And be it further enacted, That the said treasurer shall, and is hereby required to pay to each of the commissioners for every time they shall, in obedience to this act, or any requisition therein contained, visit and inspect any such licensed house or place, as aforesaid, within the limits aforesaid, the sum of one guinea; and shall also pay and discharge all such reasonable expenses of the said commissioners as they shall, from time to time, incur in the execution of this act; and the said treasurer is hereby required, from time to time, to keep an exact and true account of all monies by him received and disbursed in relation to this act, and shall enter such account in a book to be kept for that purpose; which book shall be lodged in the box or chest where the register of the proceedings of the said commissioners is directed to be kept, as aforesaid: which accounts shall be produced to the president of the said college, when required by the said president and elects, to be examined and settled by them; and if, upon such examination, the said accounts shall appear to be just and reasonable, the same shall be allowed and signed by the said president, and at least four of the elects, and shall be by the said president reported, together with the other accounts, at the next General Meeting of the said college; and the said account, being so allowed, signed, and reported, shall be a full discharge to the said treasurer for so much money as shall in such account appear to have been disbursed by him, on account of the execution of this act.

And, in order that such houses or places for the reception of lunaticks as are not situated within the limits aforesaid may be put under some regulation, be it further enacted, That no house, which is not within the said city of London, or within seven miles of the same, or within the said county of Middlesex, shall be kept for the reception of more than one lunatick, unless such house or place shall be licensed by the Justices of the Peace, at some Quarter Sessions of the Peace to be holden for the county or place wherein such house or place shall be situated.

And be it further enacted, That the Justices of the Peace, at any General Quarter Sessions of the Peace, to be holden for any such County or Place, are hereby authorised and required to grant Licenses to such person and persons as shall apply for that purpose, such person or persons paying for each License the sums following; (that is to say), for each and every house, wherein there shall be kept any number of lunaticks, not exceeding ten, the sum of Ten Pounds, and no more; and for each and every house, wherein there shall be kept above the number of ten lunaticks, the sum of Fifteen Pounds, and no more; and that no one License shall authorise any person or persons to keep more houses than one for the reception of lunaticks, nor shall any such License be granted for any longer term than for one year; and the said Justices shall, at the time of granting such Licenses as aforesaid, nominate and appoint two Justices of the Peace for the said County, and also one Physician, to visit and inspect all such houses as shall be licensed by such Justices as aforesaid; and the said Justices and Physicians, so nominated and appointed, or any two of them, whereof the Physician to be one, may, and are hereby authorised and impowered to visit, in the day-time, every house so licensed, within the County where such house or place shall be so licensed, as often as they shall think fit.

And be it further enacted, That the said Justices and Physicians, so nominated, or such of them as shall visit any licensed house as aforesaid, may, at every visitation, if they think necessary, make, or cause to be made, minutes, in writing, of the state and condition of every house which they shall visit, as to the care of the patients therein, and all such other particulars as they shall think deserve their notice, together with their observations thereupon; all which minutes shall be entered, by way of report, in a Register to be kept for that purpose, by the Clerk of the Peace for the County where such house or houses shall be licensed as aforesaid, a copy whereof shall, from time to time, be sent by the said Clerk of the Peace to the Secretary to the said Commissioners, to be by him inserted in a separate Register; which Register shall be kept in the same box, and in the same manner, as the Register belonging to the said Commissioners is herein-before directed to be kept; and the said Clerk of the Peace shall be paid such sum and sums of money for his trouble in the execution of this Act as the said Justices shall order and direct; and all money to be paid for such Licenses as shall be granted by the said Justices of the Peace, as aforesaid, shall be paid to the Clerk of the Peace, as aforesaid, who shall keep an account thereof, in a book or books to be kept for that purpose, and shall account for the same to the said Justices, as often as he shall be required so to do; and all expenses attending the execution of this Act, (except within the cities of London and Westminster, and within seven miles thereof, and also except within the said County of Middlesex), shall be defrayed out of such money as aforesaid, in such manner as the said Justices shall, from time to time, within their respective Counties, order and direct.

And be it further enacted, That at such General Quarter Session, when such Justices and Physician shall be appointed as aforesaid, the Clerk of the Peace shall take the like Oath as is appointed by this Act to be taken by the Secretary of the Commissioners.

And be it further enacted, That in case the keeper of any house or place for the reception of lunaticks, not being within the said city of London or Westminster, or within seven miles of the same, or within the said County of Middlesex, shall, in the day-time, refuse the said Justices and Physician, on such visitation, admittance, at any time or times, into such house or place as aforesaid, the master or keeper of such house or place shall, for such offence, forfeit his License.

And be it further enacted by the Authority aforesaid, That the keeper of any house or place for the reception of lunaticks, not being within the said city of London or Westminster, or within seven miles of the same, or within the said County of Middlesex, shall, and is hereby required, to give such notice, as aforesaid, of the receipt of every such lunatick (except such pauper lunaticks as shall happen to be sent there by parish officers) to the Secretary to the Commissioners, at the College of Physicians aforesaid, within the space of fourteen days from the time of such lunatick’s being received into any such house or place; and every keeper of any such licensed house or place, who shall admit, harbour, entertain, or confine, any person as a lunatick, without having an order in writing, under the hand and seal of some Physician, Surgeon, or Apothecary, that such person is proper to be received into such house or place as a lunatick, or shall receive any lunatick into any such house or place, having such order, and shall not give notice thereof to the Secretary of the said Commissioners, within the time, and in the manner aforesaid, shall forfeit and pay the sum of One hundred pounds.

And be it further enacted, That no such License shall be granted as aforesaid, either by the said Commissioners or Justices of the Peace, as aforesaid, unless upon granting such License, the person to whom such License is granted shall enter into recognizance to the king’s Majesty, his heirs and successors, in the sum of One hundred pounds, with two sufficient securities, each in the sum of Fifty pounds, or one sufficient security in the sum of One hundred pounds, under the usual conditions, for the good behaviour of such person during the time for which such License shall be granted.

And be it further enacted by the Authority aforesaid, That the Lord High Chancellor of Great Britain, or Lord Keeper, or the Commissioners for the Custody of the Great Seal, or the Lord Chief Justice of the Court of King’s Bench, or the Lord Chief Justice of the Court of Common Pleas, for the time being, may, at any time or times, by any written order, directed to the Commissioners appointed by this Act, or to the Justices of the Peace and Physician, appointed Visitors, at any General Quarter Session, require the said Commissioners, or any three or more of them, or the said Visitors, or any two of them, to visit or inspect any house or houses so licensed; and also to make a report to him or them, touching such matters as they shall, in such orders, be directed to inquire into, or as they shall think deserving his or their Lordships notice; and the said Lord High Chancellor, or Lord Keeper, or Commissioners for the Custody of the Great Seal, or Lord Chief Justice of the Court of King’s Bench, or the Lord Chief Justice of the Court of Common Pleas, may also, at any time or times, by a like order, send for, and inspect the Register or Registers so to be kept as aforesaid; and may summon and examine all or any of the persons concerned in the execution of this Act, as often as shall be thought necessary and proper; and in case they, or any of them, shall not obey all such orders as aforesaid, within two days after the receipt of the same, and shall not shew sufficient cause to the contrary, every person, so offending, shall be deemed guilty of a contempt of the Court of Chancery, Court of King’s Bench, or Court of Common Pleas, as the case may be.

Provided always, and it is hereby declared, That nothing in this Act contained shall extend, or be construed to extend, to any of the publick hospitals within this kingdom.

And whereas it is not intended by this Act to give the keepers of any house or houses, so to be licensed as aforesaid, or any other person concerned in confining any of his Majesty’s subjects therein, any new justification from their being able to prove that the persons so confined have been sent there by such direction and advice as are required by this Act; be it therefore declared and enacted, That in all proceedings that shall be had under His Majesty’s Writ of Habeas Corpus, and in all indictments, informations, and actions, that shall be preferred and brought against any person or persons, for confining or ill-treating any of His Majesty’s subjects, in any of the said houses, the parties complained of shall be obliged to justify their proceedings according to the course of the common law, in the same manner as if this Act had not been made.

And be it further enacted by the Authority aforesaid, That all penalties and forfeitures which shall be incurred within the said cities of London or Westminster, or within seven miles of the same, or within the said County of Middlesex, for offences against this Act, shall and may be sued for and recovered in any of the Courts of Record at Westminster, by Action of Debt, Bill, Plaint, or Information, by the President of the said College for the time being, in the name of the Treasurer belonging to the said College, at any time within six calendar months after the offence committed; and all such penalties and forfeitures, when recovered, shall and are hereby directed to be paid to the said Treasurer; and shall be applied (except such penalties and forfeitures as are otherwise directed to be applied by this Act) in manner following; (that is to say), one moiety of all such penalties and forfeitures shall go to the informer, and the other moiety towards defraying the expenses attending the execution of this Act: And all penalties and forfeitures which shall be incurred for offences against this Act, not within the said cities of London or Westminster, or within seven miles of the same, or within the said County of Middlesex, shall and may be sued for and recovered by Action of Debt, Bill, Plaint, or Information, by and in the name of the Clerk of the Peace for the County where any such offence shall be committed; and all such penalties and forfeitures, when recovered, shall be applied, one moiety to the informer, and the other moiety for defraying the expenses attending the execution of this Act, within such County.

And be it further enacted, That if any Action or Suit shall be commenced or brought against any person or persons, for any thing done in pursuance of this Act, the same shall be commenced within six calendar months next after the fact committed; and shall be laid or brought in the county, city, or place, where the cause of Action shall have arisen, and not elsewhere; and the defendant or defendants, in every such Action or Suit, shall and may, at his election, plead specially, or the general issue, Not Guilty; and give this Act, and the special matter, in evidence, at any trial to be had thereupon, and that the same was done in pursuance and by the authority of this Act: And if the same shall appear to be so done, or that such Action or Suit shall be brought in any other county, city, or place, or shall not have been commenced within the time before limited for bringing the same; that then the jury shall find a verdict for the defendant or defendants; and, upon a verdict being so found, or if the plaintiff or plaintiffs shall be nonsuited, or discontinue his, her, or their Action or Suit, after the defendant or defendants shall have appeared; or if, upon demurrer, judgment shall be given against the plaintiff or plaintiffs, then the defendant or defendants shall recover treble costs, and have such remedy for recovering the same as any defendant or defendants hath or have in any other cases by law.

And be it further enacted, That this Act shall be deemed and taken to be a Public Act; and be judicially taken notice of as such, by all Judges, Justices, and other persons whomsoever, without specially pleading the same.

And be it further enacted by the Authority aforesaid, That this Act shall continue in force for the term of Five Years, and from thence to the end of the then next Session of Parliament.

REPORT.
 
The Select Committee appointed to consider the validity of the doctrine of Contagion in the Plague; and to report their observations thereupon, together with the Minutes of the Evidence taken before the House: Have considered the matters to them preferred, and have agreed upon the following Report.

Your Committee being appointed to consider the validity of the received doctrines concerning the nature of contagious and infectious diseases, as distinguished from other epidemics, have proceeded to examine a number of medical gentlemen, whose practical experience or general knowledge of the subject appeared to your Committee most likely to furnish the means of acquiring the most satisfactory information. They have also had the evidence of a number of persons whose residence in infected countries, or whose commercial or official employments enabled them to communicate information as to facts, and on the principle and efficacy of the laws of Quarantine; all the opinions of the medical men whom your Committee have examined, with the exception of two, are in favour of the received doctrine, that the Plague is a disease communicable by contact only, and different in that respect from Epidemic fever; nor do your Committee see any thing in the rest of the evidence they have collected, which would induce them to dissent from that opinion. It appears from some of the evidence, that the extension and virulence of the disorder is considerably modified by atmospheric influence; and a doubt has prevailed whether under any circumstance, the disease could be received and propagated in the climate of Great Britain. No fact whatever has been stated to show, that any instance of the disorder has occurred, or that it has ever been known to have been brought into the Lazarettos for many years: but your Committee do not think themselves warranted to infer from thence, that the disease cannot exist in England; because in the first place, a disease resembling, in most respects, the Plague, is well known to have prevailed here in many periods of our history, particularly in 1665-6: and further, it appears that in many places, and in climates of various nature, the Plague has prevailed after intervals of very considerable duration.

Your Committee would also observe, down to the year 1800, Regulations were adopted, which must have had the effect of preventing goods infected with the Plague from being shipped directly for Britain; and they abstain from giving any opinion on the nature and application of the Quarantine regulations, as not falling within the scope of enquiry to which they have been directed; but they see no reason to question the validity of the principles upon which such regulations appear to have been adopted.

14th June, 1819.

The plaintiff, who was a physician living at Doncaster, brought this action for fees, for attending a considerable time on the defendant’s testator, who lived at some little distance from the town; and the evidence was, that at Doncaster and its neighbourhood there was no certain rule about fees, but the general practice was for a physician to receive two guineas a week for his attendance. The plaintiff obtained a verdict at the last assizes at York; to set aside which Wood obtained a rule nisi last term, on the ground that no action lay for a physician’s fees any more than for a barristers.

Cockell, Serj. and Chambre, now shewed cause; observing that though this point had been ruled several times at nisi prius against such a claim, yet it had never been solemnly decided, nor was there any authority in the books for putting the claim of a physician’s fees upon the same footing as those of a barrister. In the latter case it might originally have been proper that no temptation should be held out to countenance injustice: but in the former it would be equally impolitic that those who are frequently put to expense in attending patients at a distance, and who are liable to make reparation to those who may suffer by their want of skill, should not be certain of a just and honourable reward. The regulation with regard to barristers is founded on grounds of public policy, as appears by the passage in Tacitus, to which Mr. J. Blackstone refers; but they are totally inapplicable to the case of physicians. And in that very passage in Tacitus it is taken for granted that the latter were entitled to a remuneration, because their situation was dissimilar to that of advocates. Besides in this case there is an additional reason why the plaintiff should recover, as there is understood to be a general stipulated acknowledgment for a physician’s attendance at the place where this transaction arose.

Lord Kenyon, Ch. J. I remember a learned controversy some years ago 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 the description of surgeons amongst us. But at all events it has been understood in this country that the fees of a physician are honorary, and not demandable of right. And it is much more for the credit and rank of that honorable body, and perhaps for their benefit also, that they should be so considered. It never was yet heard of that it was necessary to take a receipt upon such an occasion. And I much doubt whether they themselves would not altogether disclaim such a right as would place them upon a less respectable footing in society than that which they at present hold.

Per Curiam.

Lipscombe v. Holmes, esq.
 
(From Campbell.)

This was an action for work and labour as a surgeon, and for curing the defendant and several persons of his family, of divers diseases and maladies, under which they had respectively laboured and languished. The defendant pleaded the general issue, and paid 3l 13s 6d into court.

The first defence set up was, that the plaintiff was a physician, and therefore could not maintain an action for his fees. It appeared that he wrote prescriptions, was called “Doctor,” and signed himself M. D.

Park said he should shew, that at the time when the visits were paid, for which the action was brought, the plaintiff was only a surgeon; and that he had not taken out his diploma as a physician till long after.

Lord Ellenborough.—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 prescriptions and added M. D. to his name, he must be nonsuited.

Park then produced the rule for paying money into court, which his lordship thought removed the objection, and admitted the plaintiff’s right to sue as a surgeon.

It was afterwards agreed to withdraw a juror.

Slater v. Baker and Stapleton, C. B.
 
(From 2 Wils. R. 359.)

Special action upon the case, wherein the plaintiff declares that the defendant Baker being a surgeon, and Stapleton an apothecary, he employed them to cure his leg which had been broken and set, and the callous of the fracture formed; that in consideration of being paid for their skill and labour, &c. they undertook and promised, &c. but the defendants not regarding their promise and undertaking, and the duty of their business and employment, so ignorantly and unskilfully treated the plaintiff, that they ignorantly and unskilfully broke and disunited the callous of the plaintiff’s leg after it was set, and the callous formed, whereby he is damaged. The defendants pleaded not guilty, whereupon issue was joined, which was tried before the Lord Chief Justice Wilmot, and a verdict found for the plaintiff, damages £500. The substance of the evidence for the plaintiff at the trial was, first a surgeon was called, who swore that the plaintiff having broken both the bones of one of his legs, this witness set the same, that the plaintiff was under his hands nine weeks, that in a month’s time after the leg was set, he found the leg was healing and in a good way; the callous was formed, there was a little protuberance, but not more than usual; upon cross examination he said he was instructed in surgery by his father, that the callous was the uniting the bones, and that it was very dangerous to break or disunite the callous after it was formed.

John Latham an apothecary swore he attended the plaintiff nine weeks, who was then well enough to go home, that the bones were well united, that he was present with the plaintiff and defendants, and at first the defendants said the plaintiff had fallen into good hands; the second time he saw them all together the defendants said the same, but when he saw them together a third time there was some alteration, he said the plaintiff was then in a passion, and was unwilling to let the defendants do any thing to his leg; he said he had known such a thing done as disuniting the callous, but that had been only when a leg was set very crooked; but not where it was straight.

A woman called as a witness, swore that when the plaintiff came home he could walk with crutches, that the defendant Baker put on to the plaintiff’s leg an heavy steel thing that had teeth, and would stretch or lengthen the leg, that the defendants broke the leg again, and three or four months afterwards the plaintiff was still very ill and bad of it.

The daughter of the plaintiff swore, that the defendant Stapleton was first sent for to take off the bandage from the plaintiff’s leg; when he came he declined to do it himself, and desired the other defendant Baker might be called in to assist; when Baker came he sent for the machine that was mentioned; plaintiff offered to give Baker a guinea, but Stapleton advised him not to take it then, but said they might be paid all together when the business was done; that the third time the defendants came to the plaintiff, Baker took up the plaintiff’s foot in both his hands and nodded to Stapleton, and then Stapleton took the plaintiff’s leg upon his knee, and the leg gave a crack when the plaintiff cried out to them and said, “you have broke what nature had formed;” Baker then said to the plaintiff You must go through the operation of extension, and Stapleton said we have consulted and done for the best.

Another surgeon was called and swore, that in cases of crooked legs after they have been set, the way of making them straight is by compression and not by extension, and said he had not the least idea of the instrument spoken of for extension; he gave Baker a good character, as having been the first surgeon of St. Bartholomew’s hospital for twenty years, and said he had never known a case where the callous had deossified.

Another surgeon was called who swore, that when the callous is formed to any degree, it is difficult to break it, and the callous in this case must have been formed, or it would not have given a crack, and said extension was improper, and if the patient himself had asked him to do it, he would have declined it, and if the callous had not been hard he would not have done it without the consent of the plaintiff, that compression was the proper way, and the instrument improper; he said the defendant Baker was eminent in his profession. Another surgeon was called who swore, that if the plaintiff was capable of bearing his foot upon the ground, he would not have disunited the callous if he had been desired by him, but in no case whatever without consent of the patient; if the callous was loose it was proper to make the extension to bring the leg into a right line. A servant of the plaintiff swore the plaintiff had put his foot upon the ground three or four weeks before this was done.

The counsel for the defendants at the trial, for Baker, relied upon the good character which was given him, and objected there was no evidence to affect the other defendant Stapleton the apothecary; but the Lord Chief Justice thought there was such evidence against both the defendants as ought to be left to the jury, as the nodding, the advising Baker not to take the guinea offered to him by the plaintiff, besides the apothecary first proposed sending for Baker; the plaintiff was in no pain before they extended his leg, and he only sent to Stapleton to have the bandage taken off: the Lord Chief Justice asked the Jury whether they intended to find the damages against both the defendants, and they found £500 against them jointly, and he said he was well satisfied with the verdict.

It was now moved that the verdict ought to be set aside because the action is upon a joint contract, and there is no evidence of a joint undertaking by both defendants; the plaintiff sends for Stapleton to take off the bandage who declines doing it, and says, I do not understand this matter, you must send for a surgeon; accordingly Mr. Baker is sent for, who enters upon the business as a surgeon unconnected with Stapleton, who, it does not appear, ever undertook for any skill about the leg, so the jury have found him guilty without any evidence. That Baker has been above twenty years the first surgeon in St. Bartholomew’s hospital, reads lectures in surgery and anatomy, and is celebrated for his knowledge in his profession as well as his humanity; and to charge such a man with ignorance and unskilfulness upon the records of this court is most dreadful; all the witnesses agreed Mr. Baker doth not want knowledge, therefore this verdict ought not to stand. 2dly, It was objected that the evidence given does not apply to this action, which is upon a joint contract; the evidence is that the callous of the leg was broke without the plaintiff’s consent; but there is no evidence of ignorance or want of skill, and therefore the action ought to have been trespass vi & armis for breaking the plaintiff’s leg without his consent; all the surgeons said they never do any thing of this kind without consent, and if the plaintiff should not be content with the present damages, but bring another action of trespass vi & armis, could this verdict be pleaded in bar? the court without hearing the counsel for the plaintiff gave judgment for him.

2dly, It is objected that this is not the proper action, and that it ought to have been trespass vi & armis; in answer to this, it appears from the evidence of the surgeons that it was improper to disunite the callous without consent; this is the usage and law of surgeons; then it was ignorance and unskilfulness in that very particular, to do contrary to the rule of the profession, what no surgeon ought to have done; and indeed it is reasonable that a patient should be told what is about to be done to him, that he may take courage and put himself in such a situation as to enable him to undergo the operation; it was objected this verdict and recovery cannot be pleaded in bar to an action of trespass vi & armis to be brought for the same damage; but we are clear of opinion it may be pleaded in bar. That the plaintiff ought to receive a satisfaction for the injury, seems to be admitted; but then it is said the defendants ought to have been charged as trespassers vi & armis; the court will not look with eagle’s eyes to see whether the evidence applies exactly or not to the case, when they can see the plaintiff has obtained a verdict for such damages as he deserves, they will establish such verdict if it be possible. For any thing that appears to the court this was the first experiment made with this new instrument, and if it was, it was a rash action, and he who acts rashly acts ignorantly; and although the defendants in general may be as skilful in their respective professions as any two gentlemen in England, yet the court cannot help saying that in this particular case they have acted ignorantly and unskilfully, contrary to the known rule and usage of surgeons.

Judgment for the plaintiff per totam curiam.

Seare against Prentice.
 
From 8 East.