–<a href="#p061">61</a>.</div> -<div class="index2">In cases of small-pox, <a href="#p022">22</a>, <a href="#p144">144</a>, <a href="#p147">147</a>.</div> - -<div class="index1"><span class="smcap">D<span>YING</span></span> - <span class="smcap">D<span>ECLARATIONS—</span></span></div> -<div class="index2">Evidence in certain cases, <a href="#p105">105</a>.</div> - -<div class="index0">E.</div> - -<div class="index1"><span class="smcap">E<span>ARLY</span></span> - <span class="smcap">P<span>RACTITIONERS—</span></span>Chapter I.</div> - -<div class="index1"><span class="smcap">E<span>NGLAND—</span></span></div> -<div class="index2">Early practitioners in—Chapter I.</div> -<div class="index2">Who may practice, <a href="#p043">43</a>.</div> -<div class="index2">Women may practice, <a href="#p014">14</a>.</div> - -<div class="index1"><span class="smcap">E<span>NTRIES</span></span> - <span class="smmaj">AGAINST</span> - <span class="smcap">I<span>NTEREST—</span></span></div> -<div class="index2">Admissible as evidence, <a href="#p105">105</a>, <a href="#p106">106</a>.</div> - -<div class="index1"><span class="smcap">E<span>XPERIMENTS—</span></span></div> -<div class="index2">Liability on making, <a href="#p071">71</a>, <a href="#p072">72</a>, <a href="#p168">168</a>.</div> - -<div class="index1"><span class="smcap">E<span>VIDENCE—</span></span><i>See</i> - <span class="smcap">E<span>XPERTS</span></span> - <span class="smmaj">AND</span> - <span class="smcap">E<span>XPERT</span></span> - <span class="smcap">E<span>VIDENCE,</span></span> - <span class="smcap">S<span>CIENTIFIC</span></span> - <span class="smcap">B<span>OOKS.</span></span></div> - -<div class="index1"><span class="smcap">E<span>XPERTS</span></span> - <span class="smmaj">AND</span> - <span class="smcap">E<span>XPERT</span></span> - <span class="smcap">E<span>VIDENCE—</span></span></div> -<div class="index2">Fees to medical witnesses, <a href="#p027">27</a>, <i>et seq.</i></div> -<div class="index2">Excluding at trial, <a href="#p106">106</a>, <a href="#p120">120</a>.</div> -<div class="index2">Limiting number at trial, <a href="#p106">106</a>.</div> -<div class="index2">Rules for guidance, <a href="#p106">106</a>, <a href="#p107">107</a>.</div> -<div class="index2">When evidence of, admitted, <a href="#p108">108</a>, <a href="#p117">117</a>–<a href="#p120">120</a>, <a href="#p127">127</a>.</div> -<div class="index2">Who may be experts, <a href="#p109">109</a>–<a href="#p114">114</a>, <a href="#p128">128</a>.</div> -<div class="index2">The Court decides who may be, <a href="#p113">113</a>, <a href="#p114">114</a>.</div> -<div class="index2">Experts among the Romans, <a href="#p109">109</a>.</div> -<div class="index2">Opinions concerning, <a href="#p110">110</a>, <a href="#p121">121</a>–<a href="#p124">124</a>.</div> -<div class="index2">Need not have made a special study, <a href="#p112">112</a>.</div> -<div class="index2">Better if they have, <a href="#p112">112</a>, <a href="#p127">127</a>.</div> -<div class="index2">Jury to decide weight to be given to, <a href="#p114">114</a>.</div> -<div class="index2">Opinions on morals, <a href="#p115">115</a>.</div> -<div class="index2">Do not speak as to merits, <a href="#p115">115</a>, <a href="#p118">118</a>, <a href="#p125">125</a>, <a href="#p127">127</a>.</div> -<div class="index2">Advisers of the Court, <a href="#p115">115</a>, <a href="#p116">116</a>.</div> -<div class="index2">Should state grounds of opinion, <a href="#p116">116</a>.</div> -<div class="index2">Admissible only as to matters of skill, <a href="#p119">119</a>.</div> -<div class="index2">Are not jurors, <a href="#p119">119</a>, <a href="#p125">125</a>.</div> -<div class="index2">Opinions on opinion, <a href="#p119">119</a>.</div> -<div class="index2">In insanity cases, <a href="#p121">121</a>–<a href="#p128">128</a>.</div> -<div class="index2">What they may be asked, <a href="#p124">124</a>, <a href="#p125">125</a>.</div> -<div class="index2">Must hear all the evidence, <a href="#p126">126</a>.</div> -<div class="index2">Hypothetical cases, how put, <a href="#p126">126</a>, <a href="#p127">127</a>.</div> - -<div class="index0">F.</div> - -<div class="index1"><span class="smcap">F<span>AMILY</span></span> - <span class="smcap">P<span>HYSICIAN—</span></span></div> -<div class="index2">Recommending another, <a href="#p148">148</a>.</div> - -<div class="index1"><span class="smcap">F<span>EES—</span></span><i>See</i> - <span class="smcap">P<span>AYMENT</span></span> - <span class="smmaj">OF</span> - <span class="smcap">M<span>EDICAL</span></span> - <span class="smcap">M<span>EN.</span></span></div> -<div class="index2">Under Roman Law, <a href="#p015">15</a>.</div> -<div class="index2">Of physicians, not recoverable at Common Law, <a href="#p015">15</a>, <a href="#p016">16</a>.</div> -<div class="index2">Recoverable under Medical Act, <a href="#p015">15</a>, <a href="#p017">17</a>.</div> -<div class="index2">Of surgeons and apothecaries, <a href="#p015">15</a>, <a href="#p016">16</a>.</div> -<div class="index2">Of physician and surgeon, <a href="#p016">16</a>.</div> -<div class="index2">In Scotland and the Colonies, <a href="#p017">17</a>.</div> -<div class="index2">In America, <a href="#p017">17</a>.</div> -<div class="index2">No express promise to pay necessary, <a href="#p018">18</a>.</div> -<div class="index2">How fixed, <a href="#p018">18</a>, <a href="#p019">19</a>.</div> -<div class="index2">Must be reasonable, <a href="#p019">19</a>.</div> -<div class="index2">In some countries fixed by law, <a href="#p019">19</a>.</div> -<div class="index2">Services of assistants, <a href="#p020">20</a>.</div> -<div class="index2">Not dependant upon cure, <a href="#p020">20</a>, <a href="#p021">21</a>.</div> -<div class="index2">But services must be of benefit, <a href="#p020">20</a>–<a href="#p024">24</a>, <a href="#p167">167</a>.</div> -<div class="index2">Account should be in detail, <a href="#p023">23</a>.</div> -<div class="index2">For friendly visits, <a href="#p024">24</a>.</div> -<div class="index2">For drugs, <a href="#p024">24</a>.</div> -<div class="index2">Where no cure, no pay, <a href="#p025">25</a>.</div> -<div class="index2">To medical witnesses, <a href="#p026">26</a>, <a href="#p027">27</a>.</div> -<div class="index2">To medical experts, <a href="#p027">27</a>–<a href="#p031">31</a>.</div> -<div class="index2">Exorbitant charges, <a href="#p140">140</a>.</div> -<div class="index2">Who must pay, <a href="#p032">32</a>.</div> - -<div class="index1"><span class="smcap">F<span>RANCE—</span></span></div> -<div class="index2">Who may practise in, <a href="#p044">44</a>.</div> - -<div class="index1"><span class="smcap">F<span>RIEND—</span></span></div> -<div class="index2">Prescribing as, fees, <a href="#p024">24</a>.</div> -<div class="index2">Not medical attendant, <a href="#p024">24</a>.</div> - -<div class="index0">G.</div> - -<div class="index1"><span class="smcap">G<span>ERMANY—</span></span></div> -<div class="index2">Who may practise in, <a href="#p044">44</a>.</div> - -<div class="index1"><span class="smcap">G<span>IFTS</span></span> - <span class="smcap">T<span>O</span></span> - <span class="smcap">M<span>EDICAL</span></span> - <span class="smcap">M<span>EN—</span></span></div> -<div class="index2">Are closely watched, <a href="#p139">139</a>.</div> -<div class="index2">When set aside, <a href="#p139">139</a>, <a href="#p140">140</a>.</div> -<div class="index2">When sustained, <a href="#p140">140</a>, <a href="#p141">141</a>.</div> - -<div class="index1"><span class="smcap">G<span>OODWILL—</span></span></div> -<div class="index2">In professional partnerships, <a href="#p191">191</a>.</div> -<div class="index2">Sale of, <a href="#p191">191</a>.</div> - -<div class="index1"><span class="smcap">G<span>RATUITOUS</span></span> - <span class="smcap">S<span>ERVICES—</span></span></div> -<div class="index2">Liability of physicians for, <a href="#p061">61</a>, <a href="#p065">65</a>, <a href="#p066">66</a>.</div> -<div class="index2">  —  — unprofessional men, <a href="#p066">66</a>, <a href="#p067">67</a>.</div> -<div class="index2">  —  — dentists, <a href="#p166">166</a>.</div> - -<div class="index1"><span class="smcap">G<span>ROSS</span></span> - <span class="smcap">N<span>EGLIGENCE—</span></span></div> -<div class="index2">What is, <a href="#p087">87</a>, <a href="#p088">88</a>.</div> -<div class="index2">Liability for, <a href="#p055">55</a>.</div> - -<div class="index0">H.</div> - -<div class="index1"><span class="smcap">H<span>AIR-DYE—</span></span></div> -<div class="index2">Noxious, damages for, <a href="#p182">182</a>.</div> - -<div class="index1"><span class="smcap">H<span>OMŒOPATHISTS—</span></span></div> -<div class="index2">Regulations as to, in Ontario, <a href="#p066">66</a>.</div> -<div class="index2">Are Physicians in New York, <a href="#p050">50</a>, <a href="#p054">54</a>.</div> -<div class="index2">Are not Quacks, <a href="#p132">132</a>.</div> -<div class="index2">Consulting with, <a href="#p134">134</a>.</div> - -<div class="index1"><span class="smcap">H<span>USBAND—</span></span></div> -<div class="index2">When liable for attendance on wife, <a href="#p035">35</a>, <a href="#p039">39</a>.</div> -<div class="index2">When liable for artificial teeth for wife, <a href="#p171">171</a>.</div> -<div class="index2">Suing druggist for damages to wife’s health, <a href="#p186">186</a>.</div> - -<div class="index1"><span class="smcap">H<span>YPOTHETICAL</span></span> - <span class="smcap">C<span>ASE—</span></span></div> -<div class="index2">How put, <a href="#p126">126</a>, <a href="#p127">127</a>.</div> - -<div class="index0">I.</div> - -<div class="index1"><span class="smcap">I<span>GNORANCE—</span></span></div> -<div class="index2">Liability for gross ignorance, <a href="#p055">55</a>–<a href="#p061">61</a>.</div> -<div class="index2">Criminal liability for gross, <a href="#p055">55</a>–<a href="#p088">88</a>, <a href="#p091">91</a>, <a href="#p092">92</a>.</div> -<div class="index2">Imputing, when actionable, <a href="#p130">130</a>.</div> - -<div class="index1"><span class="smcap">I<span>MMORALITY—</span></span></div> -<div class="index2">When actionable to impute, <a href="#p134">134</a>.</div> - -<div class="index1"><span class="smcap">I<span>MPROPER</span></span> - <span class="smcap">T<span>REATMENT—</span></span></div> -<div class="index2">When a defence to action, <a href="#p020">20</a>–<a href="#p024">24</a>, <a href="#p167">167</a>.</div> -<div class="index2">Charges for, <a href="#p020">20</a>, <a href="#p022">22</a>, <a href="#p167">167</a>.</div> - -<div class="index1"><span class="smcap">I<span>NFANT—</span></span></div> -<div class="index2">Medicines and medical aid, necessary for, <a href="#p039">39</a>.</div> - -<div class="index1"><span class="smcap">I<span>NFECTIOUS</span></span> - <span class="smcap">D<span>ISORDERS—</span></span></div> -<div class="index2">Exposing persons suffering from, <a href="#p147">147</a>.</div> -<div class="index2">Duty of physicians in cases of, <a href="#p022">22</a>, <a href="#p143">143</a>, <a href="#p147">147</a>.</div> - -<div class="index1"><span class="smcap">I<span>NSANE</span></span> - <span class="smcap">P<span>ATIENT—</span></span></div> -<div class="index2">Not liable for negligence, <a href="#p069">69</a>.</div> - -<div class="index1"><span class="smcap">I<span>NSANITY</span></span> - <span class="smcap">C<span>ASES—</span></span></div> -<div class="index2">Evidence of experts, <a href="#p121">121</a>–<a href="#p128">128</a>.</div> -<div class="index2">Opinions concerning, experts in, <a href="#p121">121</a>–<a href="#p124">124</a>.</div> -<div class="index2">When expert evidence admissible, <a href="#p124">124</a>.</div> -<div class="index2">How to examine witnesses, <a href="#p124">124</a>–<a href="#p125">125</a>.</div> -<div class="index2">Putting hypothetical cases, <a href="#p126">126</a>, <a href="#p127">127</a>.</div> -<div class="index2">Evidence of non-experts, <a href="#p128">128</a>.</div> -<div class="index2">Experts can only give opinions, <a href="#p129">129</a>.</div> -<div class="index2">Liability for committing in, <a href="#p145">145</a>–<a href="#p146">146</a>.</div> -<div class="index2">Requisites for committal, <a href="#p146">146</a>.</div> - -<div class="index1"><span class="smcap">I<span>NTOXICATING</span></span> - <span class="smcap">L<span>IQUORS—</span></span></div> -<div class="index2">When unlawful to give, <a href="#p148">148</a>.</div> -<div class="index2">Druggists selling, <a href="#p187">187</a>–<a href="#p188">188</a>.</div> - -<div class="index1"><span class="smcap">I<span>RELAND—</span></span></div> -<div class="index2">Early practitioners in, <a href="#p006">6</a>.</div> - -<div class="index0">L.</div> - -<div class="index1"><span class="smcap">L<span>ABEL</span></span> - <span class="smmaj">OF</span> - <span class="smcap">D<span>RUGGIST—</span></span></div> -<div class="index2">Is a warranty, <a href="#p179">179</a>–<a href="#p180">180</a>.</div> - -<div class="index1"><span class="smcap">L<span>ECTURES—</span></span></div> -<div class="index2">Cannot be published by students attending them, <a href="#p195">195</a>.</div> - -<div class="index1"><span class="smcap">L<span>IBEL—</span></span><i>See</i> - <span class="smcap">D<span>EFAMATION.</span></span></div> - -<div class="index0">M.</div> - -<div class="index1"><span class="smcap">M<span>ALPRACTICE—</span></span><i>See</i> - <span class="smcap">C<span>RIMINAL</span></span> - <span class="smcap">M<span>ALPRACTICE.</span></span></div> -<div class="index2">Defined, <a href="#p055">55</a>.</div> -<div class="index2">Consequences of, <a href="#p055">55</a>.</div> -<div class="index2">Civil and criminal, <a href="#p055">55</a>, <a href="#p056">56</a>, <a href="#p083">83</a>.</div> -<div class="index2">Some injury must be proved, <a href="#p076">76</a>.</div> -<div class="index2">Is a question for the jury, <a href="#p076">76</a>.</div> -<div class="index2">Cases of, should be construed in favor of physician, <a href="#p076">76</a>, <a href="#p077">77</a>.</div> -<div class="index2">Cases against physician rare, <a href="#p077">77</a>.</div> -<div class="index2">Actionable to charge one with, <a href="#p133">133</a>.</div> - -<div class="index1"><span class="smcap">M<span>ANIPULATION—</span></span></div> -<div class="index2">Practising, without license, <a href="#p051">51</a>.</div> - -<div class="index1"><span class="smcap">M<span>ANSLAUGHTER—</span></span><i>See</i> - <span class="smcap">C<span>RIMINAL</span></span> - <span class="smcap">M<span>ALPRACTICE.</span></span></div> -<div class="index2">Physicians acting honestly and <i>bonâ fide</i>, <a href="#p089">89</a>, <a href="#p090">90</a>.</div> -<div class="index2">Druggist making mistake, <a href="#p180">180</a>–<a href="#p184">184</a>.</div> - -<div class="index1"><span class="smcap">M<span>ASTER</span></span> - <span class="smmaj">AND</span> - <span class="smcap">S<span>ERVANT—</span></span><i>See</i> - <span class="smcap">A<span>SSISTANTS</span></span> - <span class="smmaj">AND</span> - <span class="smcap">A<span>PPRENTICES.</span></span></div> -<div class="index2">Payment of medical attendance, <a href="#p040">40</a>.</div> - -<div class="index1"><span class="smcap">M<span>EDICAL</span></span> - <span class="smcap">A<span>CT</span></span> - <span class="smmaj">OF</span> - <span class="smcap">E<span>NGLAND—</span></span></div> -<div class="index2">Recovery of fees under, <a href="#p017">17</a>.</div> - -<div class="index1"><span class="smcap">M<span>EDICAL</span></span> - <span class="smcap">A<span>CT</span></span> - <span class="smmaj">OF</span> - <span class="smcap">O<span>NTARIO—</span></span></div> -<div class="index2">Recovery of fees under, <a href="#p017">17</a>.</div> - -<div class="index1"><span class="smcap">M<span>EDICAL</span></span> - <span class="smcap">M<span>AN—</span></span></div> -<div class="index2">Chaucer’s definition of, <a href="#p007">7</a>.</div> -<div class="index2">Had to be graduates in old times, <a href="#p007">7</a>.</div> -<div class="index2">Divisions under Henry VIII, <a href="#p008">8</a>.</div> -<div class="index2">Qualifications necessary to practise, <a href="#p009">9</a>, <a href="#p048">48</a>.</div> -<div class="index2">Qualifications under Henry VIII, <a href="#p010">10</a>.</div> -<div class="index2">No branches in America or Colonies, <a href="#p017">17</a>.</div> -<div class="index2">Discretion as to mode of treatment, <a href="#p025">25</a>.</div> -<div class="index2">As witnesses, <a href="#p026">26</a>.</div> -<div class="index2">Who must pay, <a href="#p032">32</a>–<a href="#p041">41</a>.</div> -<div class="index2">Who may practise, <a href="#p042">42</a>.</div> -<div class="index2">The law favors no school, <a href="#p042">42</a>, <a href="#p047">47</a>.</div> -<div class="index2">Must practise according to school, <a href="#p052">52</a>, <a href="#p053">53</a>, <a href="#p054">54</a>.</div> -<div class="index2">One practising liable as, <a href="#p054">54</a>.</div> -<div class="index2">Duties when assuming charge, <a href="#p057">57</a>, <a href="#p072">72</a>, <a href="#p073">73</a>.</div> -<div class="index2">Must exercise ordinary care and diligence, <a href="#p058">58</a>.</div> -<div class="index2">Must keep up with the age, <a href="#p061">61</a>, <a href="#p071">71</a>.</div> -<div class="index2">Not liable for bad nursing, <a href="#p070">70</a>.</div> -<div class="index2">Rashly trying new experiments, <a href="#p071">71</a>.</div> -<div class="index2">Accepting retainer must attend, <a href="#p072">72</a>, <a href="#p073">73</a>.</div> -<div class="index2">Withdrawing from attendance, <a href="#p073">73</a>, <a href="#p074">74</a>.</div> -<div class="index2">Liability when not employed by patient, <a href="#p074">74</a>.</div> -<div class="index2">Action against, for defamation, <a href="#p135">135</a>–<a href="#p137">137</a>.</div> -<div class="index2">Administering intoxicants, <a href="#p148">148</a>.</div> -<div class="index2">Relations with patients, <a href="#p138">138</a>–<a href="#p146">146</a>.</div> -<div class="index2">Care necessary in choosing, <a href="#p148">148</a>.</div> - -<div class="index1"><span class="smcap">M<span>EDICINE—</span></span></div> -<div class="index2">When first studied in England, <a href="#p006">6</a>.</div> -<div class="index2">First statute concerning, <a href="#p008">8</a>.</div> -<div class="index2">Evidence of experts as to, <a href="#p118">118</a>.</div> - -<div class="index1"><span class="smcap">M<span>EMORANDA—</span></span></div> -<div class="index2">When may be used in court, <a href="#p098">98</a>.</div> - -<div class="index1"><span class="smcap">M<span>IDWIFE—</span></span></div> -<div class="index2">Defamatory words when actionable, <a href="#p130">130</a>.</div> - -<div class="index1"><span class="smcap">M<span>ISREPRESENTATIONS—</span></span></div> -<div class="index2">To obtain money, <a href="#p142">142</a>, <a href="#p143">143</a>.</div> - -<div class="index1"><span class="smcap">M<span>ISTLETOE—</span></span><a href="#p001">1</a>.</div> - -<div class="index1"><span class="smcap">M<span>ORALS—</span></span></div> -<div class="index2">Expert opinions on, <a href="#p115">115</a>.</div> - -<div class="index0">N.</div> - -<div class="index1"><span class="smcap">N<span>ECESSARIES—</span></span></div> -<div class="index2">Medicine and medical aid, <a href="#p035">35</a>, <a href="#p039">39</a>.</div> -<div class="index2">Artificial teeth, <a href="#p171">171</a>.</div> - -<div class="index1"><span class="smcap">N<span>EGLIGENCE</span></span> - <span class="smmaj">OF</span> - <span class="smcap">M<span>EDICAL</span></span> - <span class="smcap">M<span>EN—</span></span></div> -<div class="index2">Communicating contagious diseases, <a href="#p022">22</a>.</div> -<div class="index2">Liability for gross negligence, <a href="#p055">55</a>.</div> -<div class="index2">Judged from legal stand point, <a href="#p056">56</a>.</div> -<div class="index2">Defined, <a href="#p056">56</a>, <a href="#p057">57</a>.</div> -<div class="index2">Liability for, when causing injury, <a href="#p057">57</a>, <a href="#p063">63</a>, <a href="#p167">167</a>.</div> -<div class="index2">Medical men must exercise reasonable care and diligence, <a href="#p058">58</a>.</div> -<div class="index2">Sex no excuse, <a href="#p061">61</a>.</div> -<div class="index2">Where services are gratuitous, <a href="#p065">65</a>.</div> -<div class="index2">  —  —  — voluntary, <a href="#p065">65</a>, <a href="#p066">66</a>.</div> -<div class="index2">Proximate cause, <a href="#p069">69</a>.</div> -<div class="index2">When requested to perform operation, <a href="#p069">69</a>.</div> -<div class="index2">Aggravated by nursing, <a href="#p070">70</a>.</div> -<div class="index2">General reputation unavailing, <a href="#p071">71</a>, <a href="#p086">86</a>.</div> -<div class="index2">Injurious treatment, <a href="#p072">72</a>.</div> -<div class="index2">Neglecting to attend, <a href="#p072">72</a>, <a href="#p073">73</a>.</div> -<div class="index2">Where not employed by patient, <a href="#p074">74</a>, <a href="#p075">75</a>.</div> -<div class="index2">Not liable for every mistake, <a href="#p075">75</a>.</div> -<div class="index2">Is a question for the jury, <a href="#p076">76</a>.</div> -<div class="index2">Amount of damages recoverable, <a href="#p078">78</a>–<a href="#p080">80</a>.</div> -<div class="index2">Action for, does not survive against representatives, <a href="#p080">80</a>.</div> -<div class="index2">Where death is caused by, <a href="#p080">80</a>, <a href="#p081">81</a>.</div> -<div class="index2">Criminal negligence, <a href="#p082">82</a>–<a href="#p085">85</a>.</div> -<div class="index2">Immaterial whether physician licensed or not, <a href="#p083">83</a>, <a href="#p084">84</a>.</div> -<div class="index2">Acting <i>bona fide</i> no criminal liability, <a href="#p089">89</a>, <a href="#p090">90</a>.</div> -<div class="index2">Patient affected by mortal disease, <a href="#p090">90</a>, <a href="#p091">91</a>.</div> -<div class="index2">Imputing want of skill, when actionable, <a href="#p130">130</a>, <a href="#p133">133</a>.</div> -<div class="index2">Of dentists, <a href="#p162">162</a>, <i>et seq.</i></div> -<div class="index2">Of druggists, <a href="#p177">177</a>, <i>et seq.</i></div> - -<div class="index1"><span class="smcap">N<span>EGLIGENCE</span></span> - <span class="smmaj">OF</span> - <span class="smcap">P<span>ATIENT—</span></span></div> -<div class="index2">Responsible for careless choice of physician, <a href="#p053">53</a>.</div> -<div class="index2">Knowledge of physician’s ignorance, <a href="#p057">57</a>, <a href="#p067">67</a>.</div> -<div class="index2">Disobeying or neglecting orders, <a href="#p067">67</a>, <a href="#p068">68</a>.</div> -<div class="index2">What is contributory negligence, <a href="#p068">68</a>.</div> -<div class="index2">Insane patient’s negligence, <a href="#p069">69</a>.</div> - -<div class="index1"><span class="smcap">N<span>EW</span></span> - <span class="smcap">Y<span>ORK—</span></span></div> -<div class="index2">Who may practise in, <a href="#p049">49</a>–<a href="#p051">51</a>.</div> - -<div class="index1"><span class="smcap">N<span>URSING—</span></span></div> -<div class="index2">Aggravating the case, <a href="#p070">70</a>.</div> -<div class="index2">Liability of medical man for, <a href="#p070">70</a>.</div> - -<div class="index0" id="p209">O.</div> - -<div class="index1"><span class="smcap">O<span>NTARIO—</span></span></div> -<div class="index2">Who may practise medicine in, <a href="#p045">45</a>.</div> -<div class="index2">  —  —  — dentistry in, <a href="#p162">162</a>.</div> -<div class="index2">  —  —  — as druggists in, <a href="#p176">176</a>.</div> - -<div class="index1"><span class="smcap">O<span>PINION—</span></span><i>See</i> - <span class="smcap">E<span>XPERT</span></span> - <span class="smcap">E<span>VIDENCE.</span></span></div> - -<div class="index0">P.</div> - -<div class="index1"><span class="smcap">P<span>ARENT</span></span> - <span class="smmaj">AND</span> - <span class="smcap">C<span>HILD—</span></span></div> -<div class="index2">Liability of parent for doctor’s bill, <a href="#p033">33</a>.</div> -<div class="index2">Rule in England and United States, <a href="#p037">37</a>, <a href="#p038">38</a>.</div> -<div class="index2">Statutory liability in England, <a href="#p038">38</a>, <a href="#p039">39</a>.</div> - -<div class="index1"><span class="smcap">P<span>ARTNERSHIP</span></span> - <span class="smcap">A<span>MONG</span></span> - <span class="smcap">M<span>EDICAL</span></span> - <span class="smcap">M<span>EN—</span></span></div> -<div class="index2">Definition of, <a href="#p189">189</a>.</div> -<div class="index2">General rules applicable, <a href="#p189">189</a>.</div> -<div class="index2">Fraudulently inducing one to enter into, <a href="#p189">189</a>.</div> -<div class="index2">Conduct of partners, <a href="#p190">190</a>.</div> -<div class="index2">Dissolution, <a href="#p190">190</a>.</div> -<div class="index2">Interest of survivor, <a href="#p191">191</a>.</div> - -<div class="index1"><span class="smcap">P<span>ATIENT—</span></span><i>See</i> - <span class="smcap">R<span>ELATIONS</span></span> - <span class="smmaj">WITH.</span></div> -<div class="index2">Calling homœopath, <a href="#p054">54</a>.</div> -<div class="index2">Physician not bound to take, <a href="#p057">57</a>, <a href="#p072">72</a>.</div> -<div class="index2">Must exercise prudence in selecting doctor, <a href="#p067">67</a>.</div> -<div class="index2">Must co-operate with doctor, <a href="#p067">67</a>, <a href="#p068">68</a>.</div> -<div class="index2">Must exercise ordinary care and prudence, <a href="#p068">68</a>, <a href="#p069">69</a>.</div> -<div class="index2">Physician withdrawing from, <a href="#p073">73</a>, <a href="#p074">74</a>.</div> -<div class="index2">Not employing physician, <a href="#p074">74</a>, <a href="#p075">75</a>.</div> -<div class="index2">Suffering from mortal disease, <a href="#p090">90</a>, <a href="#p091">91</a>.</div> -<div class="index2">Submitting to dangerous operation, <a href="#p091">91</a>.</div> -<div class="index2">Communication with physician not privileged, <a href="#p093">93</a>.</div> - -<div class="index1"><span class="smcap">P<span>AYMENT</span></span> - <span class="smmaj">OF</span> - <span class="smcap">M<span>EDICAL</span></span> - <span class="smcap">M<span>EN—</span></span><i>See</i> - <span class="smcap">F<span>EES.</span></span></div> -<div class="index2">Physician called in by stranger, <a href="#p032">32</a>–<a href="#p035">35</a>.</div> -<div class="index2">Wife may bind husband for, <a href="#p035">35</a>, <a href="#p036">36</a>.</div> -<div class="index2">As between parent and child, <a href="#p035">35</a>–<a href="#p039">39</a>.</div> -<div class="index2">  —  — master and servant, <a href="#p040">40</a>.</div> -<div class="index2">Paupers, <a href="#p040">40</a>.</div> -<div class="index2">Liability of railways in accidents, <a href="#p040">40</a>, <a href="#p041">41</a>.</div> - -<div class="index1"><span class="smcap">P<span>ECULIAR</span></span> - <span class="smcap">P<span>EOPLE—</span></span><a href="#p038">38</a>, <a href="#p039">39</a>.</div> - -<div class="index1"><span class="smcap">P<span>ERSIA—</span></span></div> -<div class="index2">Medical fees in, <a href="#p019">19</a>.</div> - -<div class="index1"><span class="smcap">P<span>HARMACY,</span></span> - <span class="smcap">C<span>OLLEGE</span></span> - <span class="smmaj">OF—</span></div> -<div class="index2">In Ontario, <a href="#p175">175</a>, <a href="#p176">176</a>.</div> - -<div class="index1"><span class="smcap">P<span>OISONS—</span></span></div> -<div class="index2">Should be marked, <a href="#p184">184</a>.</div> -<div class="index2">Selling illegally, <a href="#p185">185</a>.</div> - -<div class="index1"><span class="smcap">P<span>OST</span></span> - <span class="smcap">M<span>ORTEM—</span></span></div> -<div class="index2">Fees for, <a href="#p027">27</a>.</div> - -<div class="index1"><span class="smcap">P<span>RACTISE—</span></span></div> -<div class="index2">Who may, <a href="#p042">42</a>, <i>et seq.</i></div> -<div class="index2">Contracts not to, <a href="#p192">192</a>, <a href="#p193">193</a>.</div> - -<div class="index1"><span class="smcap">P<span>RACTICE—</span></span></div> -<div class="index2">Sale of, <a href="#p191">191</a>, <a href="#p192">192</a>.</div> - -<div class="index1"><span class="smcap">P<span>RIVILEGED</span></span> - <span class="smcap">C<span>OMMUNICATIONS—</span></span></div> -<div class="index2">Communications between physician and patient not, <a href="#p093">93</a>.</div> -<div class="index2">Are by statute in some States, <a href="#p094">94</a>, <a href="#p095">95</a>.</div> -<div class="index2">Must be lawful to be, <a href="#p095">95</a>.</div> -<div class="index2">Necessary for physician to prescribe, <a href="#p095">95</a>.</div> -<div class="index2">Report of officer of insurance company, <a href="#p096">96</a>.</div> -<div class="index2">Defamatory statements when, <a href="#p136">136</a>, <a href="#p137">137</a>.</div> - -<div class="index1"><span class="smcap">P<span>ROFESSIONAL</span></span> - <span class="smcap">E<span>VIDENCE—</span></span></div> -<div class="index2">Representation by patient as to malady, <a href="#p096">96</a>–<a href="#p098">98</a>.</div> -<div class="index2">Mem. made by physician, <a href="#p098">98</a>, <a href="#p105">105</a>.</div> -<div class="index2">Scientific books not admissible, <a href="#p099">99</a>–<a href="#p105">105</a>.</div> -<div class="index2">Dying declarations when admissible, <a href="#p105">105</a>.</div> -<div class="index2">Entries against interest admissible, <a href="#p105">105</a>.</div> -<div class="index2">Rules for guidance of medical witness, <a href="#p106">106</a>, <a href="#p107">107</a>.</div> -<div class="index2">Exclusion of experts, <a href="#p120">120</a>.</div> - -<div class="index0">Q.</div> - -<div class="index1"><span class="smcap">Q<span>UACKS—</span></span></div> -<div class="index2">When medical men may be called, <a href="#p133">133</a>, <a href="#p134">134</a>.</div> -<div class="index2">When not, <a href="#p132">132</a>.</div> - -<div class="index0">R.</div> - -<div class="index1"><span class="smcap">R<span>ASHNESS—</span></span><a href="#p086">86</a>.</div> - -<div class="index1"><span class="smcap">R<span>EGISTRATION</span></span> - <span class="smmaj">OF</span> - <span class="smcap">M<span>EDICAL</span></span> - <span class="smcap">M<span>EN—</span></span></div> -<div class="index2">Before recovery of fees, <a href="#p017">17</a>, <a href="#p018">18</a>, <a href="#p045">45</a>.</div> -<div class="index2">Before practice in England and Ontario, <a href="#p044">44</a>, <a href="#p045">45</a>.</div> -<div class="index2">Who may be registered in England, <a href="#p044">44</a>.</div> -<div class="index2">  —  —  —  —  — Ontario, <a href="#p045">45</a>.</div> -<div class="index2">Non-registered practitioners are quacks, <a href="#p133">133</a>.</div> -<div class="index2">Striking off registry for felony, <a href="#p148">148</a>.</div> - -<div class="index1"><span class="smcap">R<span>EGULAR</span></span> - <span class="smcap">P<span>HYSICIAN—</span></span></div> -<div class="index2">An allopathic, <a href="#p051">51</a>.</div> - -<div class="index1"><span class="smcap">R<span>EPRESENTATION</span></span> - <span class="smmaj">BY</span> - <span class="smcap">P<span>ATIENT—</span></span></div> -<div class="index2">As to malady, when evidence, <a href="#p096">96</a>–<a href="#p098">98</a>.</div> - -<div class="index1"><span class="smcap">R<span>EPUTATION—</span></span></div> -<div class="index2">Unavailing in accidents for negligence, <a href="#p071">71</a>, <a href="#p086">86</a>.</div> - -<div class="index1"><span class="smcap">R<span>ESTRAINT</span></span> - <span class="smmaj">OF</span> - <span class="smcap">T<span>RADE—</span></span></div> -<div class="index2">When such contracts are allowable, <a href="#p192">192</a>, <a href="#p193">193</a>.</div> - -<div class="index1"><span class="smcap">R<span>ESURRECTION—</span></span></div> -<div class="index2">Stealing winding sheet, <a href="#p152">152</a>.</div> -<div class="index2">Taking body a misdemeanor, <a href="#p154">154</a>.</div> -<div class="index2">Assisting at, <a href="#p156">156</a>.</div> -<div class="index2">Civil liability for, <a href="#p157">157</a>.</div> -<div class="index2">Ordered in proper cases, <a href="#p159">159</a>.</div> - -<div class="index1"><span class="smcap">R<span>ELATIONS</span></span> - <span class="smmaj">WITH</span> - <span class="smcap">P<span>ATIENTS—</span></span></div> -<div class="index2">No one can take advantage of a trust reposed, <a href="#p138">138</a>.</div> -<div class="index2">Practitioner must shew fairness of dealings with patients, <a href="#p138">138</a>.</div> -<div class="index2">Undue influence, when inferred, <a href="#p138">138</a>–<a href="#p140">140</a>.</div> -<div class="index2">Gifts to medical men set aside, <a href="#p139">139</a>, <a href="#p140">140</a>.</div> -<div class="index2">Exorbitant charges relieved against, <a href="#p140">140</a>.</div> -<div class="index2">When patient has independent advice, <a href="#p140">140</a>, <a href="#p141">141</a>.</div> -<div class="index2">Contracts open and fair, <a href="#p141">141</a>.</div> -<div class="index2">Wills in favour of medical men, <a href="#p141">141</a>, <a href="#p142">142</a>.</div> -<div class="index2">Misrepresentations by medical men, <a href="#p142">142</a>.</div> -<div class="index2">Promises of cure, <a href="#p143">143</a>.</div> -<div class="index2">Duties in cases of small-pox, <a href="#p143">143</a>.</div> -<div class="index2">Right to limbs, <a href="#p143">143</a>.</div> -<div class="index2">Assaults on patients, <a href="#p144">144</a>–<a href="#p146">146</a>.</div> - -<div class="index1"><span class="smcap">R<span>OYAL</span></span> - <span class="smcap">C<span>OLLEGE</span></span> - <span class="smmaj">OF</span> - <span class="smcap">P<span>HYSICIANS.</span></span> Edinburgh—<a href="#p011">11</a>.</div> - -<div class="index1"><span class="smcap">R<span>OYAL</span></span> - <span class="smcap">C<span>OLLEGE</span></span> - <span class="smmaj">OF</span> - <span class="smcap">P<span>HYSICIANS.</span></span> Ireland—<a href="#p011">11</a>.</div> - -<div class="index1"><span class="smcap">R<span>OYAL</span></span> - <span class="smcap">C<span>OLLEGE</span></span> - <span class="smmaj">OF</span> - <span class="smcap">P<span>HYSICIANS.</span></span> London—<a href="#p009">9</a>.</div> - -<div class="index0">S.</div> - -<div class="index1"><span class="smcap">S<span>ALE</span></span> - <span class="smmaj">OF</span> - <span class="smcap">P<span>RACTISE—</span></span><a href="#p191">191</a>, <a href="#p192">192</a>.</div> - -<div class="index1"><span class="smcap">S<span>CHOOLS</span></span> - <span class="smmaj">OF</span> - <span class="smcap">M<span>EDICINE—</span></span></div> -<div class="index2">The law favors no school, <a href="#p042">42</a>, <a href="#p043">43</a>, <a href="#p047">47</a>, <a href="#p051">51</a>, <a href="#p115">115</a>.</div> -<div class="index2">Physician must practise according to his school, <a href="#p052">52</a>.</div> -<div class="index2">Considered in determining skill needed, <a href="#p063">63</a>, <a href="#p064">64</a>.</div> -<div class="index2">Experts may be of any school, <a href="#p115">115</a>.</div> - -<div class="index1"><span class="smcap">S<span>CIENTIFIC</span></span> - <span class="smcap">B<span>OOKS—</span></span></div> -<div class="index2">Not admissible as evidence, <a href="#p099">99</a>.</div> -<div class="index2">Rule different in Iowa and Wisconsin, <a href="#p100">100</a>.</div> -<div class="index2">Cannot be read to jury, <a href="#p100">100</a>–<a href="#p103">103</a>.</div> -<div class="index2">Can be used to test witness, <a href="#p101">101</a>.</div> -<div class="index2">Can be read to jury in some States, <a href="#p103">103</a>–<a href="#p105">105</a>.</div> -<div class="index2">When cannot be quoted to jury, <a href="#p105">105</a>.</div> -<div class="index2">Can be read to the court, <a href="#p105">105</a>.</div> - -<div class="index1"><span class="smcap">S<span>COTLAND—</span></span></div> -<div class="index2">Early practitioners in, <a href="#p005">5</a>.</div> - -<div class="index1"><span class="smcap">S<span>IGN—</span></span></div> -<div class="index2">An evidence of professional character, <a href="#p064">64</a>.</div> -<div class="index2">Of dentists in old days, <a href="#p161">161</a>.</div> -<div class="index2">Misleading, <a href="#p173">173</a>.</div> - -<div class="index1"><span class="smcap">S<span>KILL—</span></span></div> -<div class="index2">Physician must have ordinary, <a href="#p057">57</a>, <a href="#p058">58</a>.</div> -<div class="index2">What is ordinary, or reasonable skill, <a href="#p059">59</a>.</div> -<div class="index2">Amount required, <a href="#p059">59</a>–<a href="#p062">62</a>.</div> -<div class="index2">  —  — varies, <a href="#p060">60</a>, <a href="#p061">61</a>.</div> -<div class="index2">Liability if skill not applied, <a href="#p062">62</a>.</div> -<div class="index2">Skill and diligence must be joined, <a href="#p063">63</a>.</div> -<div class="index2">School considered in determining, <a href="#p064">64</a>.</div> -<div class="index2">Proof of skill, <a href="#p064">64</a>.</div> -<div class="index2">Required in non-professional, <a href="#p064">64</a>, <a href="#p065">65</a>.</div> -<div class="index2">  —  — volunteer, <a href="#p065">65</a>.</div> -<div class="index2">  —  — gratuitous services, <a href="#p065">65</a>, <a href="#p066">66</a>.</div> -<div class="index2">  —  — dentists, <a href="#p162">162</a>.</div> - -<div class="index1"><span class="smcap">S<span>LANDER—</span></span><i>See</i> - <span class="smcap">D<span>EFAMATION.</span></span></div> - -<div class="index1"><span class="smcap">S<span>MALL-POX—</span></span></div> -<div class="index2">Duties of physician in cases of, <a href="#p143">143</a>.</div> -<div class="index2">Innoculation, <a href="#p147">147</a>.</div> -<div class="index2">Exposing patients with, <a href="#p147">147</a>.</div> - -<div class="index1"><span class="smcap">S<span>MITHS—</span></span></div> -<div class="index2">As practitioners, <a href="#p004">4</a>.</div> - -<div class="index1"><span class="smcap">S<span>UPERSTITIOUS</span></span> - <span class="smcap">P<span>RACTICES—</span></span><a href="#p002">2</a>, <a href="#p003">3</a>, <a href="#p008">8</a>.</div> - -<div class="index1"><span class="smcap">S<span>URGEONS—</span></span></div> -<div class="index2">United with barbers, <a href="#p004">4</a>–<a href="#p006">6</a>.</div> -<div class="index2">Union dissolved, <a href="#p005">5</a>.</div> -<div class="index2">Qualification under Henry VIII, <a href="#p009">9</a>.</div> -<div class="index2">Fees, <a href="#p015">15</a>.</div> -<div class="index2">Right to amputated limbs, <a href="#p143">143</a>.</div> -<div class="index2">Attending duels, <a href="#p144">144</a>.</div> - -<div class="index0">T.</div> - -<div class="index1"><span class="smcap">T<span>EETH—</span></span></div> -<div class="index2">Value of, <a href="#p166">166</a>.</div> -<div class="index2">Dentists pulling wrong tooth, <a href="#p163">163</a>.</div> -<div class="index2">Artificial, need not be perfect, <a href="#p163">163</a>, <a href="#p168">168</a>.</div> -<div class="index2">Contract for purchase of, <a href="#p169">169</a>.</div> -<div class="index2">Artificial are necessaries, <a href="#p171">171</a>.</div> - -<div class="index0">U.</div> - -<div class="index1"><span class="smcap">U<span>NDUE</span></span> - <span class="smcap">I<span>NFLUENCE—</span></span></div> -<div class="index2">When exercised over patient, <a href="#p138">138</a>, <a href="#p140">140</a>.</div> -<div class="index2">Setting aside will for, <a href="#p141">141</a>, <a href="#p142">142</a>.</div> -<div class="index2">Exercised by dentist, <a href="#p171">171</a>.</div> - -<div class="index1"><span class="smcap">U<span>NITED</span></span> - <span class="smcap">S<span>TATES—</span></span></div> -<div class="index2">As a rule any one may practise, <a href="#p047">47</a>.</div> -<div class="index2">The law sometimes interferes, <a href="#p047">47</a>.</div> -<div class="index2">Statutory requirements, <a href="#p048">48</a>, <a href="#p051">51</a>.</div> - -<div class="index1"><span class="smcap">U<span>NPROFESSIONAL</span></span> - <span class="smcap">M<span>EN—</span></span></div> -<div class="index2">Liable for gross negligence, <a href="#p065">65</a>.</div> -<div class="index2">Liability for gratuitous services, <a href="#p066">66</a>, <a href="#p067">67</a>.</div> -<div class="index2">When criminally liable, <a href="#p092">92</a>.</div> -<div class="index2">Admitting, at a confinement, <a href="#p144">144</a>.</div> - -<div class="index1"><span class="smcap">U<span>NREGISTERED</span></span> - <span class="smcap">P<span>HYSICIAN—</span></span></div> -<div class="index2">Practising for reward, <a href="#p045">45</a>, <a href="#p046">46</a>.</div> -<div class="index2">  —  — charity, <a href="#p046">46</a>.</div> - -<div class="index0">V.</div> - -<div class="index1"><span class="smcap">V<span>ACCINATION—</span></span></div> -<div class="index2">Negligence of physician, <a href="#p022">22</a>.</div> - -<div class="index1"><span class="smcap">V<span>ISITS—</span></span></div> -<div class="index2">Physician best judge of number, <a href="#p023">23</a>.</div> -<div class="index2">As a friend, <a href="#p024">24</a>.</div> - -<div class="index1"><span class="smcap">V<span>OLUNTEER—</span></span></div> -<div class="index2">Held more strictly than one called in, <a href="#p065">65</a>, <a href="#p066">66</a>.</div> - -<div class="index0">W.</div> - -<div class="index1"><span class="smcap">W<span>IFE—</span></span></div> -<div class="index2">May generally bind husband to pay doctor, <a href="#p035">35</a>, <a href="#p036">36</a>.</div> -<div class="index2">But husband may select physician, <a href="#p036">36</a>.</div> -<div class="index2">Cannot bind him for clairvoyant services, <a href="#p036">36</a>.</div> -<div class="index2">Selling deleterious drugs to, <a href="#p186">186</a>.</div> - -<div class="index1"><span class="smcap">W<span>ILL—</span></span></div> -<div class="index2">In favour of medical man, <a href="#p141">141</a>, <a href="#p142">142</a>.</div> - -<div class="index1"><span class="smcap">W<span>ITNESS—</span></span><i>See</i> - <span class="smcap">E<span>XPERTS.</span></span></div> -<div class="index2">Fees to medical men, <a href="#p026">26</a>, <a href="#p037">37</a>.</div> - -<div class="index1"><span class="smcap">W<span>OMEN</span></span> - <span class="smcap">P<span>HYSICIANS—</span></span></div> -<div class="index2">Among the Druids, <a href="#p002">2</a>.</div> -<div class="index2">In England in early times, <a href="#p002">2</a>, <a href="#p003">3</a>, <a href="#p010">10</a>, <a href="#p014">14</a>.</div> -<div class="index2">Penalty for practising, <a href="#p007">7</a>.</div> -<div class="index2">In Greece and foreign lands, <a href="#p013">13</a>.</div> -<div class="index2">In United States, <a href="#p014">14</a>.</div> -<div class="index2">In England under the Medical Act, <a href="#p014">14</a>.</div> -<div class="index2">In Ontario, <a href="#p014">14</a>.</div> -<div class="index2">As liable for negligence as men, <a href="#p061">61</a>.</div> - -</div><!--chapter--> - -<div class="chapter"> -<h2 class="nobreak" id="endnotes" -title="Endnotes.">ENDNOTES.</h2></div> - -<p class="footnote"> -<a id="fn-1" href="#fnanchor-1" class="fnlabel">1</a> -The Faërie Queene, b. III., cap. 5, sts. 31, 32, 33.</p> - -<p class="footnote"> -<a id="fn-2" href="#fnanchor-2" class="fnlabel">2</a> -32 Henry VIII., cap. 42.</p> - -<p class="footnote"> -<a id="fn-3" href="#fnanchor-3" class="fnlabel">3</a> -21 & 22 Vic. cap. 90.</p> - -<p class="footnote"> -<a id="fn-4" href="#fnanchor-4" class="fnlabel">4</a> -3 Henry VIII. cap. 11.</p> - -<p class="footnote"> -<a id="fn-5" href="#fnanchor-5" class="fnlabel">5</a> -<i>Rose</i> v. <i>Coll. of Phy.</i>, 3 Salk. 17: 6 Mod. 44.</p> - -<p class="footnote"> -<a id="fn-6" href="#fnanchor-6" class="fnlabel">6</a> -55 Geo. III. cap. 194. sec. 5.</p> - -<p class="footnote"> -<a id="fn-7" href="#fnanchor-7" class="fnlabel">7</a> -<i>Apoth. Co.</i> v. <i>Lotinga</i>, 2 Moo. & R. 499; -Glenn’s Laws Affecting Medical Men, p. 207.</p> - -<p class="footnote"> -<a id="fn-8" href="#fnanchor-8" class="fnlabel">8</a> -True Blue Laws of Connecticut, by J. H. Trumbull, 1876.</p> - -<p class="footnote"> -<a id="fn-9" href="#fnanchor-9" class="fnlabel">9</a> -Prof. H. C. Bolton, <i>Pop. Sci. Monthly</i>, vol. 18 p. 191.</p> - -<p class="footnote"> -<a id="fn-10" href="#fnanchor-10" class="fnlabel">10</a> -3 Ortolan, Expli. des Instituts, sec. 1199, quoted in Ordronaux’s -Jurisprudence of Medicine.</p> - -<p class="footnote"> -<a id="fn-11" href="#fnanchor-11" class="fnlabel">11</a> -<i>Poucher</i> v. <i>Norman</i>, 3 B. & C. 744; <i>Chorley</i> v. -<i>Bolcot</i>, 4 T. R. 317; <i>Veitch</i> v. <i>Russell</i>, 3 Q. B. 925.</p> - -<p class="footnote"> -<a id="fn-12" href="#fnanchor-12" class="fnlabel">12</a> -<i>Battersby</i> v. <i>Lawrence</i>, Car. & M. 277.</p> - -<p class="footnote"> -<a id="fn-13" href="#fnanchor-13" class="fnlabel">13</a> -Per <i>Bramwell, B.</i>; <i>Ellis</i> v. <i>Kelly</i>, 6 H. & N. 226; -<i>Allison</i> v. <i>Haydon</i>, 3 C. & P. 246; <i>Apothecaries Co.</i> v. <i>Lotinga</i>, -2 Moo. & R. 495: <i>Battersby</i> v. <i>Lawrence</i>, Car. & M. 277.</p> - -<p class="footnote"> -<a id="fn-14" href="#fnanchor-14" class="fnlabel">14</a> -<i>Gensham</i> v. <i>Germain</i>, 11 Moore 1; <i>Towne</i> v. <i>Gresley</i>, -3 C. & P. 581; <i>Handey</i> v. <i>Henson</i>, 4 C. & P. 110; <i>Morgan</i> v. -<i>Hallen</i>, 8 Ad. & E. 489.</p> - -<p class="footnote"> -<a id="fn-15" href="#fnanchor-15" class="fnlabel">15</a> -Stair I. 12; 5.</p> - -<p class="footnote"> -<a id="fn-16" href="#fnanchor-16" class="fnlabel">16</a> -<i>Adams</i> v. <i>Stevens</i>, 26 Wend. 451.</p> - -<p class="footnote"> -<a id="fn-17" href="#fnanchor-17" class="fnlabel">17</a> -21 & 22 Vict. cap. 90, sec. 27; <i>Simpson</i> v. <i>Dismore</i>, 9 -M. & W. 47; R. S. Ont. cap, 142, secs, 35–36.</p> - -<p class="footnote"> -<a id="fn-18" href="#fnanchor-18" class="fnlabel">18</a> -<i>Hewitt</i> v. <i>Wilcox</i>, 1 Met. 154.</p> - -<p class="footnote"> -<a id="fn-19" href="#fnanchor-19" class="fnlabel">19</a> -<i>Adams</i> v. <i>Stevens</i>, 26 Wend. 451; <i>Baxter</i> v. <i>Gray</i>, -4 Scott, N. R. 374; <i>Mock</i> v. <i>Kelly</i>, 3 Ala. 387; <i>Beekman</i> v. -<i>Planter</i>, 15 Barb. 550; <i>McPherson</i> v. <i>Chedell</i>, 24 Wend. 15; -<i>Simmons</i> v. <i>Means</i>, 8 Sm. & Marsh, 397; <i>Smith</i> v. <i>Watson</i>, 14 Vt. -322.</p> - -<p class="footnote"> -<a id="fn-20" href="#fnanchor-20" class="fnlabel">20</a> -Ordronaux, sec. 39; Willcocks on the Medical Profession, -p. 111.</p> - -<p class="footnote"> -<a id="fn-21" href="#fnanchor-21" class="fnlabel">21</a> -<i>Tuson</i> v. <i>Batting</i>, 3 Esp. N. P. 192; <i>Baxter</i> v. -<i>Gray</i>, 4 Scott, N. R. 374.</p> - -<p class="footnote"> -<a id="fn-22" href="#fnanchor-22" class="fnlabel">22</a> -Affaire Tallien Jour. du Palais, vol. 3; An. XI., XII. p. -210.</p> - -<p class="footnote"> -<a id="fn-23" href="#fnanchor-23" class="fnlabel">23</a> -<i>Collins</i> v. <i>Grady</i>, 13 Louis. An. 95; 2 Louis. 331.</p> - -<p class="footnote"> -<a id="fn-24" href="#fnanchor-24" class="fnlabel">24</a> -<i>People</i> v. <i>Monroe</i>, 4 Wend. 200; -<i>Blogg</i> v. <i>Parkers</i>, Ry. & M. N. P. C. 125.</p> - -<p class="footnote"> -<a id="fn-25" href="#fnanchor-25" class="fnlabel">25</a> -Story on Bailments, sec. 375.</p> - -<p class="footnote"> -<a id="fn-26" href="#fnanchor-26" class="fnlabel">26</a> -<i>Farnsworth</i> v. <i>Garrard</i>, 1 Camp. 38; -<i>Adler</i> v. <i>Buckley</i>, 1 Swan -(Tenn.) 69; <i>Gallagher</i> v. <i>Thompson</i>, Wright (Ohio), 466.</p> - -<p class="footnote"> -<a id="fn-27" href="#fnanchor-27" class="fnlabel">27</a> -<i>Basten</i> v. <i>Butter</i>, 7 East, 479.</p> - -<p class="footnote"> -<a id="fn-28" href="#fnanchor-28" class="fnlabel">28</a> -<i>Adler</i> v. <i>Buckley</i>, 1 Swan (Tenn.), 69.</p> - -<p class="footnote"> -<a id="fn-29" href="#fnanchor-29" class="fnlabel">29</a> -<i>Hill</i> v. <i>Featherstonhaugh</i>, 7 Bing. 574; <i>Seare</i> v. -<i>Prentise</i>, 8 East, 350.</p> - -<p class="footnote"> -<a id="fn-30" href="#fnanchor-30" class="fnlabel">30</a> -<i>Duffit</i> v. <i>James</i>, cited <i>Baston</i> v. <i>Butter</i>, 7 East, -480; <i>Kannen</i> v. <i>McMullen</i>, 1 Peake, 85; <i>Bellinger</i> v. <i>Craigue</i>, 31 -Barb. 534; <i>Long</i> v. <i>Morrison</i>, 14 Ind. 595.</p> - -<p class="footnote"> -<a id="fn-31" href="#fnanchor-31" class="fnlabel">31</a> -<i>Kannen</i> v. <i>McMullen</i>, 1 Peake, 83; <i>Hupe</i> v. <i>Phelps</i>, 2 -Starkie, 424.</p> - -<p class="footnote"> -<a id="fn-32" href="#fnanchor-32" class="fnlabel">32</a> -<i>Piper</i> v. <i>Menifee</i>, 12 B. Monr. 467.</p> - -<p class="footnote"> -<a id="fn-33" href="#fnanchor-33" class="fnlabel">33</a> -Ordronaux p. 92.</p> - -<p class="footnote"> -<a id="fn-34" href="#fnanchor-34" class="fnlabel">34</a> -<i>Landon</i> v. <i>Humphrey</i>, 9 Conn. 209.</p> - -<p class="footnote"> -<a id="fn-35" href="#fnanchor-35" class="fnlabel">35</a> -Peake’s N. P. C. 83, 84.</p> - -<p class="footnote"> -<a id="fn-36" href="#fnanchor-36" class="fnlabel">36</a> -<i>Hughes</i> v. <i>Hampton</i>, Const. Rep. (S. C.) 745.</p> - -<p class="footnote"> -<a id="fn-37" href="#fnanchor-37" class="fnlabel">37</a> -<i>Wheeler</i> v. <i>Sims</i>, 5 Jur. 151; <i>Newton</i> v. <i>Ker</i>, 14 -Louis. An. 704.</p> - -<p class="footnote"> -<a id="fn-38" href="#fnanchor-38" class="fnlabel">38</a> -<i>Tuson</i> v. <i>Batting</i>, 3 Esp. 191.</p> - -<p class="footnote"> -<a id="fn-39" href="#fnanchor-39" class="fnlabel">39</a> -<i>Miller</i> v. <i>Beal</i>, 26 Ind. 234.</p> - -<p class="footnote"> -<a id="fn-40" href="#fnanchor-40" class="fnlabel">40</a> -<i>Collins</i> v. <i>Graves</i>, 13 Louis. An. 95; <i>Villalobas</i> v. -<i>Mooney</i>, 2 Louis. 331.</p> - -<p class="footnote"> -<a id="fn-41" href="#fnanchor-41" class="fnlabel">41</a> -<i>Todd</i> v. <i>Myers</i>, 40 Cal. 357.</p> - -<p class="footnote"> -<a id="fn-42" href="#fnanchor-42" class="fnlabel">42</a> -<i>Succession of Duclos</i>, 11 Louis. An. 406; <i>Sheldon</i> v. -<i>Johnson</i>, 40 Ia. 84; <i>Guerard</i> v. <i>Jenkins</i>, 1 Strobh. 171; Ordronaux, -sec. 47.</p> - -<p class="footnote"> -<a id="fn-43" href="#fnanchor-43" class="fnlabel">43</a> -<i>Roberts</i> v. <i>Kerfoot</i>, cited Glenn’s Laws, p. 201; -<i>Stackman</i> v. <i>Vivian</i>, 34 Beav. 290.</p> - -<p class="footnote"> -<a id="fn-44" href="#fnanchor-44" class="fnlabel">44</a> -Ordronaux, sec. 43.</p> - -<p class="footnote"> -<a id="fn-45" href="#fnanchor-45" class="fnlabel">45</a> -<i>Bassett</i> v. <i>Spofford</i>, 11 N. H. 167.</p> - -<p class="footnote"> -<a id="fn-46" href="#fnanchor-46" class="fnlabel">46</a> -<i>Smith</i> v. <i>Hyde</i>, 19 Verm. 54; -<i>Mock</i> v. <i>Kelly</i>, 3 Alab. 387; Jones on -Bailm. 99; Ordronaux, secs. 21 and 15.</p> - -<p class="footnote"> -<a id="fn-47" href="#fnanchor-47" class="fnlabel">47</a> -<i>McClallen</i> v. <i>Adams</i>, 19 Pick, 333; Ordronaux, sec. 48.</p> - -<p class="footnote"> -<a id="fn-48" href="#fnanchor-48" class="fnlabel">48</a> -<i>Parkinson</i> v. <i>Atkinson</i>, 31 L. J., C. P. 199; <i>Turner</i> -v. <i>Turner</i>, 5 Jur., N. S., 839.</p> - -<p class="footnote"> -<a id="fn-49" href="#fnanchor-49" class="fnlabel">49</a> -<i>Clark</i> v. <i>Gill</i>, 1 Kay & J. 19; <i>Webb</i> v. <i>Paige</i>, 1 -Car. & Kir. 23.</p> - -<p class="footnote"> -<a id="fn-50" href="#fnanchor-50" class="fnlabel">50</a> -<i>Hammond</i> v. <i>Stewart</i>, 1 Stra. 510.</p> - -<p class="footnote"> -<a id="fn-51" href="#fnanchor-51" class="fnlabel">51</a> -<i>In re Askin & Charteris</i>, 13 U. C. R. 498.</p> - -<p class="footnote"> -<a id="fn-52" href="#fnanchor-52" class="fnlabel">52</a> -<i>In re Harbottle & Wilson</i>, 30 U. C. R. 314.</p> - -<p class="footnote"> -<a id="fn-53" href="#fnanchor-53" class="fnlabel">53</a> -R. S. O. cap. 79, sec. 10.</p> - -<p class="footnote"> -<a id="fn-54" href="#fnanchor-54" class="fnlabel">54</a> -Iowa Code, 1873, sec. 1814; North Carolina Laws, 1871, -cap. 139, sec. 13; Rhode Is. Pub. Stat. 1882, p. 733; Indiana Rev. -Stat. 1881, p. 94, sec. 504.</p> - -<p class="footnote"> -<a id="fn-55" href="#fnanchor-55" class="fnlabel">55</a> -<i>Belts</i> v. <i>Clifford</i>, Warwick Assizes, Lent, 1858.</p> - -<p class="footnote"> -<a id="fn-56" href="#fnanchor-56" class="fnlabel">56</a> -<i>Webb</i> v. <i>Paige</i>, 1 Car. & Ker. 23.</p> - -<p class="footnote"> -<a id="fn-57" href="#fnanchor-57" class="fnlabel">57</a> -<i>Buchman</i> v. <i>State</i>, 59 Ind. 1.</p> - -<p class="footnote"> -<a id="fn-58" href="#fnanchor-58" class="fnlabel">58</a> -In <i>Re Roelker</i>. 1 Sprague, 276.</p> - -<p class="footnote"> -<a id="fn-59" href="#fnanchor-59" class="fnlabel">59</a> -<i>People</i> v. <i>Montgomery</i>, 13 Abb. Pr. (N. S.), 207.</p> - -<p class="footnote"> -<a id="fn-60" href="#fnanchor-60" class="fnlabel">60</a> -Juris. of Med. secs. 114–116; 1 Tay. Med. Jur. p. 19; 2 -Phil. Ev. 4th Am. Ed., p. 828; 1 Redf. on Wills, pp. 154–155.</p> - -<p class="footnote"> -<a id="fn-61" href="#fnanchor-61" class="fnlabel">61</a> -Exparte <i>Dement</i>, 53 Ala. 389.</p> - -<p class="footnote"> -<a id="fn-62" href="#fnanchor-62" class="fnlabel">62</a> -<i>Summer</i> v. <i>State</i>, 5 Tex. Ct. of App. 574.</p> - -<p class="footnote"> -<a id="fn-63" href="#fnanchor-63" class="fnlabel">63</a> -Smith on Contracts, 85.</p> - -<p class="footnote"> -<a id="fn-64" href="#fnanchor-64" class="fnlabel">64</a> -<i>Bradley</i> v. <i>Dodge</i>, 45 How., N. Y., Pr. 57; <i>Craine</i> v. -<i>Bandoine</i>, 65 Barb., N. Y., 261; <i>Harrison</i> v. <i>Grady</i>, 13 L. T., N. -S., 369; <i>Spaun</i> v. <i>Mercer</i>, 8 Neb., 537.</p> - -<p class="footnote"> -<a id="fn-65" href="#fnanchor-65" class="fnlabel">65</a> -<i>Watling</i> v. <i>Walters</i>, 1 C. & P. 132.</p> - -<p class="footnote"> -<a id="fn-66" href="#fnanchor-66" class="fnlabel">66</a> -<i>Boyd</i> v. <i>Sappington</i>, 6 Watts, 247.</p> - -<p class="footnote"> -<a id="fn-67" href="#fnanchor-67" class="fnlabel">67</a> -<i>Smith</i> v. <i>Watson</i>, 14 Vt. 332.</p> - -<p class="footnote"> -<a id="fn-68" href="#fnanchor-68" class="fnlabel">68</a> -<i>Harrison</i> v. <i>Grady</i>, 13 L. T., N. S. 369; <i>Cooper</i> v. -<i>Lloyd</i>, 6 C. B., N. S. 519; Roper on Husband and Wife, 2nd ed. v. ii. -p. 114.</p> - -<p class="footnote"> -<a id="fn-69" href="#fnanchor-69" class="fnlabel">69</a> -<i>Harrison</i> v. <i>Grady</i>, supra; <i>Thorpe</i> v. <i>Shapleigh</i>, 67 -Me. 235.</p> - -<p class="footnote"> -<a id="fn-70" href="#fnanchor-70" class="fnlabel">70</a> -<i>Webber</i> v. <i>Spaunpake</i>, 2 Redf., N. Y., 258.</p> - -<p class="footnote"> -<a id="fn-71" href="#fnanchor-71" class="fnlabel">71</a> -<i>Berier</i> v. <i>Galloway</i>, 71 Ill. 517; <i>Hartmann</i> v. -<i>Tegart</i>, 12 Kan. 177.</p> - -<p class="footnote"> -<a id="fn-72" href="#fnanchor-72" class="fnlabel">72</a> -<i>Potter</i> v. <i>Virgil</i>, 67 Barb. N. Y., 578.</p> - -<p class="footnote"> -<a id="fn-73" href="#fnanchor-73" class="fnlabel">73</a> -<i>Wood</i> v. <i>O’Kelley</i>, 8 Cush. 406.</p> - -<p class="footnote"> -<a id="fn-74" href="#fnanchor-74" class="fnlabel">74</a> -Parsons on Contracts, vol. i. p. 302–303; -<i>Blackburn</i> v. <i>Mackey</i>, 1 C. - & P. 1.</p> - -<p class="footnote"> -<a id="fn-75" href="#fnanchor-75" class="fnlabel">75</a> -<i>Crantz</i> v. <i>Gill</i>, 2 Esp. 471.</p> - -<p class="footnote"> -<a id="fn-76" href="#fnanchor-76" class="fnlabel">76</a> -<i>Rogers</i> v. <i>Turner</i>, 59 Mo. 116; -<i>Deane</i> v. <i>Annis</i>, 14 Me. 26; <i>Swain</i> v. -<i>Tyler</i>, 26 Vt. 1.</p> - -<p class="footnote"> -<a id="fn-77" href="#fnanchor-77" class="fnlabel">77</a> -<i>Cooper</i> v. <i>Phillips</i>, 4 C. & P. 581.</p> - -<p class="footnote"> -<a id="fn-78" href="#fnanchor-78" class="fnlabel">78</a> -31 & 32 Vict. cap. 122, sec. 37.</p> - -<p class="footnote"> -<a id="fn-79" href="#fnanchor-79" class="fnlabel">79</a> -<i>Reg.</i> v. <i>Downes</i>, 1 Q. B. D. 25.</p> - -<p class="footnote"> -<a id="fn-80" href="#fnanchor-80" class="fnlabel">80</a> -<i>Reg.</i> v. <i>Hines</i>, 80 Cen. C. C. Sess. Pap. 309; -<i>Reg.</i> v. <i>Wagstaffe</i>, 10 Cox. C. C. 530.</p> - -<p class="footnote"> -<a id="fn-81" href="#fnanchor-81" class="fnlabel">81</a> -<i>Reg.</i> v. <i>Morby</i>, 8 Q. B. D. 571.</p> - -<p class="footnote"> -<a id="fn-82" href="#fnanchor-82" class="fnlabel">82</a> -<i>Blackburn</i> v. <i>Mackey</i>, 1 C. & P. 1; -<i>Hoyt</i> v. <i>Casey</i>, 14 Mass. 397.</p> - -<p class="footnote"> -<a id="fn-83" href="#fnanchor-83" class="fnlabel">83</a> -<i>Wennall</i> v. <i>Adney</i>, 3 B. & P. 24; -<i>Sellen</i> v. <i>Norman</i>, 4 C. & P. 80.</p> - -<p class="footnote"> -<a id="fn-84" href="#fnanchor-84" class="fnlabel">84</a> -<i>Cooper</i> v. <i>Phillips</i>, 4 C. & P. 581.</p> - -<p class="footnote"> -<a id="fn-85" href="#fnanchor-85" class="fnlabel">85</a> -<i>R.</i> v. <i>Smith</i>, 8 C. & P. 153.</p> - -<p class="footnote"> -<a id="fn-86" href="#fnanchor-86" class="fnlabel">86</a> -Glenn’s Law of Medical Men, pp. 197–199.</p> - -<p class="footnote"> -<a id="fn-87" href="#fnanchor-87" class="fnlabel">87</a> -<i>Cox</i> v. <i>Midland Counties Railway</i>, 3 Ex. 268; <i>Cooper</i> -v. <i>N. Y. C.</i> 13 N. Y. Sup. Ct. 276.</p> - -<p class="footnote"> -<a id="fn-88" href="#fnanchor-88" class="fnlabel">88</a> -<i>Walker</i> v. <i>Great Western Railway</i>, 2 L. R. Ex. 228; -<i>Cairo, etc., Railroad Company</i> v. <i>Mahoney</i>, 82 Ill. 73; <i>Stephenson</i> -v. <i>N. Y. & H. R. R. Co.</i>, 2 Duer. 341.</p> - -<p class="footnote"> -<a id="fn-89" href="#fnanchor-89" class="fnlabel">89</a> -Per Parke, B., and Rolfe, B., in <i>Cox</i> v. <i>Mid. Co. -Railway</i>, supra.</p> - -<p class="footnote"> -<a id="fn-90" href="#fnanchor-90" class="fnlabel">90</a> -<i>Corsi</i> v. <i>Maretzck</i>, 4 E. D. Smith 1 (1855).</p> - -<p class="footnote"> -<a id="fn-91" href="#fnanchor-91" class="fnlabel">91</a> -21 & 22 Vict. cap. 90, secs. 31, 32; -<i>Wagstaffe</i> v. <i>Sharpe</i>, 3 M. & W. -521; <i>Shearwood</i> v. <i>Hay</i>, 5 Ad. & E. 383; -<i>Turner</i> v. <i>Reynall</i>, 14 C. B. N. S. 328.</p> - -<p class="footnote"> -<a id="fn-92" href="#fnanchor-92" class="fnlabel">92</a> -21 & 22 Vict. cap. 90, sec. 15.</p> - -<p class="footnote"> -<a id="fn-93" href="#fnanchor-93" class="fnlabel">93</a> -Enc. Brit. Vol. xv. p. 799.</p> - -<p class="footnote"> -<a id="fn-94" href="#fnanchor-94" class="fnlabel">94</a> -R. S. O. cap. 142.</p> - -<p class="footnote"> -<a id="fn-95" href="#fnanchor-95" class="fnlabel">95</a> -<i>Reg.</i> v. <i>Coll. Phy. & Sur.</i>, -44 Ont. Q. B. 564.</p> - -<p class="footnote"> -<a id="fn-96" href="#fnanchor-96" class="fnlabel">96</a> -<i>Reg.</i> v. <i>Hessel</i>, 44 Ont. Q. B. 53 -<i>Reg.</i> v. <i>Campbell</i>, Q. B. D. (Ont.) June, 1883.</p> - -<p class="footnote"> -<a id="fn-97" href="#fnanchor-97" class="fnlabel">97</a> -<i>Reg.</i> v. <i>Tefft</i>, 45 Ont. Q. B. 144.</p> - -<p class="footnote"> -<a id="fn-98" href="#fnanchor-98" class="fnlabel">98</a> -<i>Wilmot</i> v. <i>Shaw</i>, 2 C. L. Times, 96.</p> - -<p class="footnote"> -<a id="fn-99" href="#fnanchor-99" class="fnlabel">99</a> -<i>Reg.</i> v. <i>Coll. P. & S.</i> -16 C. L. J. 30; R. S. O. cap. 142, sec. 23.</p> - -<p class="footnote"> -<a id="fn-100" href="#fnanchor-100" class="fnlabel">100</a> -<i>Re Heinemann’s Appeal</i>, 96 Pa. St. 112.</p> - -<p class="footnote"> -<a id="fn-101" href="#fnanchor-101" class="fnlabel">101</a> -Ordronaux’s Inst. of Med., secs. 5 and 6; -<i>Sutton</i> v. <i>Tracy</i>, 1 Mich. 243.</p> - -<p class="footnote"> -<a id="fn-102" href="#fnanchor-102" class="fnlabel">102</a> -N. Y. Laws, cap. 436.</p> - -<p class="footnote"> -<a id="fn-103" href="#fnanchor-103" class="fnlabel">103</a> -<i>Corsi</i> v. <i>Maretzek</i>, 4 E. D. Smith, 1.</p> - -<p class="footnote"> -<a id="fn-104" href="#fnanchor-104" class="fnlabel">104</a> -<i>Bradbury</i> v. <i>Bardin</i>, 35 Conn. 577.</p> - -<p class="footnote"> -<a id="fn-105" href="#fnanchor-105" class="fnlabel">105</a> -<i>Bowman</i> v. <i>Woods</i>, 1 Iowa, 441.</p> - -<p class="footnote"> -<a id="fn-106" href="#fnanchor-106" class="fnlabel">106</a> -<i>Smith</i> v. <i>Lane</i>, 24 Hun, 632.</p> - -<p class="footnote"> -<a id="fn-107" href="#fnanchor-107" class="fnlabel">107</a> -<i>Bibber</i> v. <i>Simpson</i>, 59 Me. 181; <i>Thistleton</i> v. <i>Frewer</i>, 31 L. J. -Ex. 230.</p> - -<p class="footnote"> -<a id="fn-108" href="#fnanchor-108" class="fnlabel">108</a> -<i>Patten</i> v. <i>Wiggin</i>, 51 Me. 594.</p> - -<p class="footnote"> -<a id="fn-109" href="#fnanchor-109" class="fnlabel">109</a> -<i>Bowman</i> v. <i>Woods</i>, 1 Iowa, 441.</p> - -<p class="footnote"> -<a id="fn-110" href="#fnanchor-110" class="fnlabel">110</a> -<i>Horton</i> v. <i>Green</i>, 64 N. C. 64.</p> - -<p class="footnote"> -<a id="fn-111" href="#fnanchor-111" class="fnlabel">111</a> -Ordronaux, sec. 8.</p> - -<p class="footnote"> -<a id="fn-112" href="#fnanchor-112" class="fnlabel">112</a> -<i>Sutton</i> v. <i>Tracy</i>, 1 Mich. 243; -<i>Reynolds</i> v. <i>Graves</i>, 3 Wisc. 416.</p> - -<p class="footnote"> -<a id="fn-113" href="#fnanchor-113" class="fnlabel">113</a> -<i>Langdon</i> v. <i>Mut. Life Ins. Co.</i>, 5 Hun. N. Y. 1.</p> - -<p class="footnote"> -<a id="fn-114" href="#fnanchor-114" class="fnlabel">114</a> -Per Cur., in <i>Dr. Greonvelt’s</i> case, 1 Lord Ray, 213.</p> - -<p class="footnote"> -<a id="fn-115" href="#fnanchor-115" class="fnlabel">115</a> -Glenn, p. 251; Addison on Torts, Ed. 3rd, p. 17.</p> - -<p class="footnote"> -<a id="fn-116" href="#fnanchor-116" class="fnlabel">116</a> -Glenn, p. 252; Erle, C.J., <i>R.</i> v. <i>Noakes</i>, -4 F. & F. 920.</p> - -<p class="footnote"> -<a id="fn-117" href="#fnanchor-117" class="fnlabel">117</a> -<i>Gardiner</i> v. <i>Heartt</i>, 3 Denio, 232–236; -McClelland’s Civil Malpractice, cap. 17.</p> - -<p class="footnote"> -<a id="fn-118" href="#fnanchor-118" class="fnlabel">118</a> -Wharton on Negligence, sec. 3.</p> - -<p class="footnote"> -<a id="fn-119" href="#fnanchor-119" class="fnlabel">119</a> -<i>Carpenter</i> v. <i>Blake</i>, 60 Barb. 488.</p> - -<p class="footnote"> -<a id="fn-120" href="#fnanchor-120" class="fnlabel">120</a> -McClelland, cap. 17.</p> - -<p class="footnote"> -<a id="fn-121" href="#fnanchor-121" class="fnlabel">121</a> -Wharton, sec. 731.</p> - -<p class="footnote"> -<a id="fn-122" href="#fnanchor-122" class="fnlabel">122</a> -<i>Wilmot</i> v. <i>Howard</i>, 32 Vt. 447; -<i>Long</i> v. <i>Morrison</i>, 14 Ind. 595; -<i>Patten</i> v. <i>Wiggin</i>, 51 Me. 594.</p> - -<p class="footnote"> -<a id="fn-123" href="#fnanchor-123" class="fnlabel">123</a> -<i>Hancke</i> v. <i>Hooper</i>, 7 C. & P. 81.</p> - -<p class="footnote"> -<a id="fn-124" href="#fnanchor-124" class="fnlabel">124</a> -<i>Patten</i> v. <i>Wiggin</i>, 51 Me. 594.</p> - -<p class="footnote"> -<a id="fn-125" href="#fnanchor-125" class="fnlabel">125</a> -<i>Leighton</i> v. <i>Sargent</i>, 7 Fost. 460; -<i>Simonds</i> v. <i>Henry</i>, 39 Me. 155; -<i>Hancke</i> v. <i>Hooper</i>, 7 C. & P. 81; -<i>McCandless</i> v. <i>McWha</i>, 22 Pa. St. 261; -<i>Carpenter</i> v. <i>Blake</i>, 60 Barb. 488; -<i>Utley</i> v. <i>Burns</i>, 70 Ill. 162; <i>Barnes</i> v. -<i>Means</i>, 82 Ill. 379.</p> - -<p class="footnote"> -<a id="fn-126" href="#fnanchor-126" class="fnlabel">126</a> -<i>Heath</i> v. <i>Gibson</i>, 3 Oregon, 64.</p> - -<p class="footnote"> -<a id="fn-127" href="#fnanchor-127" class="fnlabel">127</a> -<i>Slater</i> v. <i>Baker</i>, 2 Wils. 359; -<i>McCandless</i> v. <i>McWha</i>, sup.; Wh. and -Still. Medic. Juris. sec. 1087.</p> - -<p class="footnote"> -<a id="fn-128" href="#fnanchor-128" class="fnlabel">128</a> -Bouvier’s Institutes, secs. 1004–1005.</p> - -<p class="footnote"> -<a id="fn-129" href="#fnanchor-129" class="fnlabel">129</a> -Ordronaux’s Jurisp. of Medicine, sec. 23.</p> - -<p class="footnote"> -<a id="fn-130" href="#fnanchor-130" class="fnlabel">130</a> -<i>Rich</i> v. <i>Pierpoint</i>, 3 F. & F. 35.</p> - -<p class="footnote"> -<a id="fn-131" href="#fnanchor-131" class="fnlabel">131</a> -Wharton on Negligence, sec. 734.</p> - -<p class="footnote"> -<a id="fn-132" href="#fnanchor-132" class="fnlabel">132</a> -Ordronaux, sec. 22.</p> - -<p class="footnote"> -<a id="fn-133" href="#fnanchor-133" class="fnlabel">133</a> -Wharton on Negligence, sec. 640.</p> - -<p class="footnote"> -<a id="fn-134" href="#fnanchor-134" class="fnlabel">134</a> -<i>Small</i> v. <i>Howard</i>, 128 Mass. 131; -<i>Hathorn</i> v. <i>Richmond</i>, 48 Vt. 557.</p> - -<p class="footnote"> -<a id="fn-135" href="#fnanchor-135" class="fnlabel">135</a> -Woodward, J., in <i>McCandless</i> v. <i>McWha</i>, -22 Pa. Rep. 261.</p> - -<p class="footnote"> -<a id="fn-136" href="#fnanchor-136" class="fnlabel">136</a> -<i>Mich. Cent. Rw.</i> v. <i>Hasseneyer</i>, -48 Mich. 205; <i>Fox</i> v. <i>Glastonbury</i>, 29 Conn. 204.</p> - -<p class="footnote"> -<a id="fn-137" href="#fnanchor-137" class="fnlabel">137</a> -Shearman & Red., sec. 432.</p> - -<p class="footnote"> -<a id="fn-138" href="#fnanchor-138" class="fnlabel">138</a> -<i>Patten</i> v. <i>Wiggen</i>, 51 Me. 594.</p> - -<p class="footnote"> -<a id="fn-139" href="#fnanchor-139" class="fnlabel">139</a> -<i>Rich</i> v. <i>Pierpoint</i>, per Erle, C.J., -3 F. & F. 35.</p> - -<p class="footnote"> -<a id="fn-140" href="#fnanchor-140" class="fnlabel">140</a> -<i>Carpenter</i> v. <i>Blake</i>, 60 Barb. 488.</p> - -<p class="footnote"> -<a id="fn-141" href="#fnanchor-141" class="fnlabel">141</a> -Ordronaux’s Jur. of Med., sec. 68.</p> - -<p class="footnote"> -<a id="fn-142" href="#fnanchor-142" class="fnlabel">142</a> -<i>Potter</i> v. <i>Warner</i>, 91 Pa. St. 362; -36 Am. Rep. 668.</p> - -<p class="footnote"> -<a id="fn-143" href="#fnanchor-143" class="fnlabel">143</a> -<i>Bowman</i> v. <i>Woods</i>, 1 Greene (Iowa), 441; -<i>Corsi</i> v. <i>Maretzek</i>, 4 E. D. Smith, 1.</p> - -<p class="footnote"> -<a id="fn-144" href="#fnanchor-144" class="fnlabel">144</a> -<i>Sutton</i> v. <i>Tracy</i>, 1 Mich. 243.</p> - -<p class="footnote"> -<a id="fn-145" href="#fnanchor-145" class="fnlabel">145</a> -<i>Mertz</i> v. <i>Detweiler</i>, 8 W. & Serg. 376; -<i>Seare</i> v. <i>Prentice</i>, 8 East, 348; -<i>Carpenter</i> v. <i>Blake</i>, 60 Barb. 518.</p> - -<p class="footnote"> -<a id="fn-146" href="#fnanchor-146" class="fnlabel">146</a> -<i>Hunter</i> v. <i>Blount</i>, 27 Ga. 76; -<i>Leighton</i> v. <i>Sargent</i>, 7 Foster, N. H. 476.</p> - -<p class="footnote"> -<a id="fn-147" href="#fnanchor-147" class="fnlabel">147</a> -Wharton on Negligence, sec. 29.</p> - -<p class="footnote"> -<a id="fn-148" href="#fnanchor-148" class="fnlabel">148</a> -<i>Hood</i> v. <i>Grimes</i>, 13 B. Monr. 188.</p> - -<p class="footnote"> -<a id="fn-149" href="#fnanchor-149" class="fnlabel">149</a> -<i>Ruddock</i> v. <i>Lowe</i>, 4 F. & F. 519; <i>R.</i> v. <i>Simpson</i>, 4 -C. & P. 407, note.</p> - -<p class="footnote"> -<a id="fn-150" href="#fnanchor-150" class="fnlabel">150</a> -Shearman & Redfield on Negligence, sec. 432; <i>Ritchey</i> v. -<i>West</i>, 3 Ill. 385; <i>Shiells</i> v. <i>Blackburne</i>, 1 H. Bl. 159; <i>Wilson</i> -v. <i>Brett</i>, 11 M .2 & -W. 113; <i>Pippin</i> v. <i>Shepherd</i>, 11 Price, 400.</p> - -<p class="footnote"> -<a id="fn-151" href="#fnanchor-151" class="fnlabel">151</a> -Wharton on Negligence, sec. 731 n.</p> - -<p class="footnote"> -<a id="fn-152" href="#fnanchor-152" class="fnlabel">152</a> -Jur. of Med. sec. 27.</p> - -<p class="footnote"> -<a id="fn-153" href="#fnanchor-153" class="fnlabel">153</a> -<i>R.</i> v. <i>Macleod</i>, 12 Cox. C. C. 534.</p> - -<p class="footnote"> -<a id="fn-154" href="#fnanchor-154" class="fnlabel">154</a> -<i>Perionowsky</i> v. <i>Freeman</i>, 4 F. & F. 977.</p> - -<p class="footnote"> -<a id="fn-155" href="#fnanchor-155" class="fnlabel">155</a> -<i>Shiells</i> v. <i>Blackburne</i>, 1 H. Bl. 159.</p> - -<p class="footnote"> -<a id="fn-156" href="#fnanchor-156" class="fnlabel">156</a> -<i>Boynton</i> v. <i>Somersworth</i>, 58 N. H. 321.</p> - -<p class="footnote"> -<a id="fn-157" href="#fnanchor-157" class="fnlabel">157</a> -McClelland, Civil Malpractice; Wharton on Negligence, sec. -737; <i>Leighton</i> v. <i>Sargent</i>, 7 Fost. 460; -<i>McCandless</i> v. <i>McWha</i>, 22 Pa. St. 261.</p> - -<p class="footnote"> -<a id="fn-158" href="#fnanchor-158" class="fnlabel">158</a> -<i>Geiselman</i> v. <i>Scott</i>, 25 Oh. St. 86.</p> - -<p class="footnote"> -<a id="fn-159" href="#fnanchor-159" class="fnlabel">159</a> -<i>Parker</i> v. <i>Adams</i>, 12 Metc. 417.</p> - -<p class="footnote"> -<a id="fn-160" href="#fnanchor-160" class="fnlabel">160</a> -<i>Hibbard</i> v. <i>Thompson</i>, 109 Mass. 286.</p> - -<p class="footnote"> -<a id="fn-161" href="#fnanchor-161" class="fnlabel">161</a> -<i>Cleveland, etc., Rw.</i> v. <i>Terry</i>, 8 Oh. St. 570.</p> - -<p class="footnote"> -<a id="fn-162" href="#fnanchor-162" class="fnlabel">162</a> -<i>Ch. & R. I. Rw.</i> v. <i>McKean</i>, 40 Ill. 218; <i>Eakin</i> v. <i>Brown</i>, 1 E. D. -Smith, 36.</p> - -<p class="footnote"> -<a id="fn-163" href="#fnanchor-163" class="fnlabel">163</a> -<i>Clark</i> v. <i>Kerwin</i>, 4 E. D. Smith, 21; <i>Parker</i> v. -<i>Adams</i>, 12 Mete 417.</p> - -<p class="footnote"> -<a id="fn-164" href="#fnanchor-164" class="fnlabel">164</a> -<i>Kerwhaker</i> v. <i>Cleveland, etc., Rw.</i> 3 Oh. 172; <i>Ind. and -Cin. Rw.</i> v. <i>Caldwell</i>, 9 Ind. 397.</p> - -<p class="footnote"> -<a id="fn-165" href="#fnanchor-165" class="fnlabel">165</a> -<i>Ch. etc., Rw.</i> v. <i>Goss</i>, 17 Wisc. 428.</p> - -<p class="footnote"> -<a id="fn-166" href="#fnanchor-166" class="fnlabel">166</a> -Chapman, C.J., <i>Hibbard</i> v. <i>Thompson</i>, 109 Mass. 288.</p> - -<p class="footnote"> -<a id="fn-167" href="#fnanchor-167" class="fnlabel">167</a> -<i>Gramm</i> v. <i>Boener</i>, 56 Ind. 497.</p> - -<p class="footnote"> -<a id="fn-168" href="#fnanchor-168" class="fnlabel">168</a> -<i>Fisk</i> v. <i>Wait</i>, 104 Mass. 71.</p> - -<p class="footnote"> -<a id="fn-169" href="#fnanchor-169" class="fnlabel">169</a> -<i>People</i> v. <i>N. Y. Hospital</i>, 3 Abb. N. C. 229.</p> - -<p class="footnote"> -<a id="fn-170" href="#fnanchor-170" class="fnlabel">170</a> -<i>Chamberland</i> v. <i>Morgan</i>, 68 Penn. St. 168.</p> - -<p class="footnote"> -<a id="fn-171" href="#fnanchor-171" class="fnlabel">171</a> -<i>Wilmot</i> v. <i>Howard</i>, 39 Vt. 447.</p> - -<p class="footnote"> -<a id="fn-172" href="#fnanchor-172" class="fnlabel">172</a> -<i>Perionowsky</i> v. <i>Freeman</i>, 4 F. & F. 977.</p> - -<p class="footnote"> -<a id="fn-173" href="#fnanchor-173" class="fnlabel">173</a> -<i>Potter</i> v. <i>Warner</i>, 91 Penn. St. 362.</p> - -<p class="footnote"> -<a id="fn-174" href="#fnanchor-174" class="fnlabel">174</a> -<i>Slater</i> v. <i>Baker</i>, 2 Wils. 359.</p> - -<p class="footnote"> -<a id="fn-175" href="#fnanchor-175" class="fnlabel">175</a> -<i>Carpenter</i> v. <i>Blake</i>, 60 Barb. 488.</p> - -<p class="footnote"> -<a id="fn-176" href="#fnanchor-176" class="fnlabel">176</a> -<i>Hunter</i> v. <i>Ogden</i>, 31 U. C. R. 132.</p> - -<p class="footnote"> -<a id="fn-177" href="#fnanchor-177" class="fnlabel">177</a> -<i>Carpenter</i> v. <i>Blake</i>, Sup.</p> - -<p class="footnote"> -<a id="fn-178" href="#fnanchor-178" class="fnlabel">178</a> -<i>Ballon</i> v. <i>Prescott</i>, 64 Me. 305.</p> - -<p class="footnote"> -<a id="fn-179" href="#fnanchor-179" class="fnlabel">179</a> -Ordronaux, sec. 14; Shearman & Red., sec. 441.</p> - -<p class="footnote"> -<a id="fn-180" href="#fnanchor-180" class="fnlabel">180</a> -<i>Longmeid</i> v. <i>Holliday</i>, 6 Ex. 767.</p> - -<p class="footnote"> -<a id="fn-181" href="#fnanchor-181" class="fnlabel">181</a> -<i>Pippin</i> v. <i>Sheppard</i>, 11 Price, 400.</p> - -<p class="footnote"> -<a id="fn-182" href="#fnanchor-182" class="fnlabel">182</a> -<i>Gladwell</i> v. <i>Steggall</i>, 5 Bing. N. C. 733.</p> - -<p class="footnote"> -<a id="fn-183" href="#fnanchor-183" class="fnlabel">183</a> -Wharton on Negligence, sec. 735.</p> - -<p class="footnote"> -<a id="fn-184" href="#fnanchor-184" class="fnlabel">184</a> -<i>Craig</i> v. <i>Chambers</i>, 17 Ohio St. 253.</p> - -<p class="footnote"> -<a id="fn-185" href="#fnanchor-185" class="fnlabel">185</a> -<i>Fields</i> v. <i>Rutherford</i>, 29 (Ont.) -C. P. 113; <i>Metropolitan R. W. Co.</i> v. -<i>Jackson</i>, L. R. 3 App. 193, 197.</p> - -<p class="footnote"> -<a id="fn-186" href="#fnanchor-186" class="fnlabel">186</a> -<i>Fawcett</i> v. <i>Mothersell</i>, 14 C. P. (Ont.) -104; <i>Jackson</i> v. <i>Hyde</i>, 28 -U. C. R. 295.</p> - -<p class="footnote"> -<a id="fn-187" href="#fnanchor-187" class="fnlabel">187</a> -Ordronaux, sec. 54.</p> - -<p class="footnote"> -<a id="fn-188" href="#fnanchor-188" class="fnlabel">188</a> -Ordronaux, sec. 86.</p> - -<p class="footnote"> -<a id="fn-189" href="#fnanchor-189" class="fnlabel">189</a> -<i>Jones</i> v. <i>Northmore</i>, 46 Vt. 587.</p> - -<p class="footnote"> -<a id="fn-190" href="#fnanchor-190" class="fnlabel">190</a> -<i>Whalen</i> v. <i>St. Louis, etc., Ry.</i>, -60 Mo. 323; <i>Indianapolis, etc., Ry.</i> v. -<i>Gaston</i>, 58 Ind. 224; <i>Leighton</i> v. <i>Sargent</i>, -11 Foster, N. H. 120.</p> - -<p class="footnote"> -<a id="fn-191" href="#fnanchor-191" class="fnlabel">191</a> -<i>Johnson</i> v. <i>Wills</i>, 6 Nev. 224.</p> - -<p class="footnote"> -<a id="fn-192" href="#fnanchor-192" class="fnlabel">192</a> -<i>Curtis</i> v. <i>Rochester & S. Ry.</i> 20 Barb. 282.</p> - -<p class="footnote"> -<a id="fn-193" href="#fnanchor-193" class="fnlabel">193</a> -L. R., 4 Q. B. D. 407.</p> - -<p class="footnote"> -<a id="fn-194" href="#fnanchor-194" class="fnlabel">194</a> -L. R., 5 C. P. D. 280.</p> - -<p class="footnote"> -<a id="fn-195" href="#fnanchor-195" class="fnlabel">195</a> -<i>Holmes</i> v. <i>Halde</i>, 74 Me. 28.</p> - -<p class="footnote"> -<a id="fn-196" href="#fnanchor-196" class="fnlabel">196</a> -<i>Jenkins</i> v. <i>French</i>, 58 N. H. 532; -Broom’s Maxims, 702. But see -<i>Hegerich</i> v. <i>Keddie</i>, 32 Hun, -141; <i>Yertore</i> v. <i>Wiswall</i>, 16 How. Pr. 8.</p> - -<p class="footnote"> -<a id="fn-197" href="#fnanchor-197" class="fnlabel">197</a> -Lord Campbell’s Act, 9 & 10 Vict. cap. 93; R. S. -O. cap. 128; <i>Lett</i> -v. <i>St. Lawrence & Ottawa Rw.</i>, 1 Ont. Rep. 545; <i>Blake</i> -v. <i>Midland Rw.</i>, -18 Q. B. 93; <i>Bradburn</i> v. <i>G. W. R.</i>, L. R., 10 Ex. 3.</p> - -<p class="footnote"> -<a id="fn-198" href="#fnanchor-198" class="fnlabel">198</a> -<i>Morse</i> v. <i>Auburn & S. Rw.</i>, 10 Barb. 623.</p> - -<p class="footnote"> -<a id="fn-199" href="#fnanchor-199" class="fnlabel">199</a> -Glenn, p. 259</p> - -<p class="footnote"> -<a id="fn-200" href="#fnanchor-200" class="fnlabel">200</a> -<i>R.</i> v. <i>Long</i>, 4 C. & P. 398; -<i>R.</i> v. <i>Crick</i>, 1 F. & F. 519.</p> - -<p class="footnote"> -<a id="fn-201" href="#fnanchor-201" class="fnlabel">201</a> -4 Coke Inst. 251; 4 Bla. Com. 197; 1 Hale, P. C. 429.</p> - -<p class="footnote"> -<a id="fn-202" href="#fnanchor-202" class="fnlabel">202</a> -<i>Rex</i> v. <i>Van Butchell</i>, 3 C. & P. 629; -<i>Rice</i> v. <i>The State</i>, 8 Mo. 561; -<i>Com.</i> v. <i>Thompson</i>, 6 Mass. 134.</p> - -<p class="footnote"> -<a id="fn-203" href="#fnanchor-203" class="fnlabel">203</a> -<i>Rex</i> v. <i>Webb</i>, 1 M. & Rob. 405, -See also <i>Rex</i> v. <i>Simpson</i>, 4 C. & P. -407 n.</p> - -<p class="footnote"> -<a id="fn-204" href="#fnanchor-204" class="fnlabel">204</a> -Bolland, B., in <i>Rex</i> v. <i>Spiller</i>, 5 C. & P. 19; -<i>Lamphier</i> v. <i>Philpot</i>, -per Tindal, C.J, 8 C. & P. 575.</p> - -<p class="footnote"> -<a id="fn-205" href="#fnanchor-205" class="fnlabel">205</a> -Per Coleridge, J.; <i>Rex</i> v. <i>Spilling</i>, -2 M. & Rob. 107.</p> - -<p class="footnote"> -<a id="fn-206" href="#fnanchor-206" class="fnlabel">206</a> -<i>R.</i> v. <i>Chamberlaine</i>, 10 Cox, C. C. 486; -Blackburn, J.</p> - -<p class="footnote"> -<a id="fn-207" href="#fnanchor-207" class="fnlabel">207</a> -<i>State</i> v. <i>Shulz</i>, 55 Ia. 628.</p> - -<p class="footnote"> -<a id="fn-208" href="#fnanchor-208" class="fnlabel">208</a> -<i>Rex</i> v. <i>Williamson</i>, 3 C. & P. 635; -14 Eng. Com. Law Rep. 297.</p> - -<p class="footnote"> -<a id="fn-209" href="#fnanchor-209" class="fnlabel">209</a> -Cap. 4, sec. 16.</p> - -<p class="footnote"> -<a id="fn-210" href="#fnanchor-210" class="fnlabel">210</a> -<i>Rex</i> v. <i>St. John Long</i>, 4 C. & P. 378; -19 Eng. Com. Law Rep. 404.</p> - -<p class="footnote"> -<a id="fn-211" href="#fnanchor-211" class="fnlabel">211</a> -Wharton on Homicide, sec. 148.</p> - -<p class="footnote"> -<a id="fn-212" href="#fnanchor-212" class="fnlabel">212</a> -<i>Rex</i> v. <i>St. John Long</i>, 4 C. & P. 423; -19 E. C. L. R. 440.</p> - -<p class="footnote"> -<a id="fn-213" href="#fnanchor-213" class="fnlabel">213</a> -<i>Rice</i> v. <i>The State</i>, 8 Mo. 561.</p> - -<p class="footnote"> -<a id="fn-214" href="#fnanchor-214" class="fnlabel">214</a> -Ordronaux, secs. 80, 77. But see <i>R.</i> -v. <i>Nancy Simpson</i>, 4 C. & P. 407 n.</p> - -<p class="footnote"> -<a id="fn-215" href="#fnanchor-215" class="fnlabel">215</a> -<i>Rex</i> v. <i>Markuss</i>, 4 F. & F. 356.</p> - -<p class="footnote"> -<a id="fn-216" href="#fnanchor-216" class="fnlabel">216</a> -38 Ark. 605.</p> - -<p class="footnote"> -<a id="fn-217" href="#fnanchor-217" class="fnlabel">217</a> -<i>Com.</i> v. <i>Thompson</i>, 6 Mass. 134.</p> - -<p class="footnote"> -<a id="fn-218" href="#fnanchor-218" class="fnlabel">218</a> -<i>Rice</i> v. <i>State</i>, -8 Mo. 561.</p> - -<p class="footnote"> -<a id="fn-219" href="#fnanchor-219" class="fnlabel">219</a> -55 Iowa, 698.</p> - -<p class="footnote"> -<a id="fn-220" href="#fnanchor-220" class="fnlabel">220</a> -<i>R.</i> v. <i>Webb</i>, 1 M. & R. 405; Wharton on -Homicide, sec. 405.</p> - -<p class="footnote"> -<a id="fn-221" href="#fnanchor-221" class="fnlabel">221</a> -<i>R.</i> v. <i>Lee</i>, 4 F. & F. 63; <i>Com.</i> -v. <i>McPike</i>, 3 Cush. 181; <i>Com.</i> v. -<i>Hackett</i>, 2 Allen, 137; Wharton on Homicide, sec. 385.</p> - -<p class="footnote"> -<a id="fn-222" href="#fnanchor-222" class="fnlabel">222</a> -Wharton on Homicide, sec. 554.</p> - -<p class="footnote"> -<a id="fn-223" href="#fnanchor-223" class="fnlabel">223</a> -Wharton on Homicide, sec. 557.</p> - -<p class="footnote"> -<a id="fn-224" href="#fnanchor-224" class="fnlabel">224</a> -Medical Jurisprudence, sec. 1059.</p> - -<p class="footnote"> -<a id="fn-225" href="#fnanchor-225" class="fnlabel">225</a> -<i>Duchess of Kingston’s Case</i>, 20 Howell St. -Tr. 573; <i>Wilson</i> v. -<i>Rastall</i>, 4 T. R. 760; <i>Greenough</i> v. <i>Gaskill</i>, -1 Myl. & K. 103; <i>R.</i> v. <i>Gibbons</i>, -1 C. & P. 97; <i>Broad</i> v. <i>Pitt</i>, 3 C. & P. 579.</p> - -<p class="footnote"> -<a id="fn-226" href="#fnanchor-226" class="fnlabel">226</a> -<i>Duchess of Kingston’s Case</i>, supra.</p> - -<p class="footnote"> -<a id="fn-227" href="#fnanchor-227" class="fnlabel">227</a> -Belloc. Cours de Med. leg. 17.</p> - -<p class="footnote"> -<a id="fn-228" href="#fnanchor-228" class="fnlabel">228</a> -1 Greenleaf on Evidence, sec. 248; -<i>Campan</i> v. <i>North</i>, 39 Mich. 606.</p> - -<p class="footnote"> -<a id="fn-229" href="#fnanchor-229" class="fnlabel">229</a> -<i>Harris</i> v. <i>Russel</i>, 16 Ind. 209; -<i>Staunton</i> v. <i>Parker</i>, 19 Hun. 55; -<i>Fraser</i> v. <i>Jenneson</i>, 42 Mich. 206.</p> - -<p class="footnote"> -<a id="fn-230" href="#fnanchor-230" class="fnlabel">230</a> -2 N. Y. Rev. St. 406, sec. 73; <i>Hunn</i> -v. <i>Hunn</i>, 1 Thomp. & C. 499.</p> - -<p class="footnote"> -<a id="fn-231" href="#fnanchor-231" class="fnlabel">231</a> -<i>Pierson</i> v. <i>People</i>, 79 N. Y. 434.</p> - -<p class="footnote"> -<a id="fn-232" href="#fnanchor-232" class="fnlabel">232</a> -<i>Cohen</i> v. <i>Continental, etc., Ins. Co.</i>, -41 N. Y. Super. Ct. 296; <i>Grattan</i> -v. <i>Metropolitan L. Ins. Co.</i>, 80 N. Y. 281.</p> - -<p class="footnote"> -<a id="fn-233" href="#fnanchor-233" class="fnlabel">233</a> -<i>Hewitt</i> v. <i>Prime</i>, 21 Wend. 79.</p> - -<p class="footnote"> -<a id="fn-234" href="#fnanchor-234" class="fnlabel">234</a> -<i>Edington</i> v. <i>Ætna Life Ins. Co.</i>, -77 N. Y. 564, but see <i>Edington</i> v. -<i>Ætna Life Ins. Co.</i>, 67 N. Y. 185.</p> - -<p class="footnote"> -<a id="fn-235" href="#fnanchor-235" class="fnlabel">235</a> -<i>Lee</i> v. <i>Hammerton</i>, 10 L. T.; N. S. 730; <i>Mahony</i> v. -<i>Nat. Widow’s Life Assurance Fund</i>, L. R. 6 C. P. 252; <i>Baker</i> v. -<i>London & S. W. Railway</i>, L. R. 3 Q. B. 91; <i>Cossey</i> v. <i>L. B. & C.</i>, -L. R. 5 C. P. 146; <i>Skinner</i> v. <i>G. N. R.</i>, L. R. 9 Ex. 298.</p> - -<p class="footnote"> -<a id="fn-236" href="#fnanchor-236" class="fnlabel">236</a> -<i>Aveson</i> v. <i>Lord Kinnaird</i>, 6 East 188; Taylor on -Evidence, secs. 580, 581, 7th ed.</p> - -<p class="footnote"> -<a id="fn-237" href="#fnanchor-237" class="fnlabel">237</a> -<i>Bacon</i> v. <i>Charlton</i>, 7 Cush. 586; <i>Chapen</i> v. -<i>Marlborough</i>, 9 Gray 244; <i>Barber</i> v. <i>Merriam</i>, 11 Allen 322.</p> - -<p class="footnote"> -<a id="fn-238" href="#fnanchor-238" class="fnlabel">238</a> -<i>Kennard</i> v. <i>Burton</i>, 25 Me. 39; <i>Gray</i> v. <i>McLaughlin</i>, -26 Ia. 279; <i>Brown</i> v. <i>N. Y. C.</i>, 32 N. Y. 597; <i>Caldwell</i> v. -<i>Murphy</i>, 11 N. Y. 344; <i>Barber</i> v. <i>Merriam</i>, sup.; <i>Denlon</i> v. -<i>State</i>, 1 Swan 279; <i>Matteson</i> v. <i>N. Y. C.</i>, 35 N. Y. 487.</p> - -<p class="footnote"> -<a id="fn-239" href="#fnanchor-239" class="fnlabel">239</a> -<i>Chapin</i> v. <i>Malborough</i>, sup.; <i>Lush</i> v. <i>McDaniel</i>, 13 -Ired. L. 485; <i>Rogers</i> v. <i>Cain</i>, 30 Tex. 284; <i>Wilson</i> v. <i>Granby</i>, 47 -Conn.</p> - -<p class="footnote"> -<a id="fn-240" href="#fnanchor-240" class="fnlabel">240</a> -<i>Witt</i> v. <i>Witt</i>, 3 Sw. & Trist. 143.</p> - -<p class="footnote"> -<a id="fn-241" href="#fnanchor-241" class="fnlabel">241</a> -<i>Ill. Cen. R. R.</i> v. <i>Sutton</i>, 42 Ill. 438.</p> - -<p class="footnote"> -<a id="fn-242" href="#fnanchor-242" class="fnlabel">242</a> -<i>Rowell</i> v. <i>Lowell</i>, 11 Gray 420.</p> - -<p class="footnote"> -<a id="fn-243" href="#fnanchor-243" class="fnlabel">243</a> -<i>Roosa</i> v. <i>Boston Loan Co.</i>, 132 Mass. 439; <i>Quaife</i> v. <i>C. & N. W. R.</i>, -48 Wis. 513.</p> - -<p class="footnote"> -<a id="fn-244" href="#fnanchor-244" class="fnlabel">244</a> -<i>Denton</i> v. <i>State</i>, 1 Swan 279.</p> - -<p class="footnote"> -<a id="fn-245" href="#fnanchor-245" class="fnlabel">245</a> -Greenleaf on Evid. sec. 436; Ordronaux sec. 124; Glenn, p. -284.</p> - -<p class="footnote"> -<a id="fn-246" href="#fnanchor-246" class="fnlabel">246</a> -<i>Collier</i> v. <i>Simpson</i>, 5 C. & P. 73; <i>Reg.</i> v. <i>Thomas</i>, -13 Cox Cr. Cas. 77; Redfield on Wills, p. 145; <i>People</i> v. <i>Hall</i>, 48 -Mich. 486; Rogers on Expert Evidence, sec. 180; <i>Brown</i> v. <i>Sheppard</i>, -13 U. C. R. 178.</p> - -<p class="footnote"> -<a id="fn-247" href="#fnanchor-247" class="fnlabel">247</a> -<i>Bowman</i> v. <i>Woods</i>, 1 Ia. 44; <i>Luning</i> v. <i>State</i>, 1 -Chandler (Wisc.) 264; <i>Ripon</i> v. <i>Bittel</i>, 30 Wisc. 362; <i>Stirling</i> v. -<i>Thorp</i>, 54 Wisc.</p> - -<p class="footnote"> -<a id="fn-248" href="#fnanchor-248" class="fnlabel">248</a> -<i>Con. Mut. Life Ins. Co.</i> v. <i>Ellis</i>, 89 Ill. 516; Expert -Testimony, sec. 182.</p> - -<p class="footnote"> -<a id="fn-249" href="#fnanchor-249" class="fnlabel">249</a> -<i>Com.</i> v. <i>Sturtevant</i>, 117 Mass. 123.</p> - -<p class="footnote"> -<a id="fn-250" href="#fnanchor-250" class="fnlabel">250</a> -<i>Marshall</i> v. <i>Brown</i>, 15 N. W. Rep. 55.</p> - -<p class="footnote"> -<a id="fn-251" href="#fnanchor-251" class="fnlabel">251</a> -<i>Brown</i> v. <i>Sheppard</i>, 13 U. C. R. 178.</p> - -<p class="footnote"> -<a id="fn-252" href="#fnanchor-252" class="fnlabel">252</a> -<i>Pinney</i> v. <i>Cohill</i>, 12 N. W. Rep. 862; -<i>Ripon</i> v. <i>Bittell</i>, 30 Wisc. 362.</p> - -<p class="footnote"> -<a id="fn-253" href="#fnanchor-253" class="fnlabel">253</a> -<i>Ashworth</i> v. <i>Kittridge</i>, 12 Cush. 193.</p> - -<p class="footnote"> -<a id="fn-254" href="#fnanchor-254" class="fnlabel">254</a> -<i>Reg.</i> v. <i>Crouch</i>, 1 Cox Cr. Cas. 94; <i>Washburn</i> v. -<i>Cuddihy</i>, 8 Gray 430; <i>Huffman</i> v. <i>Click</i>, 77 N. C. 54; <i>Fraser</i> v. -<i>Jennison</i>, 42 Mich. 206, 214; <i>People</i> v. <i>Wheeler</i>, 9 Pac. Coast L. -J. 581; <i>Robinson</i> v. <i>N. Y. C.</i>, 24 A. L. J. 357.</p> - -<p class="footnote"> -<a id="fn-255" href="#fnanchor-255" class="fnlabel">255</a> -46 Conn. 330.</p> - -<p class="footnote"> -<a id="fn-256" href="#fnanchor-256" class="fnlabel">256</a> -<i>People</i> v. <i>Wheeler</i>, 9 Pac. C. L. Jour. 581.</p> - -<p class="footnote"> -<a id="fn-257" href="#fnanchor-257" class="fnlabel">257</a> -See also <i>Collier</i> v. <i>Simpson</i>, 5 C. & P. 73; <i>Ordway</i> v. -<i>Haynes</i>, 50 N. H. 159; <i>People</i> v. <i>Anderson</i>, 44 Cal. 65; <i>Carter</i> -v. <i>State</i>, 2 Cart. 617; <i>Gale</i> v. <i>Rector</i>, 5 Bradw. 484; <i>Harris</i> v. -<i>Panama R. Co.</i>, 3 Bosw. 7.</p> - -<p class="footnote"> -<a id="fn-258" href="#fnanchor-258" class="fnlabel">258</a> -<i>State</i> v. <i>Hoyt</i>, 46 Conn. 330.</p> - -<p class="footnote"> -<a id="fn-259" href="#fnanchor-259" class="fnlabel">259</a> -<i>Harvey</i> v. <i>State</i>, 40 Ind. 516; -<i>Wade</i> v. <i>De Witt</i>, 20 Texas 398; <i>State</i> -v. <i>West</i>, 1 Houston Cr. Cas. Del. 371.</p> - -<p class="footnote"> -<a id="fn-260" href="#fnanchor-260" class="fnlabel">260</a> -<i>Legg</i> v. <i>Drake</i>, 1 Ohio St. 286.</p> - -<p class="footnote"> -<a id="fn-261" href="#fnanchor-261" class="fnlabel">261</a> -Per Loomis, J., <i>State</i> v. <i>Hoyt</i>, sup.; <i>Wade</i> v. <i>De -Witt</i>, 20 Tex. 398, 400; <i>Luning</i> v. <i>State</i>, sup.; Experts and Expert -Testimony by U. C. Moak, 24 A. L. J. 267.</p> - -<p class="footnote"> -<a id="fn-262" href="#fnanchor-262" class="fnlabel">262</a> -<i>Yoe</i> v. <i>State</i>, 49 Ill. 410.</p> - -<p class="footnote"> -<a id="fn-263" href="#fnanchor-263" class="fnlabel">263</a> -<i>Russell</i> on Crimes, 4th ed. vol. iii. p. 250.</p> - -<p class="footnote"> -<a id="fn-264" href="#fnanchor-264" class="fnlabel">264</a> -<i>Higham</i> v. <i>Ridgway</i>, 10 East 109.</p> - -<p class="footnote"> -<a id="fn-265" href="#fnanchor-265" class="fnlabel">265</a> -Taylor’s Evid., vol. ii., sec. 1259; Alison’s Criminal Law of Scotland, -542; Wharton’s Evid., vol. i. p. 492.</p> - -<p class="footnote"> -<a id="fn-266" href="#fnanchor-266" class="fnlabel">266</a> -<i>Sizer</i> v. <i>Burt</i>, 4 Denio, 426; <i>Anthony</i> v. <i>Smith</i>, 2 Bos. (N.Y.) 503, -508; <i>Fraser</i> v. <i>Jameson</i>, 42 Mich. 206. 223.</p> - -<p class="footnote"> -<a id="fn-267" href="#fnanchor-267" class="fnlabel">267</a> -1 Smith Lead. Cas., 6th Ed. 509; <i>Kennedy</i> -v. <i>People</i>, 30 N. Y. 245.</p> - -<p class="footnote"> -<a id="fn-268" href="#fnanchor-268" class="fnlabel">268</a> -<i>Chicago, etc.</i>, v. <i>McGiven</i>, 78 Ill. 347; -<i>Hartford Pro. Ins. Co.</i> v. -<i>Harmer</i>, 20 Oh. St. 457.</p> - -<p class="footnote"> -<a id="fn-269" href="#fnanchor-269" class="fnlabel">269</a> -<i>Commonwealth</i> v. <i>Rodgers</i>, -7 Metc. 5, per Shaw, C.J.</p> - -<p class="footnote"> -<a id="fn-270" href="#fnanchor-270" class="fnlabel">270</a> -1 Greenl. Evid., sec. 440; <i>Jones</i> v. -<i>White</i>, 11 Hump. 268.</p> - -<p class="footnote"> -<a id="fn-271" href="#fnanchor-271" class="fnlabel">271</a> -Plowden, 125; Year Books, vol. v.</p> - -<p class="footnote"> -<a id="fn-272" href="#fnanchor-272" class="fnlabel">272</a> -<i>Whittaker</i> v. <i>Parker</i>, 42 Ia. 586; <i>State</i> v. <i>Watson</i>, -65 Me. 74; <i>Rutherford</i> v. <i>Morris</i>, 77 Ill. 404; <i>Tracy</i> Peerage, 10 -Cl. & Fin. 191.</p> - -<p class="footnote"> -<a id="fn-273" href="#fnanchor-273" class="fnlabel">273</a> -Taylor on Evidence, sec. 50, Ed. 1872.</p> - -<p class="footnote"> -<a id="fn-274" href="#fnanchor-274" class="fnlabel">274</a> -Best on Evidence, sec. 574.</p> - -<p class="footnote"> -<a id="fn-275" href="#fnanchor-275" class="fnlabel">275</a> -<i>State</i> v. <i>Wood</i>, 53 N. H. 484; <i>Masons</i> v. <i>Fuller</i>, 45 -Vt. 29; <i>New Orleans, etc., Rw.</i> v. <i>Allbretton</i>, 38 Miss. 247; <i>Re -Toomes</i>, 54 Cal. 515.</p> - -<p class="footnote"> -<a id="fn-276" href="#fnanchor-276" class="fnlabel">276</a> -<i>Fairchild</i> v. <i>Bascomb</i>, 35 Vt. 410; <i>Polk</i> v. <i>State</i>, -36 Ark. 117; <i>Roberts</i> v. <i>Johnson</i>, 58 N. Y. 613.</p> - -<p class="footnote"> -<a id="fn-277" href="#fnanchor-277" class="fnlabel">277</a> -<i>Hathaway</i> v. <i>Nat. Life Ins. Co.</i>, 48 Vt. 335, 351; -<i>Fairchild</i> v. <i>Bascomb</i>, supra.</p> - -<p class="footnote"> -<a id="fn-278" href="#fnanchor-278" class="fnlabel">278</a> -<i>Castner</i> v. <i>Sliker</i>, 33 N. J. (L.) 97; <i>State</i> v. -<i>Reddick</i>, 7 Kan. 143; <i>State</i> v. <i>Henkle</i>, 6 Ia. 380; <i>State</i> v. -<i>Cook</i>, 17 Kan. 391.</p> - -<p class="footnote"> -<a id="fn-279" href="#fnanchor-279" class="fnlabel">279</a> -<i>Horton</i> v. <i>Green</i>, 64 N. C. 64.</p> - -<p class="footnote"> -<a id="fn-280" href="#fnanchor-280" class="fnlabel">280</a> -<i>Emerson</i> v. <i>Lowell Gas Light Co.</i>, 6 Allen, 146.</p> - -<p class="footnote"> -<a id="fn-281" href="#fnanchor-281" class="fnlabel">281</a> -<i>Heald</i> v. <i>Wing</i>, 5 Me. 392.</p> - -<p class="footnote"> -<a id="fn-282" href="#fnanchor-282" class="fnlabel">282</a> -<i>Harris</i> v. <i>Panama R. R. Co.</i>, 3 Bosw. (N. Y.), 77; <i>Fairchild</i> v. <i>Bascomb</i>, -35 Vt. 398.</p> - -<p class="footnote"> -<a id="fn-283" href="#fnanchor-283" class="fnlabel">283</a> -<i>Re Toomes</i>, 54 Cal. 575.</p> - -<p class="footnote"> -<a id="fn-284" href="#fnanchor-284" class="fnlabel">284</a> -Greenleaf’s Evidence, 12th Ed., I. p. 483; <i>Livingstone’s case</i>, 14 -Grat. 592.</p> - -<p class="footnote"> -<a id="fn-285" href="#fnanchor-285" class="fnlabel">285</a> -<i>Lorg</i> v. <i>First German Congregation</i>, 63 Pa. St. 156; <i>Hills</i> v. <i>Home -Ins. Co.</i>, 129 Mass., 544, 551.</p> - -<p class="footnote"> -<a id="fn-286" href="#fnanchor-286" class="fnlabel">286</a> -<i>Lester</i> v. <i>Pittsford</i>, 7 Vt. 161; <i>Mendum</i> v. <i>Com.</i> 6 Rand. 704; <i>Tullis</i> -v. <i>Kidd</i>, 12 Ala. 648; <i>Sinclair</i> v. <i>Rourk</i>, 14 Ind. 540; <i>Winans</i> v. <i>N. Y., -etc., R. R. Co.</i>, 21 How. (U. S.) 88; <i>Boardman</i> v. <i>Woodman</i>, 47 N. H. 121; -<i>Davis</i> V. <i>State</i>, 35 Ind. 496.</p> - -<p class="footnote"> -<a id="fn-287" href="#fnanchor-287" class="fnlabel">287</a> -<i>Forgery</i> v. <i>First Nat. Bank</i>, 66 Ind. 123, 125; <i>McEwen</i> -v. <i>Bigelow</i>, 40 Mich. 217; <i>Kilborne</i> v. <i>Jennings</i>, 38 Iowa, 533.</p> - -<p class="footnote"> -<a id="fn-288" href="#fnanchor-288" class="fnlabel">288</a> -<i>Mitchell</i> v. <i>State</i>, 58 Ala. 418; <i>Forgery</i> v. -<i>First Nat. Bank</i>, 66 Ind. 123; <i>Parnell</i> v. <i>Commonwealth</i>, 86 Pa. St. -269; <i>Carter</i> v. <i>Baker</i>, 1 Sawy. (U. S. C. C.) 525.</p> - -<p class="footnote"> -<a id="fn-289" href="#fnanchor-289" class="fnlabel">289</a> -<i>Tatum</i> v. <i>Mohr</i>, 21 Ark. 355; <i>Getchell</i> v. <i>Hill</i>, 21 -Minn. 464.</p> - -<p class="footnote"> -<a id="fn-290" href="#fnanchor-290" class="fnlabel">290</a> -Ordronaux Principles, sec. 108–110.</p> - -<p class="footnote"> -<a id="fn-291" href="#fnanchor-291" class="fnlabel">291</a> -<i>St. Louis Mut. Ins. Co.</i> v. <i>Graves</i>, 6 Bush. 290.</p> - -<p class="footnote"> -<a id="fn-292" href="#fnanchor-292" class="fnlabel">292</a> -<i>Corsi</i> v. <i>Maretzek</i>, 4 E. D. Smith, 1.</p> - -<p class="footnote"> -<a id="fn-293" href="#fnanchor-293" class="fnlabel">293</a> -Wharton on Mental Unsoundness, sec. 282.</p> - -<p class="footnote"> -<a id="fn-294" href="#fnanchor-294" class="fnlabel">294</a> -<i>Keith</i> v. <i>Lothrop</i>, 10 Cush. 453; <i>Clark</i> v. <i>State</i>, 12 -Ohio, 483.</p> - -<p class="footnote"> -<a id="fn-295" href="#fnanchor-295" class="fnlabel">295</a> -Rules Relating to Opinion Evidence, 26 A. L. J. 486; -<i>State</i> v. <i>Smith</i>, 32 Me. 370; <i>Young</i> v. <i>Makepeace</i>, 103 Mass. 50.</p> - -<p class="footnote"> -<a id="fn-296" href="#fnanchor-296" class="fnlabel">296</a> -<i>State</i> v. <i>Powell</i>, 7 N. J. (L.), 269; <i>Davis</i> v. -<i>State</i>, 38 Ind. 37; <i>Gardner</i> v. <i>People</i>, 6 Parker, C. C. 202; -overruling, <i>Wilson</i> v. <i>People</i>, 4 Park., C. C. 619; <i>State</i> v. -<i>Jones</i>, 68 N. C. 443.</p> - -<p class="footnote"> -<a id="fn-297" href="#fnanchor-297" class="fnlabel">297</a> -<i>State</i> v. <i>Smith</i>, Supra; <i>Regina</i> v. <i>Stitt</i>, 30 U. C. -C. P. 30; <i>State</i> v. <i>Wood</i>, 53 N. H. 484.</p> - -<p class="footnote"> -<a id="fn-298" href="#fnanchor-298" class="fnlabel">298</a> -<i>State</i> v. <i>Bowman</i>, 78 N. C. 509; <i>State</i> v. <i>Slagh</i>, 83 -N. C. 630.</p> - -<p class="footnote"> -<a id="fn-299" href="#fnanchor-299" class="fnlabel">299</a> -<i>Com.</i> v. <i>Sturtevant</i>, 117 Mass. 122.</p> - -<p class="footnote"> -<a id="fn-300" href="#fnanchor-300" class="fnlabel">300</a> -<i>Newell</i> v. <i>Doty</i>, 33 N. Y. 83; <i>Buell</i> v. <i>N. Y. C.</i>, 31 -N. Y. Ct. of App. 314; <i>Matteson</i> v. <i>N. Y. C.</i> 62 Barb. 366; S. -C. 35 N. Y. 487.</p> - -<p class="footnote"> -<a id="fn-301" href="#fnanchor-301" class="fnlabel">301</a> -11 Allen, 322.</p> - -<p class="footnote"> -<a id="fn-302" href="#fnanchor-302" class="fnlabel">302</a> -<i>R.</i> v. <i>Whitehead</i>, 3 C. & K. 203; <i>Rich</i> v. -<i>Pierpont</i>. 3 F. & F. 36; <i>Twombly</i> v. <i>Leach</i>, -11 Cush. 405.</p> - -<p class="footnote"> -<a id="fn-303" href="#fnanchor-303" class="fnlabel">303</a> -<i>Mertz</i> v. <i>Detweeler</i>, 8 W. & S. 376; <i>Wright</i> v. -<i>Hardy</i>, 22 Wisc. 368.</p> - -<p class="footnote"> -<a id="fn-304" href="#fnanchor-304" class="fnlabel">304</a> -<i>Leighton</i> v. <i>Sargent</i>, 11 Fost. N. H. 120; <i>Williams</i> v. -<i>Poppleton</i>, 3 Oregon, 139; <i>Hoener</i> v. <i>Koch</i>, 84 Ill. 408; <i>Ramadge</i> -v. <i>Ryan</i>, 9 Bing. 333.</p> - -<p class="footnote"> -<a id="fn-305" href="#fnanchor-305" class="fnlabel">305</a> -<i>State</i> v. <i>Clark</i>, 12 Ired. 151; <i>Page</i> v. <i>Barker</i>, 40 -N. H. 477.</p> - -<p class="footnote"> -<a id="fn-306" href="#fnanchor-306" class="fnlabel">306</a> -<i>Ramadge</i> v. <i>Ryan</i>, 9 Bing. 335; <i>R.</i> v. <i>Searle</i>, 1 M. & -Rob. 75; <i>Fenwick</i> v. <i>Bell</i>, 1 C. & Kir. 312; <i>Gibson</i> v. <i>Williams</i>, -4 Wend. 320; <i>Morse</i> v. <i>State</i>, 6 Conn. 9.</p> - -<p class="footnote"> -<a id="fn-307" href="#fnanchor-307" class="fnlabel">307</a> -<i>Kennedy</i> v. <i>People</i>, 39 N. Y. 245.</p> - -<p class="footnote"> -<a id="fn-308" href="#fnanchor-308" class="fnlabel">308</a> -<i>New England Glass Co.</i> v. <i>Lovell</i>, 7 Cush. 319.</p> - -<p class="footnote"> -<a id="fn-309" href="#fnanchor-309" class="fnlabel">309</a> -<i>Ramadge</i> v. <i>Ryan</i>, supra; <i>Campbell</i> v. <i>Richards</i>, 5 B. -& Ad. 840.</p> - -<p class="footnote"> -<a id="fn-310" href="#fnanchor-310" class="fnlabel">310</a> -<i>Reynolds</i> v. <i>Robinson</i>, 64 N. Y. 595; <i>Shafer</i> v. <i>Deans ad’mor</i>, 29 Ia. 144.</p> - -<p class="footnote"> -<a id="fn-311" href="#fnanchor-311" class="fnlabel">311</a> -<i>Linn</i> v. <i>Sigsbee</i>, 67 Ill. 75; see <i>Bradbury</i> v. <i>Barden</i>, 35 Conn. 580.</p> - -<p class="footnote"> -<a id="fn-312" href="#fnanchor-312" class="fnlabel">312</a> -2 Taylor’s Evid., sec. 1259; 1 Wharton’s Evid., sec. 492.</p> - -<p class="footnote"> -<a id="fn-313" href="#fnanchor-313" class="fnlabel">313</a> -Bost. Med. and Sur. Journ., Feb. 25. 1869.</p> - -<p class="footnote"> -<a id="fn-314" href="#fnanchor-314" class="fnlabel">314</a> -Grier, J., in <i>Winans</i> v. <i>N. Y. & E. R.</i> -21 How. (U. S.) 88.</p> - -<p class="footnote"> -<a id="fn-315" href="#fnanchor-315" class="fnlabel">315</a> -Taylor’s Med. Jur. 6 Am. Ed. 53.</p> - -<p class="footnote"> -<a id="fn-316" href="#fnanchor-316" class="fnlabel">316</a> -Vol. i. p. 103.</p> - -<p class="footnote"> -<a id="fn-317" href="#fnanchor-317" class="fnlabel">317</a> -Redfield on Wills, vol. i. cap. 3, sec. 13.</p> - -<p class="footnote"> -<a id="fn-318" href="#fnanchor-318" class="fnlabel">318</a> -Sec. 195.</p> - -<p class="footnote"> -<a id="fn-319" href="#fnanchor-319" class="fnlabel">319</a> -De Divinatione, II. 58.</p> - -<p class="footnote"> -<a id="fn-320" href="#fnanchor-320" class="fnlabel">320</a> -<i>Com.</i> v. <i>Rodgers</i>, 7 Metc. 5.</p> - -<p class="footnote"> -<a id="fn-321" href="#fnanchor-321" class="fnlabel">321</a> -Wharton on Mental Unsoundness, sec. 293.</p> - -<p class="footnote"> -<a id="fn-322" href="#fnanchor-322" class="fnlabel">322</a> -<i>Thomas</i> v. <i>State</i>, 40 Texas, 65; <i>Parmell</i> v. <i>Com.</i>, -86 Pa. St. 260; <i>Jarrett</i> v. <i>Jarrett</i>, 11 W. Va. 627; <i>Flynt</i> v. -<i>Bodenhamer</i>, 80 N. C. 205.</p> - -<p class="footnote"> -<a id="fn-323" href="#fnanchor-323" class="fnlabel">323</a> -<i>Rex</i> v. <i>Searle</i>, 1 Mood. & Rob. 75; <i>R.</i> v. <i>Offord</i>, -5 C. & P. 168; <i>McAllister</i> v. <i>State</i>, 17 Ala. 434; <i>Delafield</i> v. -<i>Parish</i>, 25 N. Y. 9; <i>Com.</i> v. <i>Rodgers</i>, 7 Metc. 5; <i>Clark</i> v. -<i>State</i>, 12 Oh. 483; <i>Davis</i> v. <i>State</i>, 35 Ind. 496.</p> - -<p class="footnote"> -<a id="fn-324" href="#fnanchor-324" class="fnlabel">324</a> -<i>Puryear</i> v. <i>Reese</i>, 46 Tenn. 21; <i>White</i> v. <i>Bailey</i>, 10 -Mich. 155; <i>Dickenson</i> v. <i>Barber</i>, 9 Mass. 225.</p> - -<p class="footnote"> -<a id="fn-325" href="#fnanchor-325" class="fnlabel">325</a> -<i>People</i> v. <i>McGann</i>, 3 Parker Cr. Cas. 272, 298.</p> - -<p class="footnote"> -<a id="fn-326" href="#fnanchor-326" class="fnlabel">326</a> -<i>White</i> v. <i>Bailey</i>, 10 Mich. 155; <i>Fairfield</i> v. -<i>Bascomb</i>, 35 Vt. 398.</p> - -<p class="footnote"> -<a id="fn-327" href="#fnanchor-327" class="fnlabel">327</a> -<i>R.</i> v. <i>Richards</i>, 1 F. & F. 87.</p> - -<p class="footnote"> -<a id="fn-328" href="#fnanchor-328" class="fnlabel">328</a> -<i>Lovatt</i> v. <i>Tribe</i>, 3 F. & F. 9.</p> - -<p class="footnote"> -<a id="fn-329" href="#fnanchor-329" class="fnlabel">329</a> -<i>R.</i> v. <i>Higginson</i>, 1 Car. & R. 129; <i>R.</i> v. <i>Searle</i>, -1 Mood. & Rob. 75; <i>Malton</i> v. <i>Nesbit</i>, 1 C. & P. 72; <i>R.</i> v. -<i>Wright</i>, Russ. & Ry. 456; see also, <i>Tingley</i> v. -<i>Congill</i>, 48 Mo. 297.</p> - -<p class="footnote"> -<a id="fn-330" href="#fnanchor-330" class="fnlabel">330</a> -<i>R.</i> v. <i>Frances</i>, 4 Cox C. C. 57; <i>R.</i> v. <i>Searle</i>, sup.</p> - -<p class="footnote"> -<a id="fn-331" href="#fnanchor-331" class="fnlabel">331</a> -<i>Page</i> v. <i>State</i>, 61 Ala. 18; <i>Davis</i> v. <i>State</i>, 38 Md. -41.</p> - -<p class="footnote"> -<a id="fn-332" href="#fnanchor-332" class="fnlabel">332</a> -<i>Fairchild</i> v. <i>Bascomb</i>, 35 Vt. 398; <i>State</i> v. -<i>Windsor</i>, 5 Harring. 512; <i>U. S.</i> v. <i>McGlue</i>, 1 Curtis C. C. 1; -<i>McAlister</i> v. <i>State</i>, 17 Ala. 434; <i>Woodbury</i> v. <i>Obear</i>, 7 Gray, -467; <i>Hunt</i> v. <i>Lowell Gas Light Company</i>, 8 Allan, 169.</p> - -<p class="footnote"> -<a id="fn-333" href="#fnanchor-333" class="fnlabel">333</a> -10 Clark & Fin. 200.</p> - -<p class="footnote"> -<a id="fn-334" href="#fnanchor-334" class="fnlabel">334</a> -<i>Com.</i> v. <i>Rodgers</i>, 7 Metc. 5.</p> - -<p class="footnote"> -<a id="fn-335" href="#fnanchor-335" class="fnlabel">335</a> -<i>U. S.</i> v. <i>McGlue</i>, 1 Cur. C. C. 1.</p> - -<p class="footnote"> -<a id="fn-336" href="#fnanchor-336" class="fnlabel">336</a> -<i>Burton</i> v. <i>Scott</i>, 3 Rand. 399; 27 A. L. J. 148.</p> - -<p class="footnote"> -<a id="fn-337" href="#fnanchor-337" class="fnlabel">337</a> -<i>Com.</i> v. <i>Rich</i>, 14 Gray, 335; -<i>Hastings</i> v. <i>Rider</i>, 99 Mass. 625; <i>Russell</i> -v. <i>State</i>, 53 Miss. 36.</p> - -<p class="footnote"> -<a id="fn-338" href="#fnanchor-338" class="fnlabel">338</a> -<i>Heald</i> v. <i>Wing</i>, 5 Me. 392; -<i>Whetherbee</i> v. <i>Whetherbee</i>, 38 Vt. 454.</p> - -<p class="footnote"> -<a id="fn-339" href="#fnanchor-339" class="fnlabel">339</a> -27 Alb. L. J. 126.</p> - -<p class="footnote"> -<a id="fn-340" href="#fnanchor-340" class="fnlabel">340</a> -Glenn’s Laws of Med. Men, p. 212.</p> - -<p class="footnote"> -<a id="fn-341" href="#fnanchor-341" class="fnlabel">341</a> -<i>Cawdry</i> v. <i>Highley</i>, Cro. Car. 270; Godb. 441.</p> - -<p class="footnote"> -<a id="fn-342" href="#fnanchor-342" class="fnlabel">342</a> -<i>Bill</i> v. <i>Neal</i>, 1 Sev. 52.</p> - -<p class="footnote"> -<a id="fn-343" href="#fnanchor-343" class="fnlabel">343</a> -<i>Flower’s</i> Case, Cro. Car. 211; -<i>Wharton</i> v. <i>Brook</i>, Vent. 21.</p> - -<p class="footnote"> -<a id="fn-344" href="#fnanchor-344" class="fnlabel">344</a> -<i>Southee</i> v. <i>Denny</i>, 1 Ex. 196.</p> - -<p class="footnote"> -<a id="fn-345" href="#fnanchor-345" class="fnlabel">345</a> -<i>Bergold</i> v. <i>Puckta</i>, 2 Thomp. & C. N. Y. 532.</p> - -<p class="footnote"> -<a id="fn-346" href="#fnanchor-346" class="fnlabel">346</a> -<i>Johnson</i> v. <i>Robertson</i>, 8 Port. R. 586; <i>Poe</i> v. -<i>Mondford</i>, Cro. Eliz. 620; <i>Tutty</i> v. <i>Alewin</i>, 11 Mod. 221; <i>Secord</i> -v. <i>Harris</i>, 18 Barb. 425; see, also, <i>Watson</i> v. <i>Vanderlash</i>, Het. -69.</p> - -<p class="footnote"> -<a id="fn-347" href="#fnanchor-347" class="fnlabel">347</a> -<i>Davis</i> v. <i>Ockham</i>, Sty. 235; <i>Edsall</i> v. <i>Russell</i>, 4 M. -& G. 1090.</p> - -<p class="footnote"> -<a id="fn-348" href="#fnanchor-348" class="fnlabel">348</a> -<i>Southee</i> v. <i>Denny</i>, 1 Ex. 196; <i>Ramadge</i> v. <i>Ryan</i>, 9 -Bing. 333.</p> - -<p class="footnote"> -<a id="fn-349" href="#fnanchor-349" class="fnlabel">349</a> -<i>Long</i> v. <i>Chubb</i>, 5 C. & P. 55; <i>Allen</i> v. <i>Eaton</i>, 1 -Roll. Abr. 54; <i>Goddart</i> v. <i>Haselfoot</i>, 1 Viner’s Abr. (S. A.) pl. 12; -<i>White</i> v. <i>Carroll</i>, 42 N. Y. 161.</p> - -<p class="footnote"> -<a id="fn-350" href="#fnanchor-350" class="fnlabel">350</a> -<i>Ayre</i> v. <i>Craven</i>, 2 Ad. & E. 2.</p> - -<p class="footnote"> -<a id="fn-351" href="#fnanchor-351" class="fnlabel">351</a> -<i>Clarke</i> v. <i>Freeman</i>, 11 Beav. 112; <i>Ramadge</i> v. -<i>Wakley</i>, cited 9 Bing. 333.</p> - -<p class="footnote"> -<a id="fn-352" href="#fnanchor-352" class="fnlabel">352</a> -Odgers on Libel and Slander, p. 50.</p> - -<p class="footnote"> -<a id="fn-353" href="#fnanchor-353" class="fnlabel">353</a> -<i>Hunter</i> v. <i>Sharpe</i>, 4 F. & F. 983; and see <i>Morrison</i> v. -<i>Harmer</i>, 4 Scott, 524.</p> - -<p class="footnote"> -<a id="fn-354" href="#fnanchor-354" class="fnlabel">354</a> -<i>Macleod</i> v. <i>Wakley</i>, 3 C. & P. 311.</p> - -<p class="footnote"> -<a id="fn-355" href="#fnanchor-355" class="fnlabel">355</a> -<i>Sugoe’s</i> Case, Hetl. 175; <i>Edsall</i> v. <i>Russell</i>, 4 M. & -G. 1090.</p> - -<p class="footnote"> -<a id="fn-356" href="#fnanchor-356" class="fnlabel">356</a> -<i>Rodgers</i> v. <i>Cline</i>, 56 Miss. 808; <i>Camp</i> v. <i>Martin</i>, 23 -Conn. 86; <i>Jones</i> v. <i>Diver</i>, 22 Ind. 184.</p> - -<p class="footnote"> -<a id="fn-357" href="#fnanchor-357" class="fnlabel">357</a> -<i>Collins</i> v. <i>Carnegie</i>, 1 A. & E. 695.</p> - -<p class="footnote"> -<a id="fn-358" href="#fnanchor-358" class="fnlabel">358</a> -<i>Skirving</i> v. <i>Ross</i>, 31 C. P. (Ont.) 423.</p> - -<p class="footnote"> -<a id="fn-359" href="#fnanchor-359" class="fnlabel">359</a> -<i>Ayre</i> v. <i>Craven</i>, 2 A. & E. 2; -<i>Dixon</i> v. <i>Smith</i>, 5 H. -& N. 450.</p> - -<p class="footnote"> -<a id="fn-360" href="#fnanchor-360" class="fnlabel">360</a> -Anon. 1 Ham. 83; <i>Foster</i> v. <i>Small</i>, 3 Whart. 138.</p> - -<p class="footnote"> -<a id="fn-361" href="#fnanchor-361" class="fnlabel">361</a> -<i>Clay</i> v. <i>Roberts</i>, 9 Jur. (N. S.) 580.</p> - -<p class="footnote"> -<a id="fn-362" href="#fnanchor-362" class="fnlabel">362</a> -Odgers on Slander, p. 69; <i>Rutherford</i> v. <i>Evans</i>, 4 C. & -P. 79; <i>Collins</i> v. <i>Carnegie</i>, 1 Ad. & E. 697; <i>Moises</i> v. <i>Thornton</i>, -3 Esp. 4; <i>Wakley</i> v. <i>Healey</i>, 4 Ex. 53.</p> - -<p class="footnote"> -<a id="fn-363" href="#fnanchor-363" class="fnlabel">363</a> -<i>Van Tassel</i> v. <i>Capson</i>, 1 Denio. 250; <i>Kinney</i> v. -<i>Nash</i>, 3 Comst. 177; <i>Ayre</i> v. <i>Craven</i>, sup.</p> - -<p class="footnote"> -<a id="fn-364" href="#fnanchor-364" class="fnlabel">364</a> -Glenn’s Laws of Med. Men, 230; <i>Harrison</i> -v. <i>Bush</i>, 5 El. & B. 344.</p> - -<p class="footnote"> -<a id="fn-365" href="#fnanchor-365" class="fnlabel">365</a> -Per Pigot, C.B., in <i>Bell</i> v. <i>Parke</i>, -10 Ir. C. L. Rep., N. S., 288.</p> - -<p class="footnote"> -<a id="fn-366" href="#fnanchor-366" class="fnlabel">366</a> -<i>Humphreys</i> v. <i>Stilwell</i>, 2 F. & F. 590; <i>Murphey</i> v. -<i>Kellett</i>, 13 Ir. C. L. Rep. N. S. 688.</p> - -<p class="footnote"> -<a id="fn-367" href="#fnanchor-367" class="fnlabel">367</a> -<i>Alpen</i> v. <i>Morton</i>, 21 Oh. St. 536.</p> - -<p class="footnote"> -<a id="fn-368" href="#fnanchor-368" class="fnlabel">368</a> -<i>Clarke</i> v. <i>Hawke</i>, 9 Grant, 52; <i>Denison</i> v. <i>Denison</i>, -13 Gr. 596; <i>Hoghton</i> v. <i>Hoghton</i>, 15 Beav. 299; <i>Haguenin</i> -v. <i>Baseley</i>, 14 Ves. 300; Story, I Eq. Jur. sec. 314. But see -<i>Andeureid’s</i> Appeal, 89 Pa. St. 114; <i>McEwan</i> v. <i>Milne</i>, 5 Ont. R. -100.</p> - -<p class="footnote"> -<a id="fn-369" href="#fnanchor-369" class="fnlabel">369</a> -Law Rep. 1 Ch. 252.</p> - -<p class="footnote"> -<a id="fn-370" href="#fnanchor-370" class="fnlabel">370</a> -<i>Hoghton</i> v. <i>Hoghton</i>, sup.; <i>Dent</i> -v. <i>Bennett</i>, 4 Myl. & C. 276; <i>Cadwallader</i> -v. <i>West</i>, 48 Mo. 483.</p> - -<p class="footnote"> -<a id="fn-371" href="#fnanchor-371" class="fnlabel">371</a> -<i>Clarke</i> v. <i>Hawke</i>, sup.; <i>Dent</i> -v. <i>Bennett</i>, sup.</p> - -<p class="footnote"> -<a id="fn-372" href="#fnanchor-372" class="fnlabel">372</a> -<i>Dent</i> v. <i>Bennett</i>, sup.; -<i>Gibson</i> v. <i>Russell</i>, 2 Y. & Coll. C. C. 104; -<i>Popham</i> v. <i>Brooke</i>, 5 Russ. 104.</p> - -<p class="footnote"> -<a id="fn-373" href="#fnanchor-373" class="fnlabel">373</a> -<i>Cadwallader</i> v. <i>West</i>, 48 Mo. 483.</p> - -<p class="footnote"> -<a id="fn-374" href="#fnanchor-374" class="fnlabel">374</a> -<i>Allan</i> v. <i>Davis</i>, 4 De G. & Sim. 133.</p> - -<p class="footnote"> -<a id="fn-375" href="#fnanchor-375" class="fnlabel">375</a> -<i>Billage</i> v. <i>Southbee</i>, 9 Hare, 534, 540.</p> - -<p class="footnote"> -<a id="fn-376" href="#fnanchor-376" class="fnlabel">376</a> -<i>Peacock</i> v. <i>Kesnot</i>, 8 L. T. 292; -<i>Wright</i> v. <i>Proud</i>, 13 Ves. 136.</p> - -<p class="footnote"> -<a id="fn-377" href="#fnanchor-377" class="fnlabel">377</a> -<i>Pratt</i> v. <i>Barker</i>, 1 Sim. 1.</p> - -<p class="footnote"> -<a id="fn-378" href="#fnanchor-378" class="fnlabel">378</a> -<i>Mitchell</i> v. <i>Homfray</i>, 8 Q. B. D. 587.</p> - -<p class="footnote"> -<a id="fn-379" href="#fnanchor-379" class="fnlabel">379</a> -<i>Aheare</i> v. <i>Hogan</i>, Dru. 322.</p> - -<p class="footnote"> -<a id="fn-380" href="#fnanchor-380" class="fnlabel">380</a> -<i>Doggett</i> v. <i>Lane</i>, 12 Mo. 215.</p> - -<p class="footnote"> -<a id="fn-381" href="#fnanchor-381" class="fnlabel">381</a> -<i>Middleton</i> v. <i>Sherbourne</i>, 4 Y. & Coll. 358.</p> - -<p class="footnote"> -<a id="fn-382" href="#fnanchor-382" class="fnlabel">382</a> -<i>Jones</i> v. <i>Godrich</i>, 5 Moo. P. C. 16.</p> - -<p class="footnote"> -<a id="fn-383" href="#fnanchor-383" class="fnlabel">383</a> -<i>Farlar</i> v. <i>Lane</i>, 29 L. T. 2; -<i>Jones</i> v. <i>Godrich</i>, 5 Moo. P. C. 16; -<i>Reece</i> v. <i>Pressey</i>, 2 Jur. N. S. 380.</p> - -<p class="footnote"> -<a id="fn-384" href="#fnanchor-384" class="fnlabel">384</a> -<i>Greville</i> v. <i>Lylee</i>, 7 Moo. P. C. 320; -<i>Durnell</i> v. <i>Corfield</i>, 3 L. T. -323; 1 Robarts, 51; <i>Major</i> v. <i>Knight</i>, 4 N. C. 661.</p> - -<p class="footnote"> -<a id="fn-385" href="#fnanchor-385" class="fnlabel">385</a> -<i>Ashwell</i> v. <i>Lomi</i>, L. R. 2 P. & D., 477. -See also <i>Crispell</i> v. <i>Dubois</i>, 4 Barb. 393.</p> - -<p class="footnote"> -<a id="fn-386" href="#fnanchor-386" class="fnlabel">386</a> -<i>Hides</i> v. <i>Hides</i>, 65 How. Pr. Rep. 17; -<i>Middleton</i> v. <i>Sherburne</i>, 4 Y. & Coll. 358.</p> - -<p class="footnote"> -<a id="fn-387" href="#fnanchor-387" class="fnlabel">387</a> -<i>Brown</i> v. <i>State</i>, 9 Baxter, 45.</p> - -<p class="footnote"> -<a id="fn-388" href="#fnanchor-388" class="fnlabel">388</a> -<i>Seavey</i> v. <i>Preble</i>, 64 Me. 120.</p> - -<p class="footnote"> -<a id="fn-389" href="#fnanchor-389" class="fnlabel">389</a> -3 Co. Inst. 203; 20 A. L. J. 320.</p> - -<p class="footnote"> -<a id="fn-390" href="#fnanchor-390" class="fnlabel">390</a> -<i>Reg.</i> v. <i>Cuddy</i>, 1 C. & K. 210; -<i>Reg.</i> v. <i>Coney</i>, L. R. 8 Q. B. D. p. 569.</p> - -<p class="footnote"> -<a id="fn-391" href="#fnanchor-391" class="fnlabel">391</a> -<i>R.</i> v. <i>Case</i>, 19 L. J. M. C. 174; -<i>R.</i> v. <i>Stanton</i>, 1 Car. & Kir. 415.</p> - -<p class="footnote"> -<a id="fn-392" href="#fnanchor-392" class="fnlabel">392</a> -<i>Rex</i> v. <i>Rosinski</i>, 1 Moo. C. C. 19.</p> - -<p class="footnote"> -<a id="fn-393" href="#fnanchor-393" class="fnlabel">393</a> -<i>De May</i> v. <i>Roberts</i>, 46 Mich. 160; -41 Am. Rep. 154.</p> - -<p class="footnote"> -<a id="fn-394" href="#fnanchor-394" class="fnlabel">394</a> -<i>Pennell</i> v. <i>Cummings</i>, 75 Me.</p> - -<p class="footnote"> -<a id="fn-395" href="#fnanchor-395" class="fnlabel">395</a> -<i>Fletcher</i> v. <i>Fletcher</i>, 1 E. & E. 420; -<i>Anderson</i> v. <i>Burrows</i>, 4 C. & P. 210.</p> - -<p class="footnote"> -<a id="fn-396" href="#fnanchor-396" class="fnlabel">396</a> -<i>Hall</i> v. <i>Semple</i>, 3 F. & F. 337.</p> - -<p class="footnote"> -<a id="fn-397" href="#fnanchor-397" class="fnlabel">397</a> -<i>Scott</i> v. <i>Wakem</i>, 3 F. & F. 333.</p> - -<p class="footnote"> -<a id="fn-398" href="#fnanchor-398" class="fnlabel">398</a> -R. S. O. cap. 220, secs. 8, 9; 16 & 17 Vict. -cap. 96, secs. 4 & 5; (Imp. Stat.).</p> - -<p class="footnote"> -<a id="fn-399" href="#fnanchor-399" class="fnlabel">399</a> -<i>Reg.</i> v. <i>West</i>, 2 C. & K. 784.</p> - -<p class="footnote"> -<a id="fn-400" href="#fnanchor-400" class="fnlabel">400</a> -<i>R.</i> v. <i>West</i>, 2 C. & K. 784; <i>Mitchell</i> v. <i>Connor</i>, 78 Ky. 204; Russell -on Crimes, vol. i, pp. 670, 740; <i>State</i> v. <i>Dickinson</i>, 41 Wis. 299.</p> - -<p class="footnote"> -<a id="fn-401" href="#fnanchor-401" class="fnlabel">401</a> -Imp. Stat. 24 & 25 Vict. cap. 100, secs. 58, 59; Can. Stat. 32 & 33 -Vict. cap. 20, secs. 59, 60.</p> - -<p class="footnote"> -<a id="fn-402" href="#fnanchor-402" class="fnlabel">402</a> -<i>State</i> v. <i>Slagle</i>, 83 N. C. 630; <i>State</i> v. <i>Fitzgerald</i>, 49 Ia. 260.</p> - -<p class="footnote"> -<a id="fn-403" href="#fnanchor-403" class="fnlabel">403</a> -<i>State</i> v. <i>Gedicke</i>, 43 N. J. L. 86; <i>Reg.</i> v. <i>Fraser</i>, 9 Cox C. C. 228; -<i>Reg.</i> v. <i>Hannah</i>, 13 Cox, C. C. 54.</p> - -<p class="footnote"> -<a id="fn-404" href="#fnanchor-404" class="fnlabel">404</a> -<i>Bradford</i> v. <i>People</i>, 20 Hun. (N. Y.) 309.</p> - -<p class="footnote"> -<a id="fn-405" href="#fnanchor-405" class="fnlabel">405</a> -<i>Rex.</i> v. <i>Burnett</i>, 4 M. & S. 272; <i>Rex.</i> v. <i>Sutton</i>, 4 Burr. 2116; <i>Rex.</i> -v. <i>Vantandillo</i>, 4 M. & S. 73.</p> - -<p class="footnote"> -<a id="fn-406" href="#fnanchor-406" class="fnlabel">406</a> -3 & 4 Vict. cap. 29, sec. 8; 30 & 31 Vict. cap. 84, sec. 32.</p> - -<p class="footnote"> -<a id="fn-407" href="#fnanchor-407" class="fnlabel">407</a> -16 Vict. cap. 170, sec. 1.</p> - -<p class="footnote"> -<a id="fn-408" href="#fnanchor-408" class="fnlabel">408</a> -<i>Carson</i> v. <i>State</i>, Ala. Sup. Ct. Dec. 1881; 25 A. L. J. 366; <i>State</i> v. -<i>Kansas</i>, 29 Kans. 384; and see post Druggists.</p> - -<p class="footnote"> -<a id="fn-409" href="#fnanchor-409" class="fnlabel">409</a> -R. S. Ont. cap. 142, sec. 34; <i>Reg.</i> v. <i>Coll. of P. & S.</i>, 44 Ont. Q. B. -146.</p> - -<p class="footnote"> -<a id="fn-410" href="#fnanchor-410" class="fnlabel">410</a> -<i>Boynton</i> v. <i>Somersworth</i>, 58 N. H. 321.</p> - -<p class="footnote"> -<a id="fn-411" href="#fnanchor-411" class="fnlabel">411</a> -<i>Hitchcock</i> v. <i>Burgett</i>, 38 Mich. 501.</p> - -<p class="footnote"> -<a id="fn-412" href="#fnanchor-412" class="fnlabel">412</a> -32 Hy. VIII., cap. 42.</p> - -<p class="footnote"> -<a id="fn-413" href="#fnanchor-413" class="fnlabel">413</a> -2 & 3 Wm. IV., cap. 75.</p> - -<p class="footnote"> -<a id="fn-414" href="#fnanchor-414" class="fnlabel">414</a> -32 & 33 Vict., cap. 29, sec. 100.</p> - -<p class="footnote"> -<a id="fn-415" href="#fnanchor-415" class="fnlabel">415</a> -1 Jac. I., cap. 12.</p> - -<p class="footnote"> -<a id="fn-416" href="#fnanchor-416" class="fnlabel">416</a> -1 Russ. on Crimes, 465.</p> - -<p class="footnote"> -<a id="fn-417" href="#fnanchor-417" class="fnlabel">417</a> -3 Inst. 110; 12 Co. 113 a.</p> - -<p class="footnote"> -<a id="fn-418" href="#fnanchor-418" class="fnlabel">418</a> -2 East P. C. 652.</p> - -<p class="footnote"> -<a id="fn-419" href="#fnanchor-419" class="fnlabel">419</a> -<i>Williams</i> v. <i>Williams</i>, L. R., -20 Ch. D. 659; <i>Reg.</i> v. <i>Sharpe</i>, Dea. -and Bell, C. C. 160.</p> - -<p class="footnote"> -<a id="fn-420" href="#fnanchor-420" class="fnlabel">420</a> -Am. Law T., July, 1871.</p> - -<p class="footnote"> -<a id="fn-421" href="#fnanchor-421" class="fnlabel">421</a> -<i>Guthrie</i> v. <i>Weaver</i>, 1 Mo. App. 136; -4 Brady, 502; <i>Wynkoop</i> v. -<i>Wynkoop</i>, 6 Wright, 293.</p> - -<p class="footnote"> -<a id="fn-422" href="#fnanchor-422" class="fnlabel">422</a> -<i>Bogert</i> v. <i>Indianapolis</i>, 13 Ind. 138.</p> - -<p class="footnote"> -<a id="fn-423" href="#fnanchor-423" class="fnlabel">423</a> -Willcock, cap. 10.</p> - -<p class="footnote"> -<a id="fn-424" href="#fnanchor-424" class="fnlabel">424</a> -2 East P. Cr. 652; <i>R.</i> v. <i>Gilles</i>, Russ. & Ry. 366, -n.; <i>R.</i> v. <i>Lynn</i>, 2 T. R. 733; <i>Reg.</i> v. <i>Sharpe</i>, 1 D. & B. -160; <i>Reg.</i> v. <i>Price</i>, L. R. 12 Q. B. D. 247.</p> - -<p class="footnote"> -<a id="fn-425" href="#fnanchor-425" class="fnlabel">425</a> -<i>Tate</i> v. <i>State</i>, 6 Black. (Ind.) 111; <i>Com.</i> v. -<i>Loring</i>, 8 Pick. (Mass.) 370; <i>Com.</i> v. <i>Marshall</i>, 11 Pick. 350; -<i>Com.</i> v. <i>Cooley</i>, 10 Pick. 37.</p> - -<p class="footnote"> -<a id="fn-426" href="#fnanchor-426" class="fnlabel">426</a> -2 R. S. 688, sec. 13.</p> - -<p class="footnote"> -<a id="fn-427" href="#fnanchor-427" class="fnlabel">427</a> -23 Albany L. J. 421.</p> - -<p class="footnote"> -<a id="fn-428" href="#fnanchor-428" class="fnlabel">428</a> -R. S. O. cap. 143.</p> - -<p class="footnote"> -<a id="fn-429" href="#fnanchor-429" class="fnlabel">429</a> -<i>Tate</i> v. <i>State</i>, 6 Black. 111.</p> - -<p class="footnote"> -<a id="fn-430" href="#fnanchor-430" class="fnlabel">430</a> -2 Com. 429.</p> - -<p class="footnote"> -<a id="fn-431" href="#fnanchor-431" class="fnlabel">431</a> -<i>Meagher</i> v. <i>Driscoll</i>, 99 Mass. 281; <i>Barnstable</i> v. -<i>Thatcher</i>, 3 Metc. 243; <i>Bracegirdle</i> v. <i>Orford</i>, 2 M. & S. 77; -<i>Brewer</i> v. <i>Dero</i>, 11 M. & W. 625.</p> - -<p class="footnote"> -<a id="fn-432" href="#fnanchor-432" class="fnlabel">432</a> -<i>Granger’s Ins. Co.</i> v. <i>Brown</i>, 57 Miss. 308.</p> - -<p class="footnote"> -<a id="fn-433" href="#fnanchor-433" class="fnlabel">433</a> -32 Henry VIII. cap. 42.</p> - -<p class="footnote"> -<a id="fn-434" href="#fnanchor-434" class="fnlabel">434</a> -R. S. O. cap. 144.</p> - -<p class="footnote"> -<a id="fn-435" href="#fnanchor-435" class="fnlabel">435</a> -<i>Simonds</i> v. <i>Henry</i>, 39 Me. 153.</p> - -<p class="footnote"> -<a id="fn-436" href="#fnanchor-436" class="fnlabel">436</a> -Glenn’s Laws, p. 251.</p> - -<p class="footnote"> -<a id="fn-437" href="#fnanchor-437" class="fnlabel">437</a> -McClelland’s Civil Malpractice, p. 19.</p> - -<p class="footnote"> -<a id="fn-438" href="#fnanchor-438" class="fnlabel">438</a> -<i>Eakin</i> v. <i>Brown</i>, 1 E. D. Smith, 36.</p> - -<p class="footnote"> -<a id="fn-439" href="#fnanchor-439" class="fnlabel">439</a> -<i>Clarke</i> v. <i>Kerwin</i>, 4 E. D. -Smith, 21: <i>Parker</i> v. <i>Adams</i>, 12 Metc. 417.</p> - -<p class="footnote"> -<a id="fn-440" href="#fnanchor-440" class="fnlabel">440</a> -<i>Keily</i> v. <i>Cotton</i>, 26 Alb. L. J. 483.</p> - -<p class="footnote"> -<a id="fn-441" href="#fnanchor-441" class="fnlabel">441</a> -<i>Boyle</i> v. <i>Winslow</i>, 5 Phil. (Pa.) 136.</p> - -<p class="footnote"> -<a id="fn-442" href="#fnanchor-442" class="fnlabel">442</a> -Russell on Crimes, vol. I. p. 720.</p> - -<p class="footnote"> -<a id="fn-443" href="#fnanchor-443" class="fnlabel">443</a> -Taswell-Langmead, English Constit. History, p. 41.</p> - -<p class="footnote"> -<a id="fn-444" href="#fnanchor-444" class="fnlabel">444</a> -<i>Street</i> v. <i>Blackburn</i>, 1 H. Bl. 159; -<i>Wilson</i> v. <i>Brett</i>, 11 M. & W. 113.</p> - -<p class="footnote"> -<a id="fn-445" href="#fnanchor-445" class="fnlabel">445</a> -<i>Hancke</i> v. <i>Hooper</i>, 7 C. & P. 81.</p> - -<p class="footnote"> -<a id="fn-446" href="#fnanchor-446" class="fnlabel">446</a> -Glenn’s Laws, p. 209.</p> - -<p class="footnote"> -<a id="fn-447" href="#fnanchor-447" class="fnlabel">447</a> -Peake’s N. P. C. 83, 84.</p> - -<p class="footnote"> -<a id="fn-448" href="#fnanchor-448" class="fnlabel">448</a> -<i>Piper</i> v. <i>Menifee</i>, 12 B. Monr. 465.</p> - -<p class="footnote"> -<a id="fn-449" href="#fnanchor-449" class="fnlabel">449</a> -<i>Simonds</i> v. <i>Henry</i>, 39 Me. 155.</p> - -<p class="footnote"> -<a id="fn-450" href="#fnanchor-450" class="fnlabel">450</a> -<i>Slater</i> v. <i>Balter</i>, 2 Wils. 359, 362.</p> - -<p class="footnote"> -<a id="fn-451" href="#fnanchor-451" class="fnlabel">451</a> -<i>Lee</i> v. <i>Griffin</i>, 1 E. B. & S. 272.</p> - -<p class="footnote"> -<a id="fn-452" href="#fnanchor-452" class="fnlabel">452</a> -<i>Maxon</i> v. <i>Perrott</i>, 17 Mich. 332.</p> - -<p class="footnote"> -<a id="fn-453" href="#fnanchor-453" class="fnlabel">453</a> -<i>Whitcomb</i> v. <i>Reid</i>, 31 Miss. 567.</p> - -<p class="footnote"> -<a id="fn-454" href="#fnanchor-454" class="fnlabel">454</a> -<i>Gilman</i> v. <i>Andrews</i>, 28 Vt. 24.</p> - -<p class="footnote"> -<a id="fn-455" href="#fnanchor-455" class="fnlabel">455</a> -<i>Allen</i> v. <i>Davis</i>, 4 DeG. & S. 133.</p> - -<p class="footnote"> -<a id="fn-456" href="#fnanchor-456" class="fnlabel">456</a> -4 My. & C. 269.</p> - -<p class="footnote"> -<a id="fn-457" href="#fnanchor-457" class="fnlabel">457</a> -<i>Colton</i> v. <i>Thomas</i>, 2 Brews. 308.</p> - -<p class="footnote"> -<a id="fn-458" href="#fnanchor-458" class="fnlabel">458</a> -<i>Morgan</i> v. <i>Schuyler</i>, 79 N. Y. 490; -S. C. 35 Am. Rep. 543.</p> - -<p class="footnote"> -<a id="fn-459" href="#fnanchor-459" class="fnlabel">459</a> -<i>State</i> v. <i>Holmes</i>, 28 La. Ann. 765.</p> - -<p class="footnote"> -<a id="fn-460" href="#fnanchor-460" class="fnlabel">460</a> -<i>Mills</i> v. <i>Perkins</i>, 120 Mass. 41.</p> - -<p class="footnote"> -<a id="fn-461" href="#fnanchor-461" class="fnlabel">461</a> -<i>Klock</i> v. <i>Burger</i>, 50 Md. 575.</p> - -<p class="footnote"> -<a id="fn-462" href="#fnanchor-462" class="fnlabel">462</a> -<i>Haniline</i> v. <i>Commonwealth</i>, 13 Bush. 350.</p> - -<p class="footnote"> -<a id="fn-463" href="#fnanchor-463" class="fnlabel">463</a> -R. S. O. cap. 145.</p> - -<p class="footnote"> -<a id="fn-464" href="#fnanchor-464" class="fnlabel">464</a> -Code of Med. Pol. 332, 333.</p> - -<p class="footnote"> -<a id="fn-465" href="#fnanchor-465" class="fnlabel">465</a> -55 Geo. III., cap. 194, sec, 5.</p> - -<p class="footnote"> -<a id="fn-466" href="#fnanchor-466" class="fnlabel">466</a> -13 B. Monr. 219.</p> - -<p class="footnote"> -<a id="fn-467" href="#fnanchor-467" class="fnlabel">467</a> -<i>Jones</i> v. <i>George</i>, -13 Rep. 738; Tex. Sup. Ct. (1882).</p> - -<p class="footnote"> -<a id="fn-468" href="#fnanchor-468" class="fnlabel">468</a> -Chitty on Contracts, p. 393.</p> - -<p class="footnote"> -<a id="fn-469" href="#fnanchor-469" class="fnlabel">469</a> -<i>Howe</i> v. <i>Young</i>, 16 Ind. 312; -2 Hilliard on Torts, p. 297, sec. A.</p> - -<p class="footnote"> -<a id="fn-470" href="#fnanchor-470" class="fnlabel">470</a> -<i>Brown</i> v. <i>Marshall</i>, 47 Mich. 576.</p> - -<p class="footnote"> -<a id="fn-471" href="#fnanchor-471" class="fnlabel">471</a> -<i>VanBracken</i> v. <i>Fondar</i>, 12 John. 468; -<i>Jones</i> v. <i>Murray</i>, 3 Monr. 85; -<i>Marshall</i> v. <i>Peck</i>, 1 Dana. 609.</p> - -<p class="footnote"> -<a id="fn-472" href="#fnanchor-472" class="fnlabel">472</a> -Ordronaux, secs. 183–184.</p> - -<p class="footnote"> -<a id="fn-473" href="#fnanchor-473" class="fnlabel">473</a> -2 Selden, 397, (N. Y.)</p> - -<p class="footnote"> -<a id="fn-474" href="#fnanchor-474" class="fnlabel">474</a> -2 R. S. sec. 662, 319.</p> - -<p class="footnote"> -<a id="fn-475" href="#fnanchor-475" class="fnlabel">475</a> -2 Car. & Kir. 368.</p> - -<p class="footnote"> -<a id="fn-476" href="#fnanchor-476" class="fnlabel">476</a> -<i>Hansford</i> v. <i>Payne</i>, 11 Bush. 380.</p> - -<p class="footnote"> -<a id="fn-477" href="#fnanchor-477" class="fnlabel">477</a> -<i>Norton</i> v. <i>Sewall</i>, 106 Mass. 143.</p> - -<p class="footnote"> -<a id="fn-478" href="#fnanchor-478" class="fnlabel">478</a> -<i>Ibid.</i></p> - -<p class="footnote"> -<a id="fn-479" href="#fnanchor-479" class="fnlabel">479</a> -<i>George</i> v. <i>Skivington</i>, L. R. 5 Exch. 1.</p> - -<p class="footnote"> -<a id="fn-480" href="#fnanchor-480" class="fnlabel">480</a> -<i>Davidson</i> v. <i>Nicholls</i>, 11 Allen, 514.</p> - -<p class="footnote"> -<a id="fn-481" href="#fnanchor-481" class="fnlabel">481</a> -<i>R.</i> v. <i>Noakes</i>, 4 F. & F. 920.</p> - -<p class="footnote"> -<a id="fn-482" href="#fnanchor-482" class="fnlabel">482</a> -1 Lewin C. C. 169.</p> - -<p class="footnote"> -<a id="fn-483" href="#fnanchor-483" class="fnlabel">483</a> -4 F. & F. 525.</p> - -<p class="footnote"> -<a id="fn-484" href="#fnanchor-484" class="fnlabel">484</a> -<i>Wohlfarht</i> v. <i>Beckert</i>, 27 Hun, 74: 92 N.Y. 490.</p> - -<p class="footnote"> -<a id="fn-485" href="#fnanchor-485" class="fnlabel">485</a> -R. S. O., c. 145, sec. 27.</p> - -<p class="footnote"> -<a id="fn-486" href="#fnanchor-486" class="fnlabel">486</a> -Sections, 28–31.</p> - -<p class="footnote"> -<a id="fn-487" href="#fnanchor-487" class="fnlabel">487</a> -<i>Ray</i> v. <i>Burbank</i>, 6 Ga. 505.</p> - -<p class="footnote"> -<a id="fn-488" href="#fnanchor-488" class="fnlabel">488</a> -56 Geo. III. cap. 58, sec. 3; 31 & 32 Vict. cap. -121, sec. 24; 23 & 24 -Vict. cap. 84, sec. 30.</p> - -<p class="footnote"> -<a id="fn-489" href="#fnanchor-489" class="fnlabel">489</a> -<i>Hoard</i> v. <i>Peck</i>, 56 Barb. 202.</p> - -<p class="footnote"> -<a id="fn-490" href="#fnanchor-490" class="fnlabel">490</a> -<i>Common.</i> v. <i>Ramsdell</i>, 130 Mass. 68.</p> - -<p class="footnote"> -<a id="fn-491" href="#fnanchor-491" class="fnlabel">491</a> -<i>State</i> v. <i>Laffer</i>, 38 Iowa, 422; -<i>Common.</i> v. <i>Ramsdell</i>, supra; <i>Common.</i> -v. <i>Hallett</i>, 103 Mass. 452; <i>Common.</i> v. <i>Butterrick</i>, -6 Cush. 247.</p> - -<p class="footnote"> -<a id="fn-492" href="#fnanchor-492" class="fnlabel">492</a> -<i>Nixon</i> v. <i>State</i>, 76 Ind. 524; <i>State</i> v. <i>Wray</i>, 72 N. -C. 253; <i>Woods</i> v. <i>State</i>, 36 Ark. 36; S. c. 38 -Am. Rep. 22.</p> - -<p class="footnote"> -<a id="fn-493" href="#fnanchor-493" class="fnlabel">493</a> -<i>State</i> v. <i>Knowles</i>, 57 Iowa, 669.</p> - -<p class="footnote"> -<a id="fn-494" href="#fnanchor-494" class="fnlabel">494</a> -<i>Boone</i> v. <i>State</i>, 10 Tex. Ct. App. 418.</p> - -<p class="footnote"> -<a id="fn-495" href="#fnanchor-495" class="fnlabel">495</a> -See Glenn’s Laws, cap. viii.</p> - -<p class="footnote"> -<a id="fn-496" href="#fnanchor-496" class="fnlabel">496</a> -<i>Jauncey</i> v. <i>Knowles</i>, 29 L. J. Cha. 95.</p> - -<p class="footnote"> -<a id="fn-497" href="#fnanchor-497" class="fnlabel">497</a> -<i>Mackenna</i> v. <i>Parkes</i>, 36 L. J. Cha. 366.</p> - -<p class="footnote"> -<a id="fn-498" href="#fnanchor-498" class="fnlabel">498</a> -<i>Turner</i> v. <i>Reynall</i>, 14 C. B. N. S. 328. See, also, <i>Reg.</i> v. <i>Tefft</i>, 45 -Ont. Q. B. 144.</p> - -<p class="footnote"> -<a id="fn-499" href="#fnanchor-499" class="fnlabel">499</a> -<i>Anon.</i>, cited 2 K. & J. 446.</p> - -<p class="footnote"> -<a id="fn-500" href="#fnanchor-500" class="fnlabel">500</a> -<i>Farr</i> v. <i>Pearce</i>, 3 Mad. 74; -<i>Austen</i> v. <i>Boys</i>, 24 Beav. 598; 2 DeG. & J. 626.</p> - -<p class="footnote"> -<a id="fn-501" href="#fnanchor-501" class="fnlabel">501</a> -<i>McIntyre</i> v. <i>Belcher</i>, 10 Jur. N. S. 239.</p> - -<p class="footnote"> -<a id="fn-502" href="#fnanchor-502" class="fnlabel">502</a> -<i>Christie</i> v. -<i>Glark</i>, 16 (Ont.) C. P. 544; 27 Q. B. 21.</p> - -<p class="footnote"> -<a id="fn-503" href="#fnanchor-503" class="fnlabel">503</a> -<i>May</i> v. <i>Thomson</i>, L. R. 20 Ch. D. 718.</p> - -<p class="footnote"> -<a id="fn-504" href="#fnanchor-504" class="fnlabel">504</a> -<i>Dingnan</i> v. <i>Walker</i>, 33 L. T. 256.</p> - -<p class="footnote"> -<a id="fn-505" href="#fnanchor-505" class="fnlabel">505</a> -<i>Davis</i> v. <i>Mason</i>, 5 T. R. 118; <i>Carnes</i> v. <i>Nesbitt</i>, -7 H. & N. 778; <i>Sainter</i> v. <i>Ferguson</i> 7 C. B. 716; <i>Hastings</i> v. -<i>Whitley</i>, 2 Ex. 611; <i>Haynard</i> v. <i>Young</i>, 2 Chit. 407; <i>McClurg’s -Appeal</i>, 58 P. St. 51; Parsons on Contracts, vol. ii. p. 748.</p> - -<p class="footnote"> -<a id="fn-506" href="#fnanchor-506" class="fnlabel">506</a> -<i>Mallan</i> v. <i>May</i>, 11 M. & W. 653.</p> - -<p class="footnote"> -<a id="fn-507" href="#fnanchor-507" class="fnlabel">507</a> -<i>Horner</i> v. <i>Graves</i>, 7 Bing. 735.</p> - -<p class="footnote"> -<a id="fn-508" href="#fnanchor-508" class="fnlabel">508</a> -<i>Mallan</i> v. <i>May</i>, supra. Generally on this subject, see -Glenn’s Laws, cap. viii.</p> - -<p class="footnote"> -<a id="fn-509" href="#fnanchor-509" class="fnlabel">509</a> -Glenn’s Laws, cap. viii.</p> - -<p class="footnote"> -<a id="fn-510" href="#fnanchor-510" class="fnlabel">510</a> -<i>Nickson</i> v. <i>Brohan</i>, 10 Mod. 109.</p> - -<p class="footnote"> -<a id="fn-511" href="#fnanchor-511" class="fnlabel">511</a> -<i>Hancke</i> v. <i>Hooper</i>, 7 C. & P. 81.</p> - -<p class="footnote"> -<a id="fn-512" href="#fnanchor-512" class="fnlabel">512</a> -<i>R.</i> v. <i>Bennett</i>, 29 L. J.; M. C. 27; -<i>R.</i> v. <i>Tessymond</i>, 1 Lewin C. C. 169.</p> - -<p class="footnote"> -<a id="fn-513" href="#fnanchor-513" class="fnlabel">513</a> -<i>Wise</i> v. <i>Wilson</i>, 1 C. & K. 662.</p> - -<p class="footnote"> -<a id="fn-514" href="#fnanchor-514" class="fnlabel">514</a> -<i>Abernethy</i> v. <i>Hutchinson</i>, 3 L. J, 209; -<i>Nicols</i> v. <i>Pitman</i>, L. R. 26 Ch. D. 374.</p> - -<hr class="hr28" /> -<div class="fsize7 padtopa">Printed for the Publishers by - <span class="smcap">M<span>OORE</span></span> & - <span class="smcap">C<span>O.,</span></span> - <span class="smallerblk">20 Adelaide Street East, Toronto.</span></div> - -<div class="transnote fsize6" id="transnote"> -TRANSCRIBER’S NOTE - -<p class="first">Original printed spelling and grammar are retained, with a few -exceptions noted below. The corrections suggested in the CORRIGENDA have -been applied. Original printed page numbers look like this: -“|81|”. Footnotes were changed to endnotes, and renumbered 1–514. One -common printer’s error has been corrected silently; fairly often a -short word such as “a” was printed twice on successive lines. Thus, for -example, a sentence on page 99 originally read “And a a very recent -writer says . . . .”</p> - -<p class="pleft">In the index, ditto marks and white space were used in combination to -indicate words repeated from line to line. In this edition, em dashes -are used instead. Thus the <a href="#p198a">line</a> beginning “Provision made for study -of, in England”, was printed with two ditto marks and white space -sufficient to indicate the first five words repeated; herein rendered -“—  —  —  —  — in Canada”.</p> - -<div class="signature">to <a href="#toc">table of contents</a></div> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p-v">v</a>.</span> -“Practioners” changed to “Practitioners”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p-viii">viii</a>.</span> -“Connnecticut” to “Connecticut”.</p> - -<p class="hanga pleft"><span class="nowrap">Page - <a href="#p012">12</a>.</span> -“distingushed” to “distinguished”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p026">26</a>.</span> -“carlessness” to “carelessness”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p036">36</a>.</span> -“chairvoyant” to “clairvoyant”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p058">58</a>.</span> -The quotation beginning in the last paragraph has no closing -mark.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p074">74</a>.</span> -Closing quotation mark added after “for a misfeasance”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p066">66</a>.</span> -“exibibit” to “exhibit”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p080">80</a>.</span> -“probablity” to “probability”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p084">84</a>.</span> -“adminster” to “administer”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p101">101</a>.</span> -The quotation beginning ‘Again, “where books are thus offered’ -has no closing quotation mark.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p104">104</a> note.</span> -Unmatched left curly bracket removed -from “1 Houston Cr. Cas. (Del. 371”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p106">106</a>.</span> -“Uuited” to “United”. Also, “or there probable effect” is retained -because it is in a quotation.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p115">115</a>.</span> -Closing double quotation mark added after ‘are wholly -inadmissible as evidence.’</p> - -<p class="hanga pleft"> -<span class="nowrap">Page <a href="#p121">121</a>.</span> -This partial sentence: ‘gives the following, “In -a case of alleged child murder a medical witness, being -asked for a plain opinion of the cause of death, said, that -it was owing to “atelectasis and a general engorgement of -the pulmonary tissue.”’ was changed to ‘gives the following, “In -a case of alleged child murder a medical witness, being -asked for a plain opinion of the cause of death, said, that -it was owing to ‘atelectasis and a general engorgement of -the pulmonary tissue’.”’</p> - -<p class="hanga pleft"> -<span class="nowrap">Page <a href="#p126">126</a>.</span> -Closing quotation mark was added to the end of the paragraph -containing the following opening mark: ‘judges replied, “We think’.</p> - -<p class="hanga pleft"> -<span class="nowrap">Page <a href="#p128">128</a>.</span> -“Massachussetts” to “Massachusetts”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p130">130</a>.</span> -“physican” to “physician”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p134">134</a> note.</span> -“(N. S.) 580)” retained despite evident error.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p155">155</a>.</span> -Full stop removed from “chiefly murderers.;”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p172">172</a>.</span> -“particnlar” to “particular”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p177">177</a>.</span> -Closing quotation mark added to the end of the paragraph -containing the following opening mark: ‘Court refused it saying, -“Purchasers have to trust’.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p181">181</a>.</span> -“manslaugher” to “manslaughter”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p184">184</a> note.</span> -The rightmost right parenthesis was removed from “<i>Clay</i> -v. <i>Roberts</i>, 9 Jur. (N. S.) 580)”.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p191">191</a> note.</span> -“<i>Christie</i> v. <i>Glark</i>” is retained; but there -is no mention of this case in the TABLE OF CASES CITED beginning on -page vii.</p> - -<p class="hanga pleft"><span class="nowrap">Page <a href="#p209">209</a>, Index, Heading “Parent and Child”.</span> -“Liablility” to “Liability”.</p> -</div><!--transnote--> - - - - - - - - -<pre> - - - - - -End of Project Gutenberg's The Law and Medical Men, by Robert Vashon Rogers - -*** END OF THIS PROJECT GUTENBERG EBOOK THE LAW AND MEDICAL MEN *** - -***** This file should be named 51293-h.htm or 51293-h.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/5/1/2/9/51293/ - -Produced by Bryan Ness, RichardW, and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive/Canadian Libraries) - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. 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