distinct prohibitory clause, a person may, though unlicensed, maintain an action for business done by him as a surgeon within the limits (t). His lordship thought that at any rate it was incumbent upon the defendant in such action to prove that the plaintiff was not regularly licensed according to the statute (u). But it should seem that this opinion of Lord Ellenborough was an erroneous one, and that a person not duly qualified cannot recover for his services as a surgeon (x).

If a surgeon furnish a bill to his patient, leaving a blank for his charge for attendance, and the patient pay a certain sum on that account, the surgeon, as he made no specific charge, is bound by the sum so paid, and can recover no more (y).

In a declaration on a surgeon's bill for curing the defendant of the foul disease, no mention should be made of the nature of the disorder (z).

In Allison v. Haydon (a), it was held that a surgeon who is not an apothecary, cannot sue for medicine furnished by him during his attendance on a patient labouring under typhus fever, which cannot be considered a surgical case. The being a member of and having a certificate from the College of Surgeons, does not qualify the party to act as an apothecary in a case strictly within the sole province of an apothecary. Best, C. J., said:" In the infancy of medical science, surgeons were mere operators; and, by the statute 32 Hen. 8, c. 42, the barbers and surgeons of London were incorporated together, and made one company; but when the two corporations were made separate and distinct by statute 18 G. 2, c. 15, by which examiners were appointed to examine and admit surgeons, &c., the latter became a more honourable profession, and moved in a higher grade. The province of a surgeon has properly been said to be confined to the reduction and cure of fractures, and other injuries affecting the limbs, or such external ailments as may require the operation of the knife; and it cannot be extended to internal complaints, or local diseases. Whatever medicine may be necessary for the purpose of removing a complaint, which it is the duty of

(t) See, however, post, chap. 4, Inder, Illegal Contracts and Statutes; Beasley v. Bignold, 5 B. & Al. 335; Edgar v. Hunter, 1 Holt, N. P. R. 528; infra, note (r).

(u) Gremare v. Le Clerc Bois Valon, 2 Camp. 146; sed vide Blogg v. Pin

kers, 1 R. & M. 125.

(x) See Cope v. Rowlands, 2 M. &

W. 149.

(y) Tuson v. Batting, 3 Esp. R. 192. (z) Anon. 2 Wils. 20.

(a) 4 Bing. 619; 1 M. & P. 588, S. C.; 3 C. & P. 246, S. C.

a surgeon to attend to and cure, he might perhaps be allowed to recover for, but he is not entitled to recover, unless the medicine he administers be clearly ancillary to his duty as a surgeon (b).” But though a surgeon attends patients requiring surgical aid, and also dispenses medicines to them, not being certificated as an apothecary, he may recover for his surgical advice, though he may have no remedy for such medicines (c).

Chemists and Druggists.-Chemists and druggists are confined, in the due exercise of their business, to the preparing, compounding, dispensing, and vending drugs and medicines, and medicinal compounds (d). They cannot, for profit, give advice or attend a patient, or administer medicines; they can only recover for the value of the medicines, if not qualified to act as apothecaries or surgeons (e).

Implied Duty of Medical Men.-The law implies an undertaking on the part of apothecaries and surgeons, that they will use a reasonable degree of care and skill in the treatment of their patients (f). This is the implied duty of a medical practitioner; and he is responsible to his patient for the breach of it, as for a tort; although the patient was not the party who retained or was to remunerate him (g). And for gross carelessness or unskilfulness an action lies, although no reward was to be given (h). And if the patient is rather injured than benefited in his health, in consequence of any gross unskilfulness, or carelessness, on the part of his medical attendant, an action for fees

(b) See Simpson v. Ralfe, 4 Tyr. 325. (c) Id.

(d) See 55 G. 3, c. 194, s. 28. (e) See Allison v. Haydon, 1 M. & P. 592, 593, per Best, C. J., and Park, J.

(f) Slater v. Baker, 2 Wils. 359; Seare v. Prentice, 8 East, 348. In Rex v. Joseph Senior, who was tried before Bolland, B., at the Chester Spring Assizes, April 10, 1832, for manslaughter in killing a child in the exercise of his occupation of a manmidwife, the learned judge said, “that in the case of the second trial of St. John Long, at the Old Bailey, all the judges agreed, at a previous consultation, that if any medical man, whether regularly qualified or not, either by gross negligence, by tampering with the health of his patients, and by

making experiments with new medicines of unknown powers, or by gross ignorance, shall cause death, he shall be legally answerable for the consequences; but if even a person, not regularly qualified to exercise the medical profession, but still having considerable experience and skill, and anxious to use that experience to the best of his knowledge and judgment, shall, by any mistake, so practise as to cause death, he shall not be legally answerable for it;" see Rex v. Long, 4 C. & P. 398, 423; and Lanphier v. Phipos, 8 C. & P. 475; Hancke v. Hooper, 7 C. & P. 81.

(g) Pippin v. Sheppard, 11 Price, 400; Gladwell v. Steggall, 5 Bing. N. C. 733.

(h) Ante, 472, 473.

cannot be maintained (i). Although, in ordinary cases, the claim to remuneration does not depend upon the question, whether a cure has been effected, yet a person who professes to cure within a specific time, by means of sovereign medicines, and induces another to continue to employ him by false and fraudulent professions of skill and success, cannot recover for medicines and attendance, in the event of no benefit being derived (k). If improper remedies are adopted, or unfit medicines are administered, under the advice of a physician, the surgeon or apothecary is, at all events, entitled to be paid (7).

III. ARBITRATORS.

If there be a prior or subsequent express promise to pay an arbitrator for his trouble, it is clear he may maintain an action (m). But it appears to be doubtful whether, in the absence of an express promise, an arbitrator can sue for remuneration.

In Viranny v. Warne (n), Lord Kenyon considered that the appointment was not of a nature to raise a demand for payment; and expressed an opinion that the arbitrator was not entitled to recover any reward, unless there was an express promise. Dallas, C. J., seems, however, to have been of a contrary opinion, in a case before him at Nisi Prius (o). It has been decided, that the reasonableness of the amount of a fee which an arbitrator awards to be paid to himself, may be referred to the scrutiny and decision of the officer of the court (p).

If the arbitrator were a barrister, and were employed in his professional character, no remuneration could be recovered by action; as in such case the claim would fall within the principle that the employment of a counsel is honorary, and that there is no contract for a pecuniary reward (q).

(i) Duncan v. Blundell, 3 Stark. R. 6; see post, 559. "In the case of a medical man, if an operation which might have been useful, has merely failed in the event, he is nevertheless entitled to charge; but if it could have been useful in no event, he could have no claim on the patient;" per Alderson, J., Hill v. Featherstonhaugh, 7 Bing. 573, 574; 5 M. & P. 541, S. C. (k) Hupe v. Phelps, 2 Stark. R. 480. (1) Kannen v. M Mullen, Peake's R. 59; see Duncan v. Blundell, 3

Stark. R. 6.

(m) Hardres v. Prowd, Styles, 465. (n) Viranny, Executor, v. Warne, 4 Esp. R. 47; and see Burroughes v. Clarke, 1 Dowl. P. C. 48.

(0) Swinsford v. Burn, 1 Gow, R. 7, 8; see Watson on Arbit. 68; 2 Chit. Gen. Prac. 110, 111.

(p) Miller v. Robe, 3 Taunt. 461; Fitzgerald v. Graves, 5 id. 342; see George v. Lonsley, 8 East, 13. (9) Post, 573.

IV. ATTORNEYS (r).

The law implies a promise on the part of an attorney, that he will execute the business intrusted to his professional management with a reasonable degree of care, skill, and despatch; and he is liable to an action, if he be guilty of a default in either of these duties, whereby his client is injured. There must, however, be lata culpa, or crassa negligentia―a gross fault, negligence, or ignorance; and if the attorney acted to the best of his skill, and with a bonâ fide and ordinary degree of attention, he would not be responsible (s).

In Compton v. Chandless (t), which was an action against an attorney for negligence in preparing the memorial of an annuity, Le Blanc, J., observed, "that it was not every neglect that would subject a man to such an action; that an attorney was only bound to use reasonable care and skill in managing the business of his client; that if he were liable further, no man would venture to act in that capacity; that in the year 1787, the date of that annuity, it was not known that these trusts ought to be stated; that it might appear to a reader of the act at that time not to have been necessary; that courts of justice had held otherwise since, seeking to give full effect to the spirit of the act; but that the memorial, considering the date of it, was drawn with as much consideration and skill as could be reasonably expected from a professional man :”—and, accordingly, there was a verdict for the defendant. And in a subsequent case (u), Lord Ellenborough expressed his assent to this doctrine, and held that an attorney employed to purchase and prepare the assignment of an annuity, before the decisions holding that the trusts in the annuity deeds must be particularly set forth in the memorial, is not liable for negligence in not having pointed out to his employer that the annuity purchased was void, because the memorial omitted particularly to specify the trusts of the deeds. Nor is he responsible for the consequences of a mistake in a

(r) An attorney employed generally has no implied power to sue, only to defend; 3 Meriv. 12. What he may do if retained to do a particular act; also to do the needful, 4 Esp. R. 75.

(s) Russell v. Palmer, 2 Wils. 325; Pitt v. Yalden, 4 Burr. 2060; Laidler v. Elliott, B. & C. 738, 742; 5 D. & R. 635, 638, S. C.; see also Shil

cock v. Passman, 7 C. & P. 289. As to the different degrees of care, see ante, 471. As to an attorney's duty in relation to money of his client in his hands, see ante, 476.

(t) Cited in Baikie v. Chandless, 3 Camp. 19.

(u) Baikie v. Chandless, id. 17.

point of law upon which a reasonable doubt might be entertained (x). So a mistake in a nice point of practice, arising on the doubtful meaning of a rule of court, will not render an attorney liable to an action (y). Nor is an attorney in a cause liable for the absence, neglect, or want of attention in the counsel engaged in it (z). He is liable for disclosing privileged communications (a). But where an attorney is discharged by his client not on the ground of misconduct, he may act for the opposite party, provided he do not make an improper use of knowledge he has acquired whilst acting for his former client (b).

In an action against an attorney, for negligence in the prosecution of a former action brought by the plaintiff against two other attorneys (partners) for negligence in conducting the defence of the plaintiff, in an action which had been previously brought against him, and in which the declaration alleged, that, in consequence of the negligence of those attorneys judgment by default had been signed against the plaintiff, and such further proceedings had, that final judgment was afterwards signed and execution issued against him; and the defendant in that action. only produced the prothonotaries' book, in which all judgments by default were entered, in proof of that allegation, and the plaintiff was nonsuited; upon which he commenced an action against the defendant for not having procured proper evidence of that judgment:-it was held that, as it was not a direct allegation of a judgment on record with a plea distinctly putting it in issue, the not producing the record of the judgment was not such a want of skill or diligence, or gross negligence by the defendant, as to make him answerable to the plaintiff (c). Lord C. J. Tindal remarked, "It would be extremely difficult to define the exact limit by which the skill and diligence which an attorney undertakes to furnish, in the conduct of a cause, is bounded; or to trace precisely the dividing line between that reasonable skill and diligence which appears to satisfy his undertaking, and that crassa negligentia or lata culpa mentioned in some of the cases, for which he is undoubtedly responsible.

(x) Kemp v. Burt, 1 N. & M. 262; 4 B. & Ad. 424, S. C.

(y) Laidler v. Elliott, 3 B. & C. 738; 5 D. & R. 635, S. C.; per Lord Tenterden, C. J., Montriou v. Jeffreys, R. & M. 320.

(z) Lowry v. Guilford, 5 C. & P.

234.

(a) Taylor v. Blacklow, 3 Bing. N. C. 235; 3 Scott, 614, S. C.

(b) Johnson v. Marriott, 2 C. & M. 188; 4 Tyr. 78, S. C.

(c) Godefroy v. Dalton, 4 M. & P. 149; and 6 Bing. 461, S. C.