5. Action against an attorney for damage arising from his want of skill or diligence.

Professional men, possessed of a reasonable portion of information or skill, according to the duties they undertake to perform, and exercising what they so possess with reasonable care and diligence in the affairs of their employers, are not held liable for errors in judgment, whether in matters of law or discretion. 6 Clark & Fin. 210.

Counsel may insert in a bill, declaration or plea, unnecessary or impertinent matter, and the court may order it to be struck out with costs, and perhaps order the counsel to pay them. Mitf. Pl. 47. But Lord Kenyon was of opinion, that an action against counsel for such matter could not be supported. Fell v. Brown, Peake's N. P. C. 96. An action will not lie against the barrister in England or the advocate in Scotland. 12 Clark & Fin. 103.

But when, either in England or Scotland, an injury is sustained, which could not have arisen except from the want of reasonable skill and diligence, or the absence of the employment of either, on the part of the attorney, the law holds him liable. Russel v. Palmer, 2 Wils. 325; Hart &c v. Frame &c. 6 Clark & Fin. 210. In this case the chancellor and the house of lords were of opinion, that there was clearly a want of that reasonable degree,-if not of information and skill-at least of care and diligence, which is required to save professional men from the liability to indemnify their employers against the consequences of any error they may commit. It was no defence that they were led into the error by following the example of another professional agent who had adopted the same course, and thereby involved his employers in the same difficulty and exposed himself to the same responsibility. "It was," said Lord Cottenham, "the duty of the appellants to look with their own eyes, and judge with their own understandings; and if, instead of doing so, they have blindly followed the erroneous course taken by another agent, they cannot complain of being made responsible for the consequences of the error into which this false guide led them. Their employers had a right to their diligence, their knowledge and their skill; and whether they had not so much of these qualities as they were bound to have, or having them, neglected to employ them, the law properly makes them liable for the loss which has accrued to their employers."

The attorney was also subjected to liability in Ireson v. Pearman, 3 Barn. & Cress. 799, 10 Eng. Com. Law Rep. 232; Donaldson v. Haldane, 7 Clark & Fin. 762; and Hunter v. Caldwell, 10 Adol. & El. N. S. 69, 59 Eng. Com. Law Rep. 57. Still it is admitted he is liable merely in cases where he has shewn a want of reasonable skill or where he has been guilty of gross negligence. Purves v. Landell, 12 Clark & Fin. 107; Pitt v. Yalden, 4 Burr. 2060; Baikie v. Chandless, 3 Camp. 17; Lewis v. Collard, 14 Com. Bench (5 J. Scott) 208; Parker v. Rolls, 14 Id. 691, 78 Eng. Com. Law Rep. 208, 691, 28 Eng. Law & Eq. 424.

In Massachusetts, whenever an attorney disobeys the lawful instructions of his client, and a loss ensues, the attorney is responsible for that loss. Gilbert v. Williams, 8 Mass. 57. If a note be put in the hands of an attorney at law to enforce payment by suit, and he fail to bring and prosecute the suit with reasonable diligence, it is held in Pennsylvania that he is liable to the creditor for so much of the debt which might have been recovered by such suit as the debtor has since become unable to pay; if the jury should be of opinion a suit against the debtor would have been unavailing, and that nothing could have been recovered by means of it, their verdict, though it ought still to be for the plaintiff, will be only for nominal damages. Cox v. Livingston, 2 W. & S. 103.

6. Action against a farrier or surgeon for acting unskilfully.

It is implied in the undertaking of a farrier who undertakes to cure my horse that he must have common skill at least in his business. And it is necessary for a surgeon who undertakes to perform surgical operations to have at least an ordinary degree of skill, in the same manner as it is necessary for every other man to have it in the course of his employment. A surgeon who should, without the ordinary qualification of skill, rashly adventure upon the exercise of a profession, to the injury of a patient, would be justly responsible in damages. Seare v. Prentice, 8 East 349; Mertz v. Detweiler, 8 W. & S. 376.

Nor is it always enough that the surgeon has skill. Men very skilful in their profession have sometimes (perhaps for the sake of trying experiments), acted out of the common way to the great injury of their patient; and heavy damages have been assessed therefor. In one case of this sort there was a verdict for £ 500 against an apothecary and surgeon, the latter of whom had been for 20 years the first surgeon in

St. Bartholomew's hospital, London. The judgment for the plaintiff was on the ground that the action of the defendants was rash-that acting rashly they acted unskilfully, contrary to the known rule and usage of surgeons. Slater v. Baker &c. 2 Wils. 359.

CHAPTER XXXVII.

ACTION FOR SERVICES RENDERED, WORK DONE OR MATERIALS FURNISHED.

1. For services as attorney, physician or arbitrator.

The rule as to fees of an attorney has already been stated, in treating of the time at which he has a right to make a demand upon his client. Ante, 1 Rob. Prac. 447-451. In England the fees of physicians as well as barristers are treated as a present; not as payment or hire for labour. Turner v. Philipps, Peake's N. P. Cas. 122.

When it was argued that the passage in Tacitus (Ann. l. 11) cited in 3 Bl. Com. 28, 9, takes for granted that physicians were entitled to remuneration, Lord Kenyon said (in 1791) he remembered a learned controversy some years before, as to what description of persons were intended by the medici at Rome, and it seemed to have been clearly established by Dr. Mead that by those were not meant physicians but an inferior degree amongst the professors of that art, such as answer rather to the description of surgeons in England. But at all events (he added) "it has been understood in this country that the fees of a physician are honorary and not demandable of right." It never was yet heard of (he said) that it was necessary to take a receipt upon such an occasion. Chorley v. Bolcot, 4 T. R. 317. Though the action be for work and labour as a surgeon, the defence may be set up that the plaintiff was a physician. Lord Ellenborough said, "if a person passes himself off as a physician, he must take the character cum onere. When he brings an action for visits paid by him as a physician, I will give him credit for being so and tell him he must trust to the honour of his patients. Whether the plaintiff had or had not a diploma when he attended the defendant is immaterial. Whatever he was, if he, at that time, wrote pres

criptions and added M. D. to his name, he must be nonsuited." Lipscombe v. Holmes, 2 Camp. 441.

All, however, that these cases decide is that a contract cannot be implied from the mere fact of a physician's attendance on a patient. A physician as well as a barrister may enter into a contract for the payment of his fees and enforce the contract. Veitch v. Russel, 1 Car. & Marsh. 201, 41 Eng. Com. Law Rep. 362. And an action will lie on an express promise though the consideration be precedent to the promise. If one come to a serjeant at law for counsel, and the serjeant advise him, and afterwards the client in consideration thereof promise to pay him £ 20-or if a physician, my friend, hearing that my son is sick, go to him in my absence and help and cure him, and I being informed thereof promise him in consideration thereof, to give him £ 20-an action will (in either of these cases) lie for the money. Marsh v. Rainsford, 2

Leon. 111.

Although in England physicians are placed on the same footing as counsel, in respect to the disability to sue for fees, the case of Mooney v. Lloyd, 5 S. & R. 416, cited ante, 1 Rob. Prac. 449, recognizes that as regards physicians, the law is held differently in Pennsylvania; this difference is stated in that case to be founded on practice and act of assembly.

In Virginia there was much legislation in regard to physicians in the colonial times. Their right to some reward was recognized at an early period. 1 Hen. Stat. 316, 450; 2 Id. 26, 109, 110; 3 Id. 103, 4, 379. The act of August 1736, recites that "the practice of physic in this colony is most commonly taken up and followed by surgeons, apothecaries or such as have only served apprenticeships to those trades, who often prove very unskilful in the art of a physician, and yet do demand excessive fees, and exact unreasonable prices for the medicines which they administer, and do, too often, for the sake of making up long and expensive bills, load their patients with greater quantities thereof than are necessary or useful, concealing all their compositions as well to prevent the discovery of their practice as of the true value of what they administer." And then it enacts that no practiser in physic shall recover for visiting any sick person more than certain rates. It prescribes what shall be the rates for surgeons and apothecaries who have served an apprenticeship to those trades; and prescribes other and higher rates for those persons who have studied physic in any university and taken any degree therein. It has also a provision "to the end the true value of the medicines administered by any practiser in physic may be better known and judged of." 4 Hen. Stat. VOL. II.-26

509-10. This act, by its terms, continued in force for two years, and thence to the end of the next session of assembly.

At a later period-about 50 years since-the legislature of New York undertook "to regulate the practice of physic and surgery," and made it penal to do either without being duly licensed for the purpose. 3 Greenleaf 417; 1 K. & R. 449. These statutes did not, in terms, declare that no compensation should be recovered by an unlicensed practitioner, but they did what was equivalent to such an enactment, for they subjected him to a penalty for the unauthorized and illegal act. Subsequent statutes expressly declared that a person who should, after a specified day, commence practice without being duly licensed, should "forever thereafter be disqualified from collecting any debt or debts incurred by such practice." 4 Web. 538, § 7; 2 R. L. of 1813, § 12; 1 R. S. of 1830, p. 455, § 12. This section also made the unauthorized practice of physic and surgery "a misdemeanour, punishable by fine or imprisonment, or both." But this provision was shortlived. It was repealed by the act of April 1830, (p. 141,) which made the offence penal, not criminal, and did not debar a person "from using or applying, for the benefit of any sick person, any roots, barks or herbs the growth or produce of the United States." The exemption by this act from penal provisions, was by the act of 1834, p. 72, confined to such persons as should, without fee or reward use or apply roots, barks or herbs the growth or produce of the United States. But the act of 1834 was repealed in 1835, p. 354. And the law was thrown back to the revised laws and the act of April 1830. Under these it was held that a botanic physician though he used only vegetable remedies of domestic origin could not compel payment for his services as an unlicensed physician. Bailey v. Mogg, 4 Denio 60. In 1844 (p. 406,) the legislature swept away all penal laws against the unlicensed practice of physic and surgery, and every enactment which prohibited any person from recovering a compensation for services as a physician or surgeon, whether licensed or not. Thus, says Beardsley, J., the legislature made every man a doctor, and nostrums of every description and admixture can now be prescribed and payment therefor exacted by authority of law. S. C. 62.

In England it has sometimes been insisted that the remuneration of an arbitrator, like that of a physician or barrister, is left to the option of his employers, and cannot be enforced. 3 Adol. & El. N. S. 466, 43 Eng. Com. Law Rep. 822. Lord Kenyon thought the arbitrator not entitled to recover anything unless an express promise be proved. Virany v. Warne,