endanger life, is punishable either by fine or six months' imprisonment.1

Negligence of physicians and surgeons.-The same care of the body, which is so great an object of the law, often leads individuals to employ physicians and surgeons to cure its wounds and ailments; and though this is matter of contract, yet, inasmuch as it is more important for each to know what remedy is open to him for unskilful treatment and consequent pain and injury than to seek a remedy on the contract, some notice is here required of these cases. The universal rule relating to such matters is, that every person, who enters a learned profession, undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is a solicitor, that at all events he shall gain the cause; nor does a surgeon impliedly undertake to use the highest possible degree of skill; but he undertakes to bring a fair and competent degree of skill to bear on the case.2 If therefore one suffers pain or death from the negligence of those skilled operators, the main question involved will be, whether the treatment showed ordinary professional skill, and as to this the opinion of experts is usually brought to bear. In this country the legislature has come to the assistance of the common law by requiring all who practice surgery and physic, at least as a profession, to be registered as such, and this again is only possible after a degree of knowledge and education have been attained, which is the best guarantee against danger to human life. False pretenders to this qualification are liable to a penalty.* Nevertheless, as it may still happen that one who has no such qualification may undertake and contract to effect a cure, and possibly injure the body, the law also requires that each adventurer as well as a licensed medical man shall possess competent knowledge, and each is liable to an action for negligence if he do not bring such knowledge to bear.5

1 38 & 39 Vic. c. 17, § 79. 2 Lanphier v Phipos, 8 C. & P. 479. 321 & 22 Vic. c. 90; 22 Vic. c. 21; 22 & 23 Vic. cc. 7, 66. 4 21 & 22 Vic. c. 96, § 40.

In ancient Egypt physicians were paid by the state, and they had fixed rules for treating diseases and administering physic; and if they adhered to the letter of the rule they were safe, but if they

Negligence in selling poisons.—The natural right of every man to carry on any kind of business, and the inherent tendency of all men to carry on that business in the way most profitable to himself, regardless of the rights and risks of others, has likewise induced the legislature to interfere and amend the common law as to the right of selling and buying poisons. While the seller and buyer is each intent on what he is doing, and thinks little or nothing of how innocent third parties may become affected by the article bought and sold, certain precautions as to the sale are enforced in order that competent persons may alone sell such articles, and if sold, that the origin of any mischief may be more easily discovered. Hence statutes enforce restrictions of this kind. The ultimate object of these statutes is to prevent danger to life, but as the nature of the restrictions belongs more properly to the business of chemists, druggists, and medical men, they fall properly to be noticed under that division of the law entitled the "Security of Contract."1

Negligence in setting spring-guns and engines. Another head of negligence which once caused pain and injury to the body, more frequently than it now does, arose from the practice of owners of land using spring-guns and deadly engines as a means of protection against trespassers. This practice took its rise in the selfish and engrossing view, that property must and may be lawfully defended at all hazards to life and limb; and though the owner did not intend to wound or kill any one, but only to cause terror to intending trepassers, and so to protect his interest, yet the exclusive attention to this one object, regardless of all consequences to others, is only another illustration of the same kind of negligence as that which has been displayed in the cases already enumerated, though in this instance such

deviated, and the patient died, they were punished.—Diod. Sic. b. 1. And by the law of Zoroaster, a physician was ordered to commence practice on the infidels, and if three patients died successively, he was deemed unfit to practise on the faithful, and was cut in pieces. But if he succeeded thrice, then he was encouraged, and deemed qualified to practise on the faithful.-Zend. Av. tit. 1, p. 2.

1 Arsenic Act, 14 & 15 Vic. c. 12; Pharmacy Acts, 31 & 32 Vic. c. 121; 32 & 33 Vic. c. 117; Sale of Food and Drugs Act, 38 & 39 Vic.

negligence was more likely to be fatal in certain contingencies.

The legality of this practice was much discussed half a century ago, and much doubt existed and still exists as to what was the precise limit of a landowner's powers at common law to protect his rights of property against all comers, without incurring the liability of an action or an indictment. Sometimes owners put up a notice on the boundary of their estate notifying that spring-guns were set in the fields and woods, and that trespassers must beware; and sometimes no notice was put up at all. But whether or not notice was given, it was found that trespassers entered the forbidden ground, and were dangerously wounded and sometimes killed. In one case, in 1820, where notice had been put up, stating that these engines were set in the plantation-there being in reality ten spring-guns in a wood of sixty acres-and a trespasser gathering nuts had been wounded, the court held that no action was maintainable by reason of his having read and known of the notice, for he had only brought the mischief on himself.1 In another case, in 1828, where no notice was put up, it was held that an action was maintainable; and hence when a lad went into his neighbour's garden to recover a favourite peahen that had strayed, and was wounded by a spring-gun set there, the court held that he was entitled to damages, because the owner ought to have given notice of such a dangerous engine being there.2

The doctrine of the common law on this subject justified the placing of spring-guns on this ground, that as the owner could not always be watching his fields in person, and so proportion force to force in extruding trespassers, he could only do so effectually in his absence by placing an instrument, which by the joint effect of terror and physical pain or death (the latter confessedly in excess of the requirements), would put a stop to the trespasses. The basis of all this seemed to be, that property, and not human life, must be protected at all hazards. The common law obviously could say nothing to extenuate the flagrant injustice of occasionally taking away the life of innocent persons without cause, and even of trespassers without adequate cause. And as the common law thus seemed to Ilott v Wilkes, 3 B. & Ald. 304. 2 Bird v Holbrook, 4 Bing. 628.

extenuate a species of impersonal assassination, at last the legislature, with higher views of the relative importance of life and property, had to intervene to cover over this conspicuous defect.1

When the law as to spring-guns was about to be altered in 1825, the Lord Chancellor said that on every occasion that this question had come before courts of law, the judges had been about equally divided. Lord Ellenborough, C. J., opposing the bill to render it illegal to set spring-guns, said the gardens near London principally owed their security to the engines that were set in them, and that gardeners had no other means of protecting them.2 After much discussion a statute passed, which drew a distinction between dwelling-houses on the one hand, and gardens, fields, and woods on the other.3 The law now is, that who

1 The Burgundians had laws as to this subject, but took more care of the public, for they compelled a man who set spring-bows for killing wild beasts, under pain of answering for all damage, to give public notice that they were set, and to designate the place by certain marks.-Leg. Burg. tit. 46. But the English landowner claimed the excellence and potency of his device to consist in this, that the exact site of the engine was purposely concealed, and so that trespassers might be deterred from setting foot in any part of the territory.

The legislature, for similar reasons, has compelled owners of abandoned mines to fence the shafts.-See ante, p. 265.

An able legislator, discussing this subject in Parliament, said in 1825, "It was not expedient that those persons, in whom the possession of the soil was vested by conventional laws, should render the earth, which was given to mankind in general as an abiding place, unfit for that main purpose. He must not deal with the portion of land which fell to his lot, so as to render it an infernal region, within which he might usurp the power of inflicting death on all comers. .. What would be the condition of the country if every hollow contained a man-trap and every bush a spring-gun? The earth would become a hell, and mankind would be divided into devils and victims. A legislature was bound thus to look at the general consequences of any practice submitted to its review."-Per C. Tennyson, M.P., 13 Parl. Deb. (2nd) 1264.

12 Parl. Deb. (2nd) 1020; 17 Id. 267.

3 An ingenious rural divine in those days, taking advantage of the popular terror, put up a notice on his garden wall that a polyphloisboio was set there. This caused the wondering rustics to stare, to pause, meditate, and feel alarmed at the infallible powers of this unknown engine; and it is said they all ended by carefully abstaining from trespassing in that garden.—13 Parl. Deb. (2nd) 1258.

soever shall set or place, or cause to be set or placed, any spring-gun, man-trap, or other engine calculated to destroy human life or inflict grievous bodily harm, with the intent that the same, or whereby the same may destroy or inflict grievous bodily harm, upon a trespasser or other person coming in contact therewith, shall be guilty of a misdemeanour, and liable to penal servitude for five years, or imprisonment for two years with or without hard labour. To wilfully allow such traps, &c., to remain on his lands is the same as to put them there in the first instance. But there is nothing illegal in such gins or traps as are usually set to destroy vermin. And it is not unlawful even to set spring-guns, &c., from sunset to sunrise for the protection of a dwelling-house.1

Conclusion of account of bodily injuries from negligence.— We have now noticed all the leading heads of negligence whereby injury, pain, and death are caused to the body, not intentionally, but in circumstances under which the law nevertheless declares it culpable in parties not to take more precaution against interfering with the safety of others. Too exclusive and engrossing pursuit of one's own business and selfish interests is the cause of such injuries, and they are properly corrected by the law. A suitable

compensation is and ought to be imposed for such acts of inattention and thoughtlessness as regards the interests of others. We have next to consider another class of injuries, produced, not indeed without intention, but with intention, yet without any set malice and wickedness of purpose, namely, such assaults as are caused mostly by heat of blood, and which, through irritating at the moment, are soon forgotten.

1 24 & 25 Vic. c. 100, § 31; 27 & 28 Vic. c. 47.