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port. S. C. By sect. 46, the general council may dispense with the provisions of the Act, or its own regulations, in favour of certain persons practising before the Act passed. A resident physician or medical officer of an hospital solely for foreigners (not being a British subject) is not affected by the Act if he has a foreign degree or diploma of M.D., and has passed such examination as entitles him to practise in his own country, and is in no other medical practice except as such resident officer; 22 Vict. c. 21, s. 6.
By the Dentists Act, 1878 (41 & 42 Vict. c. 33), s. 5, a person registered under that Act may practise dental surgery; and no person who is not registered under that Act, or is a legally qualified medical practitioner, is entitled to recover any fee for any dental operation, attendance, or advice. As to evidence of registration, see sect. 29.
By the Veterinary Surgeons Act, 1881 (44 & 45 Vict. c. 62), s. 17 (2), no person not for the time being on the register of veterinary surgeons, or who on the 27th August 1881, held the veterinary certificate of the Highland and Agricultural Society of Scotland, shall be entitled after 31st December, 1883, to recover any fee for performing any veterinary operation or for giving attendance or advice.
The superintendent of a station of a railway company cannot, as such, and without express authority, make the company liable for a surgeon's bill for attendance on a person injured by an accident on the railway; Cox v. Midland Counties Ry. Co., 3 Exch. 268; but the general manager of a railway has, incidental to his employment, authority to bind the company to pay for surgical attendance bestowed at his request on a servant of the company injured by an accident on their railway. Walker v. Gt. W. Ry. Co., L. R., 2 Ex. 228.
Defence. If the defendant have received nojbenefit, in consequence of the plaintiff's want of skill, the latter cannot recover. Kannen v. M.Mullen, Peake, 59; Duffit v. James, cited 7 East, 480. But the remuneration of a practitioner who has used due skill and diligence does not depend on his effecting a
In the case of a surgeon, if an operation which might have been useful have failed in the event, he is nevertheless entitled to charge; but if it could have been useful in no event, he has no claim. Per Alderson, J., in Hill v. Featherstonhaugh, 7 Bing. 574.
Physicians' Fees. At common law, a physician could maintain no action for his fees; Chorley v. Bolcot, 4 T. R. 317; nor for 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 account,” in vague general terms; S. C.; Att.-Gen. v. R. College of Physicians, infra; or unless he had rendered services as a surgeon. Battersby v. Lawrence, Car. & M. 277. But the Medical Act, 1886, s. 6 (ante, p. 492), replacing the Medical Act, 1838, s. 31, gives a general right of action to all registered medical practitioners; and a physician, if registered, may now sue without proof of any express contract or implied understanding with the patient that he should be paid. Gibbon v. Budd, 2 H. & C. 92; 32 L. J., Ex. 182. By that section, however, any college of physicians in the United Kingdom, may make a bye-law that their fellows shall not sue for their fees; and if they do, the bye-law may be pleaded in bar. The Royal College of Physicians has passed such a bye-law, but this does not include members. Vide S. c. That college can grant licences without restricting their licentiates from compounding and selling the medicine they prescribe. Att.-Gen. v. R. College of Physicians, 1 J. & H. 561; 30 L. J., Ch. 757.
ACTION FOR WAGES AND WRONGFUL DISMISSAL.
In an action by a servant for his wages the plaintiff must prove a hiring, of which service will be evidence, the length of time of service, and the amount of wages due.
An indefinite hiring in the case of servants, without mention of time, is presumably a hiring for a year. Lilley v. Elwin, 11 Q. B. 742; Turner v. Robinson, infra. The fact that the wages are payable monthly makes no difference. And if, during the year, the master dismiss his servant without cause, the latter is entitled, as damages, to his wages until the end of the year. Beeston v. Collyer, 4 Bing. 309; Fawcett v. Cash, 5 B. & Ad. 904. See, however, as to damages, post, p. 499. If the servant leave his service during the year without good cause, he cannot recover any of the current wages; Huttman v. Boulnois, 2 C. & P. 510. So, if he be discharged for good cause during the year, either by his master or a magistrate's order; Lilley v. Elwin, supra; Ridgway v. Hunger ford Market Co., 3 Ad. & E. 171 ; even though the master has recovered damages against him for the misconduct. Turner v. Robinson, 5 B. & Ad. 789. So, if the servant die during the year. Plymouth v. Throgmorton, 1 Salk. 65. But where S. was employed as consulting engineer, at 500l. payable in equal quarterly instalments, for 15 months, to complete certain works, and died after two instalments became due, but before the work was finished, his administrator was held entitled to recover the two instalments. Stubbs v. Holywell Ry. Co., L. R., 2 Ex. 311. The rule that an indefinite hiring is to be taken as a yearly one is not a rule of law; but the jury are to say what the terms of hiring were, judging from the circumstances of the case, including evidence, if any, of usage; thus, on an indefinite hiring at certain weekly wages, the jury may infer that the hiring is weekly. Baxter v. Nurse, 6 M. & Gr. 935. So, a hiring at “ 21. 28. a week for one year," Robertson y. Jenner, 15 L. T., N. S. 514, Bramwell, B.; or at “ 21. a week and a house," Evans v. Roe, L. R., 7 C. P. 138; is a hiring by the week and not by the year. See also R. v. Droitwich, 3 M. & S. 243. And where there is such a written contract, oral evidence that, at the time it was signed, it was intended to be a hiring for a year, is inadmissible. Evans v. Roe, supra. Where the plaintiff was engaged as a clerk at a yearly salary of 1501., and was paid his wages weekly, and accepted a month's notice as determining his service, and afterwards re-entered the service at a salary of 2501., and was paid weekly; it was held properly left to the jury to say whether the last hiring was on the same terms as the first, and well determined by a month's notice. Fairman v. Oakford, 5 H. & N. 635 ; 29 L. J., Ex. 459. In the case of the master of a ship, the hiring is not for a year certain, and requires reasonable notice to determine it. Creen v. Wright, 1 C. P. D. 591. Questions may arise as to whether the hiring is even a weekly one. See Warburton y. Heyworth, 6 Q. B. D. 1, C. A.
With regard to a menial or domestic servant, there is a common understanding (except where a different custom is shown to prevail), though the contract is for a year, that it may be dissolved by either party on giving a month's warning or a month's wages. Beeston v. Collyer, 4 Bing. 313, per Gaselee, J.; Fawcett v. Cash, 5 B. & Ad. 908; Nowlan v. Ablett, 2 C. M. & R. 54. In such cases, if the master without reasonable cause turn the servant away without notice, the latter would be enabled to recover a month's wages, beyond the arrears ; Robinson v. Hindman, 3 Esp. 235 ; the claim must be for wrongful dismissal, and not for work and labour; Fewings v. Tisdal, 1 Exch. 295; recognizing Smith v. Hayward, 7 Ad. & E. 314, and dissenting from Eardly v. Price, 2 N. R. 333; on this special claim the servant can only recover the month's wages, and not the wages down to the dismissal. Hartley v. Harman, 11 Ad. & E. 798.
The term “menial servant” within this rule includes a head gardener, though living in a separate house in his master's grounds. Nowlan v. Ablett, supra; Johnson v. Blenkinsop, 5 Jur. 870, T. T. 1841, Q. B. So, a huntsman, although hired at yearly wages, with perquisites that cannot be fully realized till the end of the year. Nicoll v. Greaves, 17 C. B., N. S. 27; 33 L. J., C. P. 259. But does not include a governess. Todd v. Kerrich or Kellage, 8 Esch. 151 ; 22 L. J., Ex. 1.
Although a general hiring of an agent at a certain sum per annum, simply, is a hiring for a year, yet a custom to discharge upon notice may be engrafted on such general hiring though the contract be in writing, if the terms are not inconsistent with the custom; and they are not inconsistent where the hiring was at a yearly salary, stipulating for a gratuity at the end of a year on approval. Metzner v. Bolton, 9 Exch. 518; 23 L. J., Ex. 130; Parker v. Ibbetson, 4 C. B., N. S. 346 ; 27 L. J., C. P. 236. The custom must be of some reasonable antiquity and standing, uniform and sufficiently notorious and well understood that people would make their contracts on the supposition that it exists. Foxall v. International Land Credit Co., 16 L. T., N. S. 637, Byles, J. Whether a written contract excludes the custom, is for the judge, and not for the jury, to decide. Parker v. Ibbetson, supra. When, however, the hiring is expressly for a time certain, a custom of the trade for a master or a servant to determine it at any time without notice is inadmissible to control the contract. Peters v. Staveley, 15 L. T., N. S. 275; M. T. 1866, Q. B. In Fairman v. Oakford, ante, p. 495, Pollock, C. B., observed
• that juries in London usually find that clerks are entitled to three months' notice.” 29 L. J., Ex. 460. Accord. Foxall v. International Land Credit Co., supra. In Darke v. Grosvenor Hotel Co., Q. B., T. T., 1865, ex, rel. editoris, the court awarded the secretary of that public company three months' salary in lieu of notice. In the case of the employment of an advertising and canvassing agent, the jury found that a month's notice was sufficient. Hiscox v. Batchellor, 15 L. T., N. S. 543. It was in this case said to make no difference, whether the remuneration is by salary or commission ; S. C. Id. cor. Byles, J. See, however, Rhodes v. Forwood and Ex pte. Maclure, cited post, p. 498. On the question of notice it may be material to consider whether there exist a contract of service between the parties. See on this point, R. v. Negus, L. R., 2 C. C. 34, and cases there cited. See also further, sub tit. Work as agents, post, pp. 563, 564.
It has never been decided whether, on a hiring for a year without any express contract as to notice, if the service continue beyond the first year, either party can determine the contract at the end of the current year without notice, or whether a reasonable notice ought to be given previously. See Beeston v. Collyer, 4 Bing. 309. A contract " for one whole year, and so from year to year so long as the parties should respectively please,” can only be determined at the end of a current year. Williams v. Byrne, 7 Ad. & E. 177; and semble, by reasonable notice; Id. 182. An agreement between master and servant, “to be binding between the parties for twelve months certain from the date, and to continue from time to time until three months' notice be given by either party,” may be determined by three months' notice expiring at the end of the first year. Brown v. Symons, 8 C. B., N. S. 208; 29 L. J., C. P. 251. An agreement" for twelve months certain, after which time either party should be at liberty to terminate the agreement” by three months' notice, may be determined without notice at the end of the twelve months. Langton v. Carleton, L. R., 9 Ex. 57, diss. Kelly, C. B. Sed qucre. An agreement of hiring for six months and “ six months' notice from either side to terminate the agreement,” may be determined at any time after the expiration of the first six months. Keon v. Hart, I. R., 2 C. L. 138, C. P.; Ir. Ex. Ch., I. R. 3 C. L. 388; and see Ryan v. Jenkinson, 25 L.J., Q. B. 11.
Where the master has dispensed with the plaintiff's services before he has entered on the service, and has refused to abide by his contract, the servant may elect to treat it as at an end and bring an action then before the time for its commencement has arrived. Hochster y. De La Tour, 2 E. & B. 678; 22 L. J., Q. B. 455. Accord. Frost v. Knight, L. R., 7 Ex. 111, Ex. Ch. See also Johnstone v. Milling, 16 Q. B. D. 460, C. A. An offer by the plaintiff to serve is unnecessary; readiness and willingness to serve,
which implies ability, is sufficient. Wallis v. Warren, 4 Exch. 361.
If a servant misconduct himself, the master may turn him away without any warning: Spain v. Arnott
, 2 Stark. 256. A refusal to obey a lawful order (as to remain at home at a certain time, or to do a proper day's harvest work, &c.) is a good ground of dismissal; S. C.; Lilley v. Elwin, 11 Q. B. 742; however reasonable or urgent the excuse for the servant's wilful absence may be. Turner v. Mason, 14 M. & W. 112. If a clerk wrongfully claim to be a partner, the master may dismiss him forthwith as clerk. Amor v. Fearon, 9 Ad. & E. 548. So, where a clerk disobeys a direction to apply remittances in a particular way; Smith v. Thompson, 8 C. B. 44 ; or, a traveller neglects immediately to remit sums collected, in accordance with the terms of his engagement; Blenkarn v. Hodges' Distillery Co., 16 L. T., N. S. 608, Byles, J.; or sells his employer's goods (wines) to a brothel-keeper ; ld.; or, where a servant embezzles, though his wages due exceed what he has embezzled. Brown v. Croft, 1 Chitty, Prac. of the Law, 82. So where a servant employed to purchase goods for his master, accepts even on a single occasion a commission from the seller without his master's knowledge. Boston Deep Sea, &c. Co. v. Ansell, 39 Ch. D. 339, C. A. So where a servant is guilty of such misconduct, outside his employment, as is incompatible with a safe performance of his duties, he may be dismissed; as where a confidential clerk of a firm of merchants who had large dealings in securities was in the habit of speculating to an enormous amount in “ differences” on the Stock Exchange, vide post, p. 552. Pearce v. Foster, 17 Q. B. D. 536, C. A. The master is not bound to assign the cause at the time of the dismissal; and where good ground for dismissal existed at the time, it is immaterial whether or not it was the real cause ; Ridgway v. Hungerford Market Co., 3 Ad. & E. 171; or indeed whether the good ground was known then to the master or not till a long time after. Boston Deep Sea, &c. Co. v. Ansell, supra. Where the payment of wages is at the rate of 501. per month, subsequent misconduct is no answer to an action for
wages which has then accrued due, because there was a vested right to each month's wages, when the month had elapsed. Taylor v. Laird, 1 H. & N. 266; 25 L.J., Ex. 329; Button v. Thompson, L. R., 4 C. P. 330. See also Boston Deep Sea, &c. Co. v. Ansell, ante, p. 467. This may, however, be altered by the terms of the hiring, as where the plaintiff was employed on the terms that he should give 14 days' notice, and if he left without notice should forfeit all wages due: the wages were ascertained on each Thursday up to that day, and paid on the following Saturday; the plaintiff worked on Friday and left without notice; held that he forfeited the wages earned up to Thursday as well as those subsequently. Walsh v. Walley, L. R., 9 Q. B. 367. Where a master, having a right to discharge his servant for misconduct, condones the act of misconduct and retains the servant, he cannot afterwards discharge him for the same act. Phillips v. Foxall, L. R., 7 Q. B. 680, per Blackburn, J.
The bankruptcy of the master is not a dissolution of the contract of hiring. Thomas v. Williams, 1 Ad. & E. 685. Dissolution of the partnership of the employers is not necessarily a breach of the contract of the firm to employ the plaintiff ; all events, if the plaintiff entered into the service of the altered firm, this is evidence in proof of a defence of voluntary exoneration from the first contract before breach. Hobson v. Cowley, 27 L. J., Ex. 205. But dissolution of partnership has been held to be a breach of an agreement to teach a business, contained in an agreement of apprenticeship. Couchman v. Sillar, 22 L. T., N. S. 480, E. T. 1870, 0. P.; see also Eaton v. Western, 9 Q. B. D. 636, C. A. If there be an agreement for service between the plaintiff and A. and B., then in partnership, the death of one of the partners puts an end to the contract, though the service was for a time certain ; and no action can be maintained against the survivor for not employing the plaintiff. Tasker v. Shepherd, 6 H. & N. 575; 30 L. J., Ex. 207. But a voluntary parting with the business, is a breach of the contract to employ. Stirling v. Maitland, 5 B. & S. 840 ; 34 L. J., Q. B. 1. See Cook v. Sherwood, 3 F. & F. 729 ; 11 W. R. 595, C. P. E. T. 1863. But an agent or servant paid by commission on the profits of the business carried on, cannot sue his employer for giving up the business before the expiration of the term for which he was engaged; Rhodes v. Forwood, 1 Ap. Ca. 256, D. P.; nor for giving it up without notice. Ex pte. Maclure, L. R., 5 Ch. 737; L. Leith, &c. Shipping Co. v. Ferguson, 13 Sc. C. of Sess. Cases, 1850, p. 51. An order for winding-up a company, where the business is not carried on after the order; MacDowall's case, 32 Ch. D. 366; or for the appointment of a manager and receiver on behalf of debenture holders; Reid v. Explosives Co., 19 Q. B. D. 264, C. A., operates as a discharge of its servants.
In contracts for personal service it is an implied condition that the death of either party shall dissolve the contract. Farrow v. Wilson, L. R., 4 C. P. 744. The plaintiff was hired as a farm bailiff by A. at weekly wages, with a stipulation for 6 months' notice or 6 months' pay: it was held that the contract was dissolved by A.'s death, and that the stipulation as to notice did not apply. Id.
Where an apprenticeship is dissolved by the death of the master during the term, no part of the premium paid is recoverable from his executors. Whincup v. Hughes, L. R., 6 C. P. 78. In Hirst v. Tolson, 2 Mac. & G. 134; 19 L. J., Ch. 441, an articled clerk was allowed to prove against the estate of his master, an attorney, who died during the articles, for the proportionate part of the premium the clerk had paid. Sed quære, for this decision was founded on an erroneous view of the rule at common law; see judgments in Whincup v. Hughes, supra, and it was not followed in