payable till the time of signing judgment, or whether they would give five per cent. only (a). WIGHTMAN, J.-I should think the jury will not give more than five per cent. The making of the note was proved, and the note was in the terms stated in the declaration. WIGHTMAN, J. (in summing up.)-If parties have made a contract for six per cent. on a bill of exchange, they must abide by that contract; but where you have to allow interest as damages for the non-payment of money at a time agreed on, you will probably think five per cent. sufficient. Verdict for the plaintiff, for 6117. 3s., being Udall, for the plaintiffs. Phinn, for the defendants. [Attornies-Wilkinson & Hill, and Frowd.] (a) By the stat. 3 & 4 Will. 4, c. 42, s. 28, it is enacted, "That upon all debts or sums certain payable at a certain time, or otherwise, the jury on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, allow interest to the creditor, at a rate not exceeding the current rate of interest, from the time when such debts or sums certain were payable, if such debts or sums cer tain be payable by virtue of some 1842. WARD v. MORRISON. 1842. Adjourned Sittings in London after Trinity Term, 1842. BEFORE LORD DENMAN, C. J. June 30th. A physician cannot sue for his fees for any thing he has done as a physician, either in attending or in prescribing medicine for a pa tient; but if he acts as a sur LITTLE v. OLDAKER. ASSUMPSIT for work and labour, with a count upon an account stated. Plea, non assumpsit. It was opened by Butt, for the plaintiff, that the plaintiff was a surgeon and a member of the Royal College of Surgeons, and also physician to an institution for curing contractions of the feet; and that in the months of August and September, 1839, he had cured the defendant of the venereal disease, the plaintiff having attended the defendant not as a physician, but as a surgeon. He submitted that although a physician could not maintain an action for his fees, there was no law to hinder a physician, who was also a surgeon, from practising as a surgeon, and recovering the value of his services, in the same way as a physician done by him as could if he were employed to write a book. He cited the case of Battersby v. Lawrence (a). geon, or in any other capacity than that of physician, he may maintain an action for a compensation for what he has done, provided he can shew that it was not a physician; and the fact that the plain tiff was not paid fees at the times when he was consulted, goes to show that he was not acting as a physician. Mr. Belfour, the secretary to the Royal College of Surgeons, proved the seal of that college to the plaintiff's diploma as a member of it, dated the 17th of August, 1832 (b). (a) Ante, p. 277. (b) One object of this evidence no doubt was to shew that the plaintiff was a surgeon as well as a physician. It is, however, well worthy of consideration, whether a person who is not authorized to practise as an apothecary, and who practises as a surgeon, can recover either for attendance as a surgeon, or for medicines given by him in a surgical case, if he be not a mem ber of the College of Surgeons and has not passed the examination prescribed by the stat. 3 Hen. 8, c. 11. It appears, however, from the cases of Barnett v. Glossop and Gremare v. Le Clerc Bois Valon, hereafter cited, that, in order to raise that question, a defence on this ground must be specially pleaded, and that the defendant must shew by evidence that the plaintiff is not a member of the College of It was proved by a female servant of the plaintiff, that the defendant came to her master's house as a patient se Surgeons, and also (as it seems) that he has not passed the examination prescribed by the stat. 3 Hen. 8, c. 11. From the case of Barnett v. Glossop, 1 Scott, 621, it appears that, where the plaintiff would have had a good cause of action at common law, but that the promise is void because the requisites of a statute have not been complied with, the defendant must plead it specially, and cannot take advantage of this defence on the general issue. And it was for some time considered doubtful whether, in an action on an apothecary's bill, the defendant was not bound to plead that the plaintiff was not entitled to practise as an apothecary, if he meant to put the plaintiff to prove it; but it now appears to be settled by the case of Wag staffe v. Sharpe, 3 Mee. & W. 521, that the plaintiff must prove, even on the general issue, that he is entitled to practise as an apothecary, in consequence of the express terms of the 21st sect. of the Apothecaries' Act, 55 Geo. 3, c. 194. By the stat. 3 Hen. 8, c. 11, after reciting (inter alia) "That common artificers, as smiths, weavers, and women, boldly and accustomably take upon them great cures and things of great difficulty, in the which they partly use sorcery and witchcraft," it is enacted, "That no person within the city of London, nor within seven miles of the same, take upon him to exercise and occupy as a physician or surgeon, except he be first examined, approved, and admitted by the bishop of London or by the dean of St. Paul's for the time being, calling to him or them four doctors of physic, and for surgery other expert persons in that faculty, and for the first examination such as they shall think convenient, and afterwards alway four of them that have been so approved, upon the pain of forfeiture, for every month that they do occupy as physicians or surgeons not admitted nor examined after the tenour of this act, of £5, to be employed, the one-half thereof to the use of our sovereign Lord the King, and the other half thereof to any person that will sue for it by action of debt, in which no wager of law nor protection shall be allowed." And by sect. 2 of that statute, And over this, that no person out of the said city and precinct of seven miles of the same, except he have been (as is said before) approved in the same, take upon him to exercise and occupy as a physician or surgeon in any diocese within this realm; but if he be first examined and approved by the bishop of the same diocese, or he being out of the diocese, by his vicar-general, either of them calling to them such expert persons in the said faculties as their discretion shall think convenient, and giving their letters testimonials under their seal to him that they shall so approve, upon like pain to them that occupy contrary to this act (as is above said), to be levied and employed after the form before expressed." By sect. 3 of the same statute, there is a saving of the privileges of Oxford and Cambridge. As this statute 1842. LITTLE v. OLDAKER. 1842. LITTLE บ. OLDAKER. veral times a week during the months of August and September, 1839; but this witness, in her cross-examination, does not give costs, a plaintiff who recovered penalties under it would not be entitled to any costs at all. Shore v. Madiston, 1 Salk. 206; Com. Dig. tit. Costs, A. 2; Hullock on Costs, 17, 212. By the stat. 34 & 35 Hen. 8, c. 8, after reciting, That by the stat. 3 Hen. 8, c. 11, 'for the avoiding of sorceries, witchcrafts, and other inconveniences, it was enacted, that no person within the city of London, nor within seven miles of the same, should take upon him to exercise and occupy as physician or surgeon, except he be first examined, approved, and admitted by the bishop of London and other, under and upon certain pains and penalties in the same act mentioned: Sithence the making of which said act, the company and fellowship 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 been 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, saucelim and morphew, and such other like diseases; and yet the said persons have not taken any thing 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 or help of surgery, as daily do; but the greatest part of surgeons admitted been much more to be blamed than those persons that they trouble, for although the most part of the persons of the said craft of surgeons have small cunning, yet they will take great sums of money and do little, therefore, and by reason thereof, they do oftentimes impair and hurt their patients, rather than do them good.' "In consideration whereof, and for the ease, comfort, succour, help, relief and health of the King's poor subjects, inhabitants of this realm, now pained or diseased, or that hereafter shall be pained or diseased, be it ordained, established, and enacted, by authority of this present Parliament, that at all times from henceforth, it shall be lawful to every person being the King's subject, having knowledge and experience of the nature of herbs, roots and waters, or of the operation of the same by speculation or practice, within any part of the realm of England, or within any other the King's dominions, to practise, use, and minister in and to any outward sore, uncome wound, apostemations, outward swelling or disease, any herb or herbs, oint said, "My master is a physician, and is called Dr. Little, and Dr. Little' is on the door." ments, baths, pultess, and emplaisters, according to their cunning, experience, and knowledge in any of the diseases, sores, and maladies beforesaid, and all other like to the same, or drinks for the stone, strangury, or agues, without suit, vexation, trouble, penalty, or loss of their goods, the foresaid statute in the foresaid 3rd year of the King's most gracious reign, or any other act, ordinance, or statute to the contrary heretofore made, in anywise notwithstanding." With respect to this statute, Lord Chief Baron Comyns says (Com. Dig. tit. Physician, D.), that it "enables only to make application to external sores, &c., not to internal." In Le Colledge de Physitians' case, Littleton's Reports, 349, Lord Chief Justice Richardson, in delivering the judgment of the Court of Common Pleas, says, "On consideration of the 34 Hen. 8, we are of opinion, that this statute reaches neither in words, nor in intent and meaning, to give liberty to any person that practises or exercises for lucre or profit; and it is apparent from the preamble, and the statute also, that it was made principally against chirurgeons, who were covetous; for the statute has limited who shall practise and for what diseases, and the parties licensed by it were those who were good honest people, as old women, and such who will give neighbourly physic for charity and piety, and not such as seek gain by it, as empiricks, who do not any thing for piety and charity; so that this statute excludes all those who take any money or gain." This case afterwards came before the Court of King's Bench, on a writ of error, [nom. Butler v. Pres. of the Coll. of Physitians, Cro. Car. 256.], but the propositions of law laid down by L. C. J. Richardson, as above stated, do not appear to have been at all questioned; however, on that occasion, L. C. J. Richardson (who had then become Lord Chief Justice of England) conceived that the statute 34 & 35 Hen. 8, c. 8, was virtually repealed by the stat. 1 Mar., sess. 2, c. 9 [which confirms the stat. 14 & 15 Hen. 8, c. 5, which ratified the charter of the College of Physicians]; but Mr. Justice Croke was of opinion, that as the stat. 34 & 35 Hen. 8, c. 8, does not mention the stat. 14 & 15 Hen. 8, c. 5, which "was for Physicians' ; and as the stat. 34 & 35 Hen. 8, c. 8, was concerning chirurgeons, "that statute was never intended to be taken away by the act of primo Mariæ." But upon this point, Mr. Justice Jones and Mr. Justice Whitlocke, would not deliver their opinions, but all the Judges resolved, that, admitting the stat. 34 & 35 Hen. 8, c. 8, to be in force, the defendant had pleaded a bad plea, and the judgment therefore was against him. By the stat. 18 Geo. 2, c. 15, which was an act for making the surgeons of London and the barbers of London two separate and distinct corporations, it is enacted, [by sect. 8] that, "all such who already have been, or hereafter shall be, examined and approved pursuant to the rules of the said company, [of surgeons made, esta 1842. LITTLE 27. OLDAKER. |