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error in judgment upon points of new occurrence, or of nice or doubtful construction, or such as are usually intrusted to counsel. His liability must, however, depend upon the nature and description of the mistake or want of skill which has been shown, and he cannot shift from himself such responsibility by consulting counsel where the law would presume him to have the knowledge himself. Godefroy v. Dalton, 6 Bing. 467-9, per cur. Lee v. Walker, L. R., 7 C. P. 121.

See

A solicitor will be liable to an action, at least for nominal damages, for compromising an action against the express directions of his client, though the compromise be really for the benefit of the client; Butler v. Knight, L. R., 2 Ex. 109; and, under such circumstances, it is no defence that the solicitor acted under the advice of counsel retained to conduct the cause; Fray v. Voules, 1 E. &. E. 839; 28 L. J., Q. B. 232. A solicitor retained in an action has no implied authority after judgment in favour of his client, to agree on his behalf to postpone execution. Lovegrove v. White, L. R., 6 C. P. 440. And, in accordance with the rule of Equity, it seems doubtful whether a solicitor has now any authority to compromise an action without the consent of his client. Vide ante, p. 262; and confer, Grant v. Holland, 3 C. P. D. 180.

Where the money of a client comes into the hands of a partner in a firm of solicitors in the ordinary course of their business as solicitors, the firm are liable to make good any loss occasioned by the partner's defalcation. St. Aubyn v. Smart, L. R., 5 Eq. 183; L. R., 3 Ch. 646; Dundonald, El. of, v. Masterman, L. R., 7 Eq. 504. So in the case of negotiable bonds of the client; Cleather v. Twisden, 24 Ch. D. 731. A sum of money received to be invested on a specific mortgage falls within this rule; Harman v. Johnson, 2 E. & B. 61 ; 22 L. J., Q. B. 297; but, not a sum left to be invested on mortgage generally, for this is the business of a scrivener, and does not fall within the province of a solicitor merely as such. S. C. Plumer v. Gregory, L. R., 18 Eq. 621. Nor, are the firm liable for money received by a partner qua trustee. Dundonald, El. of, v. Masterman, supra.

A solicitor when making a special agreement under the Attorneys and Solicitors' Act, 1870 (ante, p. 451), with reference to his fees, cannot stipulate that he shall not be liable for negligence, as such condition is by sect. 7 wholly void.

Damages.] This action is maintainable, though the damages be only nominal; Godefroy v. Jay, 7 Bing. 413, adopting the rule in Marzetti v. Williams, 1 B. & Ad. 415; Fray v. Voules, supra; and where the plaintiff shows that the solicitor has been guilty of negligence, as by letting judgment go by default in an action which he was retained to defend for the plaintiff, it is for the defendant (the solicitor) to show that the plaintiff had no defence in that action, and not for the plaintiff to begin by showing he had a good defence, and so had been damaged by the judgment by default. Godefroy v. Jay, supra. See also Whiteman v. Hawkins, 4 C. P. D. 13. As to damages where the solicitor has compromised the action contrary to his client's instructions; Butler v. Knight, L. R., supra; and where he has improperly sold his client's land under a power of sale; Cockburn v. Edwards, 16 Ch. D. 393.

Defence.

Statute of Limitations.] As the action can be maintained without showing special damage (supra), it follows that the Statute of Limitations runs from the breach of duty complained of; Howell v. Young, 5 B. & C. 259; and not

Action by Surgeons or other Medical Practitioners.

459

from the first discovery of the default; S. C., Short v. M'Carthy, 3 B. & A. 626; nor, from the occurrence of the consequential damage; S. CC.; Smith v. For, 6 Hare, 386; nor, is the remedy kept alive by the defendant's admission of his responsibility within six years; Short v. M'Carthy, supra.

ACTION BY SURGEONS OR OTHER MEDICAL PRACTITIONERS.

The following are the statutes which relate to the qualifications of medical practitioners, and their capacity to sue.

Under the Apothecaries Act (55 Geo. 3, c. 194), s. 21, no apothecary shall be allowed to recover any charges claimed by him in a court of law, unless he shall prove at the trial, that he has obtained a certificate from the Court of Examiners of the Apothecaries Company.

The Medical Act, 1858 (21 & 22 Vict. c. 90, amended in a few particulars by the 22 Vict. c. 21, and the 23 Vict. c. 7), provides for the formation of a general "medical register" of all persons qualified to practise in medicine or surgery; and (sect. 31) a person so registered is entitled to practise medicine or surgery, or both, according to his qualifications, in any part of the Queen's dominions, and to demand and recover in any court of law, with "full costs of suit," reasonable charges for professional aid, advice and visits, and the cost of any medicines or other medical or surgical appliances rendered or supplied to patients. By sect. 32"no person shall be entitled to recover any charge in any court of law for any medical or surgical advice, attendance, or for the performance of any operation, or for any medicine which he shall have both prescribed and supplied, unless he shall prove upon the trial that he is registered under this act."

By sect. 27, the registrar of the general council, formed under the act, shall yearly cause to be printed and published, under the direction of the council, a register of the names and residences of all persons entitled to be registered under it and appearing in it on the 1st January in each year, with their medical titles, diplomas, and qualifications, &c. ; and a copy of this "medical register" for the time being purporting to be so printed and published shall be evidence in all courts, and before all justices and others, that the persons therein specified are registered according to the act; and the absence of the name of any person from such a copy shall be evidence, until the contrary appear, that he is not registered. Provided that in the case of a name not in the copy of the register, 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, shall be evidence of registration. As to the form of register, see Pedgrift v. Chevallier, 8 C. B., N. S. 240; 29 L. J., M. C. 225.

By sect. 55, the act does not extend to prejudice or affect the lawful occupation, trade, or business of chemist and druggist, and dentist, so far as the same extend to selling, compounding, or dispensing medicines. But if a chemist prescribe he must show registration, as sect. 55 exempts chemists only so far as selling, compounding, and dispensing medicine. See Apothecaries Co. v. Greenough, 1 Q. B. 799.

The language of the Medical Act, 1858, s. 32, resembles that of the Apothecaries Act, 55 Geo. 3, c. 194, s. 21 (supra), under which act many of the following cases were decided. Proof of qualification is a condition precedent to recovery, but the want of qualification must now be specially

pleaded. See Rules, 1883, O. xix., rr. 15, 20, ante, pp. 283, 284. The provisions above as to proof of registration are probably only cumulative, and plaintiff may prove it by production of a “local register," or, ut semb., by an examined copy, or by a copy certified as in the case of public books under 14 & 15 Vict. c. 99, s. 14. See ante, pp. 92, 96. The qualification of an apothecary may be proved by certificate under 14 & 15 Vict. c. 99, s. 8, ante, p. 95. The identity of the plaintiff and the person named in the register will be presumed. Simpson v. Dismore, 9 M. & W. 47. The register only shows registration down to the preceding January, but the plaintiff's continuance on the register will probably be presumed, in conformity with the ordinary presumption of things, remaining in statu quo; ante, p. 33. To entitle the plaintiff to recover for services and medicines supplied, he must have had the necessary qualification, and be registered in respect thereof, at the time the services were rendered and the medicines supplied. Leman v. Houseley, L. R., 10 Q. B. 66; dissenting from Turner v. Reynall, 14 C. B., N. S. 328; 32 L. J., C. P. 164; in which case the provisions of the Apothecaries Act, s. 21, ante, p. 459, seem to have been overlooked; see per Blackburn, J., L. R., 10 Q. B. 69. If two medical practitioners are in partnership, and one is duly registered, but the other not, they can jointly maintain an action for medical services by the firm; per Erle, C. J., and Byles, J., in Turner v. Reynall, supra.

Sect. 31 only enables persons registered to practise medicine or surgery "according to their qualifications; hence, where the plaintiff's qualification is to practise surgery only, he cannot recover for attendance in a medical case, for he is not within the section, and is prohibited from recovering by the Apothecaries Act, s. 21 (ante, p. 459). Allison v. Haydon, 4 Bing. 619; Leman v. Fletcher, L. R., 8 Q. B. 319. He might, however, recover for medicine administered as ancillary to a surgical case; ride S. CC. See also on this section, per Bramwell, B., Ellis v. Kelly, 6 H. & N. 226; better, 30 L. J., M. C. 35, 37. Sect. 32 is not confined in its operation to actions against the patients themselves, but extends to a case where a third person has guaranteed payment for medical attendance, etc., or is primarily liable for it, as supplied on his credit. So, a medical practitioner, engaged by another to attend his patients in his absence, cannot recover the price of his services without proof of registration; De la Rosa v. Prieto, 16 C. B., N. S. 578; 33 L. J., C. P. 262; but semble, that an unregistered assistant may recover his salary from a registered practitioner; per cur. S. C. The act applies to medical attendance given on board a foreign man-of-war in an English 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.

Action for Wages and Wrongful Dismissal.

461

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 has received no benefit, 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 cure. In the case of a surgeon, if an operation which might have been useful has 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 an "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, 1858, s. 31, (ante, p. 460), 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. But, by that section any college of physicians in the United Kingdom, may make a bye-law that their fellows or members 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 a bye-law that no Fellow of the College shall be entitled to sue; 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, post, p. 462. The fact that the wages are payable monthly makes no difference. And if, during the year, the master dismisses 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. 465. 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 is discharged for good cause during the year, either by his master or a magistrate's order. Lilley v. Elwin, ante, p. 461; Ridgway v. Hungerford 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. 2s. a week for one year," Robertson v. 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 250l., 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 v. 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 turns 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; recognising Smith v. Hayward, 7 Ad. & E. 544, 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 realised 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 Exch. 151; 22 L. J., Ex. 1.

Although a general hiring of an agent at a certain sum per annum,

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