Defence to claim for

malicious

prosecu

like amounts had been given in renewal thereof, and such other
bills had been in turn cancelled and renewed by two bills for
the sum of £50 each, dated the 9th of July, 1876, and drawn
by the said T. S. and accepted by the said H. M. respectively. tion.
The said two last-mentioned bills had been accepted by the said
H. M., and indorsed to the plaintiff in renewal of the said bills
dated the 9th day of November, 1875, as aforesaid, and save as
aforesaid there was no value or consideration for the accepting
of the said bills or either of them by the said H. M., nor for
their indorsement to the plaintiff.

4. The plaintiff by his said proof claimed against the estate of the said H. M. in respect of the said two bills of exchange dated the 9th of July, 1876, as well as in respect of the said two bills of exchange dated the 9th of November, 1875.

5. The plaintiff also proved against the estate of the said T. S. in respect of the same four bills of exchange dated the 9th of November, 1875, and the 9th of July, 1876. The said T. S. never received any value or consideration in respect of the said bills or any of them.

6. The defendant, as trustee of the estates of the said H. M. and of the said T. S., and with the assent and concurrence of his co-trustee, T. D. M., rejected the plaintiff's claim in respect of the said bills of exchange dated the 9th of November, 1875, and of certain other moneys which were not due to the plaintiff.

7. The defendant had reasonable and probable cause for believing, and did in fact believe, that the plaintiff in claiming against the estates of the said H. M. and T. S. respectively, in respect of the said bills of exchange as aforesaid, had committed an offence against the provisions of the Debtors Act, 1869, and the defendant further says that he acted under such belief and not otherwise in respect of the said proceedings.

satisfac

8. The defendant further says that before the commence- Accord and ment of this action, it was agreed by and between the plaintiff tion. and the defendant, that in consideration that the defendant would pay to the plaintiff the sum of £25, the plaintiff would accept the same in full accord and satisfaction of all rights of action which the plaintiff might have in respect of the matters set out in the statement of claim.

9. The defendant paid to the plaintiff the said sum of £25, and the plaintiff accepted the same in satisfaction as aforesaid.

Obstruc

tion of a market, and for tolls.

Market.

Claim for an Obstruction of a Market and for Tolls.

1. The plaintiffs are the owners in fee of a certain market holden in the borough of P., in the county of C., on Thursdays and Saturdays in each week for the buying and selling, amongst other things, of flesh meat, together with tolls, stallages, and other perquisites and profits to that market appertaining; and all persons selling flesh meat on Thursdays and Saturdays within the said borough ought of right to sell the same within the said market, and not within any private shop, without payment to the plaintiffs of the said tolls, stallages, and other perquisites and profits of the said market.

2. The defendant carries on business and sells, amongst other things, flesh meat.

3. On Saturday, the 4th of December, 1875, and from that day on each Saturday until the commencement of this action, the defendant exposed for sale in his said shop within the limits of the said borough flesh meat, and refused to pay the plaintiffs any of the said tolls, stallages, or other perquisites and profits of the said market, and caused them to lose the said tolls, stallages, and other perquisites and profits of the said market, and prevented their enjoyment thereof, and thereby disturbed the plaintiffs' said market.

The plaintiffs claim :

(1.) £100, damages for the disturbance of the said market. (2.) £1 for tolls.

Master and Servant.

See Negligence-Wrongful Dismissal.

Medical Man (a).

Action by a Surgeon for Charges for Attendance.

1. The plaintiff is a surgeon practising at No., Henrietta Claim by Street, Cavendish Square. The defendant is a stockbroker residing in Eaton Square.

(a) At common law a physician could not maintain an action for his fees, nor even for his travelling expenses (Veitch v. Russell, 3 Q. B. 928), unless there was a special contract, proved by unambiguous evidence and not by mere letters acknowledging a debt or an account in vague general terms. (Ib., and Attorney General v. Royal College of Surgeons, 30 L. J. Ch. 757.)

surgeon for pro

fessional

attend

ance, &c.

recover

By the 21 & 22 Vict. c. 90, s. 31 (amended in some few particulars by Statutory 22 & 23 Vict. c. 21, and 23 Vict. c. 7) persons registered pursuant to these provisions Acts are entitled to practise medicine or surgery, or both, according to allowing their qualifications, in any part of the Queen's dominions, and to demand medical and recover in any Court of law, with full costs of suit, their reasonable practicharges for professional aid, advice, and visits, and the cost of any medi- tioners to cines or other medical or surgical appliances rendered or supplied to their patients. By force of the words "according to their qualification," fees. it has been held that where the plaintiff's qualification is to practise surgery only he cannot recover for attendance on a medical case, as he is not within the section and therefore is under the common law disability in this respect; and with regard to medicine supplied by him during such attendance, he is within the Apothecaries Act (55 Geo. 3, c. 194), s. 21, cited infra. (Allison v. Haydon, 4 Bing. 619; Leman v. Fletcher, L. R. 8 Q. B. 319.) He may, however, recover for medicines supplied as ancillary to a surgical case. (Ib.)

Under this section it has been held that a registered physician may maintain the action without proof of any express contract or implied understanding that he should be paid. (Gibbon v. Budd, 32 L. J. Ex. 182; 2 H. & C. 92.)

By sect. 32, as amended by 23 Vict. c. 7, no person shall be entitled to Medical recover any charge in a Court of law for medical or surgical advice, and practiattendance, or for the performance of any operation or for medicine or tioners other medical or surgical appliances which he shall have both prescribed and supplied, unless he shall prove at the trial that he is registered under the Act (21 & 22 Vict. c. 90.)

must be registered

under Act.

Medical

Register,

how far evidence of

By sect. 28, a copy of the Medical Register directed to be printed and published by the general council formed under the Act purporting to be so printed and published, shall be evidence that the persons therein specified are registered according to the Act; and the absence of the name of any person from such copy shall be evidence until the contrary appear that he is not so registered, provided in this case that a certified copy under the hand of the registrar of the General Council or of any branch council of the entry of the name on the general or local register registra shall be evidence of registration.

By sect. 55, the Act is not to affect the lawful occupation, trade, or business of chemists and druggists, and dentists, so far as selling, compounding, or dispensing medicines.

With regard to apothecaries, the 55 Geo. 3, c. 194, s. 21, provides that no person shall be allowed to recover any charges claimed by him in a Court of law, unless he can prove at the trial that he has obtained a certificate from the Court of Examiners of the Apothecaries' Company.

F F

registration or non

tion.

Provisions

of 55 Geo.3, c. 194, as to apothecaries.

Claim by surgeon for

professional attendance.

Claim against surgeons for unskilful operation.

Registration must be proved

though not disputed.

Bye-law of
College of
Physicians
against fel.

lows, &c.,
suing.

No benefit, owing to plaintiff's want of

skill.

Medical practitioners,

when liable

for want of skill

and care.

2. On and after the 12th of April, 1877, the plaintiff attended as such surgeon on the defendant at his request, and on several occasions operated on him in and about the cure of a dislocated ankle, and supplied him with surgical appliances and medicines.

3. The plaintiff's charges for such attendances and supply of surgical appliances and medicines amount to £54, of which full particulars have been delivered to the defendant.

4. The defendant has not paid the same or any part thereof. The plaintiff claims £54.

Action against Surgeons of a Hospital for unskilfully performing a Surgical Operation (a).

1. The plaintiff is an infant of tender years, living with his parents at Street, in the county of Middlesex. The defendant W. T. is an operating surgeon to the N. E. Hospital

The provisions of sect. 32 of the Medical Act (21 & 22 Viet. c. 90), above cited, are not confined in their application to actions against patients themselves, but extend to cases where a third person has guaranteed payment for medical attendance, or is primarily liable for it as supplied on his credit. (Roscoe's Evidence, Nisi Prius, 13th ed. 486.)

Defences.]-1st. Non-registration of plaintiff pursuant to the Medical Act, as amended. (See ante.) It would seem that even if a defendant admits the allegation that plaintiff was duly qualified and registered, this does not dispense with the necessary proof of qualification, i, e. registration, on the trial, or deprive the defendant of the benefit of the plaintiff failing to prove it, as by the language of sect. 32 of 21 & 22 Vict. c. 90, registration is made a condition precedent to the plaintiff recovering. (Wagstaffe v. Sharpe, 3 M. & W. 521.)

2nd. That by a bye-law of a College of Physicians, to which the plaintiff belongs, it was provided that no member or fellow thereof should be entitled to sue for his fees, &c. It seems that the College of Physicians (London) has made a bye-law that no fellows of the College shall be entitled to sue. This, however, does not extend to members. This defence must be expressly stated in the statement of defence. 3rd. That the defendant had no benefit from the plaintiff's attendance, &c., in consequence of his want of skill. But if the practitioner has used due skill and diligence, he is entitled to claim remuneration, though he may not have effected a cure. If a surgical operation could have produced no useful result in any event, the surgeon cannot recover; but if an operation, which might have been useful, has failed to produce the desired effect, this does not disentitle him to remuneration for his services. (See Hill v. Featherstonehaugh, 7 Bing. 574.)

(a) A medical practitioner is liable for injuries caused through want of due care and skill. But it is not enough to render him liable that he has shown a less degree of skill than other medical men may have shown, or a less degree of care than he himself might have bestowed; nor is it enough that he has himself acknowledged some degree of want of care; there must have been a want of competent skill and ordinary care, and to such a degree as to have led to a bad result,

for children at H., and the defendant T. B. is a house surgeon Claim to the said hospital.

against surgeons

2. M. Smith, the mother of the said infant plaintiff, in for unthe month of June took the plaintiff to the said N. E. hos- skilful operation. pital, where the plaintiff was received as an out-door patient, and so remained up to the month of October in the same year.

3. In the said month of October, 1875, the defendants, without the consent or knowledge of the parents of the plaintiff, so negligently and unskilfully performed a surgical operation on the knee of the plaintiff that his health has suffered, and he has received permanent bodily injury.

The plaintiff claims through her next friend £100 damages.

Action by Executrices of Dentist to recover Charges for supplying and filting Artificial Teeth.

1. The plaintiffs are the executrices of the last will testament of E. S., deceased, of

surgeon dentist.

and

,

in the county of

2. The defendant is a clerk in holy orders, at county of

Claim by executrices of surgeondentist for profes

in the sional

3. During the month of 187, the said E. S. professionally attended on the defendant at his request, and rendered him services and did work and supplied materials in attending and operating upon the teeth of the defendant, and otherwise. And the said E. S. also supplied to and fitted the defendant with certain artificial teeth and a gold plate at his, the defendant's, request. The said E. S. from time to time rendered to the defendant accounts of his the said E. S.'s claim in respect of the premises, and there was at the death of the said E. S. due and payable to him by the defendant the sum of £31 in respect of the premises.

4. The said sum was at the commencement of this action, and now is, due and payable by the defendant to the plaintiffs as such executrices.

The plaintiffs claim £31.

Statement of Defence.

1. The defendant does not admit the allegations contained in the 3rd paragraph of the statement of claim, or any of them.

services.