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is sufficient for the plt. to prove the certificate, without proving an apprenticeship served; Sherwin v. Smith, 1 Bing. 204. Where a promissory note has been given, which is expressed to be in “consideration" of his care and medical attendance bestowed on the maker," plt. must prove his certificate, or that he is within the exception contained in the 55 G. 3: Blogg v. Pinkers, R. & M. 125. A general certificate of qualification to practise, without limitation as to time or place, is sufficient, under 55 G. 3, c. 194, to enable him to sue on a bill for medicines, &c., though they are furnished to patients, in London ; although he has only paid £4. 45., the price of the country certificate, under such act: Chadwick v. Bunning, R. & M. 306-7; 2 C. & P. 106, S. C. In an action for the penalty under the act, it is for the deft. to prove the affirmative, that he has his certificate : Apothecaries' Company v. Bentley, R. . M. 159.
Proof of Plaintiff being a Surgeon, &c.] By 3 H. 8, c. 11, 3. I, *no one shall act as a surgeon within the city of London, or [*901 seven miles round, unless he be examined and licensed by the College of Surgeons, under the penalty of £5 per month. But notwithstanding this act, as it contains no prohibitory clause, it seems that a surgeon may maintain an action for his bill, without proving any license under it: Gremare v. Le Clerc, 2 Camp. 144; but see Bensley v. Bignold, 5 B. f. A. 340, &c.; Holt, 528. At all events, it is incumbent on the deft. in such action to prove that the plt. was not regularly licensed as the act directs: 2 Camp. 146.
Proof of Work done and Medicines supplied.] This may be done by plt.'s servant, or other party, who can speak to the fact. In the absence of other satisfactory evidence, deft.'s servants may be called : see further, post, “Work and Labour.” A surgeon may recover for attendance: Poucher y. Norman, 3 B. &. C. 745; 5 D. &. R. 649, 8. C.
Proof of Reasonableness of Charges.] This should be proved as in ordinary cases : post, “Work and Labour," "Attorney."
Evidence for Defendant.
The deft. should be prepared to disprove plt.'s case. If deft. object that plt. is not licensed, under 3 H. 8, to practise as a surgeon, it has been held, that it is incumbent upon the deft. in such action to give evidence that the plt, is not regularly licensed as the act directs: Gremure v. Le Clerc, 2 Camp. 144; sed quære supra. Deft. may show that plt. was a physician, Chorley v. Bolcot, 4 T. R. 317, Poucher v. Norman, 3 B. 8. C. 745, 5 D. 8. R. 649. S. C.; or it will be sufficient for him to show that he assumed the character of a physician, although he had no diploma, and had no right to assume that character, as plt. will be bound thereby : Lipscombe v. Holmes, 2 Camp. 441; Chorley v. Bolcot, 4 T. R. 317; ante, 49. As the law implies an undertaking on the part of surgeons and apothecaries, that they will exert a reasonable degree of skill, Seare v. Prentice, 8 East, 348, the deft. may show
urgeonuien, peana speccannot co
that his or the patient's complaint has been increased, or his health injured rather than benefited, in consequence of plt.'s gross unskilfulness or carelessness; and it will be a defence to any action for fees: p. Ld. Kenyon, Kannen v. M Mullen, Peake, 59; Duffit y. James, cited 7 East, 480; Duncan V. Blundell, 3 Stark, 6; post, “Assumpsit,” "Attorney.” But this is only in cases of gross negligence; and, if it appear that the improper remedies or unfit medicines were administered under the advice of a physician, the surgeon or apothecary is, in all cases, entitled to recover: Kannen v. M Mullen, Peake Rep. 59. In cases where an empiric professes to cure disorders in a specified time by sovereign remedies, and does not succeed in his cure, he cannot recover, Hupe v. Phelps, 2 Stark. 480; but this does not apply to a regular practitioner: ib. Where a surgeon leaves a blank in his bill for attendances, it will be a sufficient defence if deft. show that he has paid a reasonable sum : for, as p. Ld. Kenyon, Tuson v. Batting, 3 Esp. Rep. 193, “it is considering his demand in the light of a quiddam honorarium and leaving it to the generosity of the person he attends; and that person having paid money into court to a certain amount, it is to be taken as the sum which he considers as a fair remuneration for the plt.'s services, and which the plt. had left open in his bill; and that he cannot recover any more.” Deft. should, if possible, be prepared to disprove the work done, or prove the unreasonableness of the charges, or account claimed : post, Assumpsit,” “Evidence in Reduction of Damages."
ACTIONS AGAINST APOTHECARIES AND SURGEONS. op Form of Remedy and Pleadings.] A surgeon or apothe*917 cary is liable *in assumpsit or case, for ignorance or unskilful
ness, and. for negligence in the exercise of his profession; as the law implies an undertaking or duty on their part to exercise due and reasonable skill, &c.: Slater v. Baker, 2 Wils. 359; Seare v. Prentice, 8 East, 348; B. N. P. 73. There is nothing peculiar relating to the form of the pleadings. See further, post, “ Attorney," "Assumpsit.”
Evidence.] Plt. must prove that deft. was a surgeon or apothecary by profession, or that he was retained and paid as such by plt., or that he especially engaged to cure the plt. for reward. Plt. must then give evidence as to the nature of deft.'s treatment: and he should call persons of skill and experience to prove that the treatment of the defendant was unskilful and improper; and that the wound or complaint, or increased wound or complaint, of the plt., resulted from such improper and unskilful treatment. The damages should be proved by showing the length of time plt. has been ill, that he will never again have the use of a limb or part of his body as before, the expense he has incurred, &c. The evidence for the deft. will consist in rebutting these proofs. See further, post, “ Attorneys, Actions against, for Negli
ACTION ON AN INDENTURE OF APPRENTICESHIP, 91.
Action on the indenture of Apprenticeship. Form of Remedy.] Covenant is the usual remedy upon an indenture of apprenticeship against the party who covenanted for the due performance of it; but covenant does not lie where the binding is for less than seven years, 1 Anst. 256–7, or against an infant apprentice, Gylbert v. Fletcher, Cro. Car. 179, Rex v. Hindrigham, 6 T. R. 557; and the only remedy in the latter case would be against the party who covenanted for the infant's due performance of the indenture.
Form of Pleadings—Declaration. There is nothing peculiar re.. lating to the declaration in this case; which does no more than set forth the indenture, with a profert, and the breach, as in other actions of covenant: post, “Covenant.” It has been held, in an action by an apprentice for not finding him victuals and other necessaries, that a breach in the words of the covenant suffices: Proctor v. Burdet, 3 Lev. 170.
Plea.] The rules as to pleading in covenant here prevail: see “Covenant.” Matters in discharge should be pleaded specially; so should performance. It is no plea to an action against a master for dismissing the apprentice, that the latter misbehaved himself. Winstone v. Linn, 1 B. 8. C. 460, 2 D. & R. 465, s. C.; and, in an action against the covenantor for the apprentice, it is no plea that the son faithfully served till he came of age, and then avoided the indenture: Cuming v. Hill, 3 . B. & A. 59.
Precedents.] See form of precedent in action against a father for neglect of duty of apprenticeship, 2 Chit. Pl. 517; in action by the apprentice against master, ib. 519; by apprentice against executor of master, ib. 522; plea that the deft. provided board, &c., ib. 1004; that plt. absented himself, ib. 1003; that deft. did not discharge him, ib. 1006.
* Evidence for Plaintiff.] The usual evidence to be adduced f*921 in actions of covenant will be here applicable. The indenture should be produced and proved in the usual way, if deft. bas pleaded non est factum: see “Deed." The breach should also be proved, if denied by deft. in his pleadings; and plt. should be prepared to support his answer to any special plea of deft.'s: see “Covenant."
Evidence for Defendant.] This must depend on the nature of the pleadings, which he should be prepared to support. No observations are here peculiarly requisite: see “Covenant." Vol. I.
Action for Enticing away an Apprentice.
See post, “ Master und Servant.” . Form of Remedy.] Case is the most usual and proper form of action for an injury of this nature: Regina v. Daniel, 1 Salk. 380; Regina v. Collingwood, Raym. 1116; Hart v. Aldridge, Cowp. 54; Hambleton v. Vere, 2 Saund. 169. The master may sue for the work and labour of the apprentice: Foster v. Stewart, 3 M. & S. 191: Lightly v. Clouston, 1 Taunt. 112; Eades v. Vandeput, 5 East, 39, n.
Form of Pleadings.] Declaration commences with a statement of the party's being the apprentice of the plt. In some precedents, the indentures of apprenticeship are stated at length, by way of inducement; but this is certainly unnecessary, and not advisable : Hambleton v. Vere, 2 Saund. 169. Where there is not a strict legal apprenticeship, it would in one count be advisable not to describe it so: Ashcroft v. Bertles, 6 T. R. 652. It should be stated deft. knew that the third person was plt.'s apprentice: 3 Bla. Co. 142; Fores v. Wilson, Pea. Rep: 55; Winsmore v. Greenbank, Willes, 582. The means of enticement or harbouring used by deft, need not be stated : ib. The damage by reason of the loss should be stated : Eades v. Vandeput, 5 East, 39; Bird v. Randall, Burr. 1352. Counts should be inserted, as well for the enticing away, as for the harbouring: Blake v. Lanyon, 6 T. R. 221. The general issue will generally suffice: see “Case.”
Precedents.] See form in case for enticing away apprentice: 2 Chit. Pl. 645, 6.
Evidence for Plaintiff.] Plt. should prove the apprenticeship by the indentures, which should be produced and proved in the usual way: see “Deed.” It should be proved deft. knew of the apprenticeship at the time of his enticing away or harbouring the apprentice; Fores v. Wilson, Pea. Rep. 55; Pea. Ev. 334; Winsmore v. Greenbank, Willes, 582. Slight evidence would suffice. If any express notice of it was given to deft., the same should be proved: see "Notice.” The mode of deft.'s causing the injury should, if possible, be proved; though this is not absolutely necessary. It will suffice to show the apprentice was enticed away or harboured by deft. The damage must be proved: Eades v, Vandeput, 5 East, 39; Bird y. Randall, Burr. 1352. The value of the services lost should be shown. The measure of damages is not to be ascertained at the actual loss plt. sustained at the time, but for injury done by causing the apprentice to leave plt.'s employment. Gunter v. Astor, 4 Moo. 12. The apprentice, or his father, or party entering into the indenture, would, it should seem, be a competent witness for either party, though sometimes a dangerous one.
Evidence for Defendant.] Deft. should be prepared to dis[*93] prove *plt.'s case: he cannot, however, avail himself of any
objection to the indenture of apprenticeship, Keane v. Boycott, 2 H. Bla. 511, Westerdell v. Dale, 7 T. R. 310, 1, 4, 1 Anst. 256 ; but he may show that the plt. was not a housekeeper, and of the age of twenty-four years, when the third party was bound to him: Gye v. Fel. ton, 4 Taunt. 876. He should also be prepared to reduce the damages, as far as he can.
See “Malicious ARREST,” “Process.”
ARTICLES OF WAR.
See “Public Documents.”
ASSAULT AND BATTERY.
Form of Remedy, 94.
Declaration for an Assault and Battery, 99.
Second Count for a Common Assault, ib.
Son Assault in Defence of a Relative, ib.
prevent Plt. and third Person from fighting, ib.
Servant, 101. justifying as Tavern-Keeper, to prevent Plaintiff
• leaving Tavern without paying his bill, ib. Replication de Injuria, 102.
to Plea of Son Assault Demesne, that E. F. was pos
sessed of a House, and that Plaintiff turned him