and been retained by the defendant in that character, it was held, that this primâ facie evidence was unrebutted by the defendant, and that the plaintiff was entitled to recover. Pearce v. Whale, 5 B. and C. 38. It is no defence in an action for fees due for the suing out a commission of bankruptcy, that the plaintiff is only an attorney of K. B. and not a solicitor in Chancery. Wilkinson v. Diggell, 1 B. and C. 158. And it is no defence that the plaintiff refused to go on with a suit in Chancery, if the defendant did not supply him with money. Rowson v. Earle, 1 M. and M. MSS.

Where one attorney does business for another, the attorney who does the business universally gives credit to the attorney who employs him, and not to the client for whose benefit it is done. If the attorney in such case intends not to be personally responsible, it becomes his duty to give express notice, that the business is to be done on the credit of the client. It furnishes no defence that the business was known by the plaintiff to be done for the benefit of the client. Scrace V. Whittington, 2 B. and C. 11.

ASSUMPSIT ON APOTHECARY'S OR

SURGEON'S BILL.

The plaintiff must, in the first instance, prove his title to sue as an apothecary, for by stat. 55 Geo. III. c. 194, s. 21 (explained and amended by 6 Geo. IV. c. 133), no apothecary shall be allowed to recover any charges claimed by him in any court of law, unless such apothecary shall prove on the trial, that he was in practice as an apothecary prior to or on the 1st August, 1815, (see Apothecaries' Comp. v. Roby, 5 B. and A. 952: and it seems, that by 6 Geo. IV. c. 133, s. 5, he must prove himself to have been in practice on the first day of August, 1815,) or that he has obtained a certificate to practise as such from the Apothecaries' Company. The statute does not relate to physicians, chemists, or druggists, or to the College of Surgeons. Sec. 28, 29. It has been ruled by Best, C. J., that an apothecary may either charge for his attendances, or for the medicines which he supplies, but that he cannot charge for both. Towne v. Lady Gresley, 3 C. and P. 581; but see Handey v. Henson, 4 C. and P. 110, post, p. 202.

"Practice as an apothecary."] Merely administering medicines previous to the 1st August, 1815, will not be sufficient to prove that the party practised as an apothecary, and incapacity to make up the prescriptions of a physician will be cogent evidence to prove the negative. Apothecaries' Company v. Warburton, 3 B. and A. 40. It has been ruled by Lord Tenterden, that curing a local complaint is not sufficient evidence that the party compounded medicines according to pre

scription. To entitle him to sue he must have practised the general duties of an apothecary. Thompson v. Lewis, 1 M. and M. 255, 3 C. and P. 483, S. C. Practice while in the service of another is not a practising within the act.

Robinson, 1 C. and P. 264.

Brown v.

Certificate.] By 6 Geo. IV. c. 133, s. 7, the common seal of the Company of Apothecaries is sufficient proof of the certificate, and that the person therein named is qualified to practise but the seal must be proved to be the seal of the company. Chadwick v. Bunning, R. and M. 306, 2 C. and P. 106, S. C. A general certificate, not confining the party to practise in the country, will entitle him to recover for business done in London, although he has only paid 41. 4s. the price of the country certificate under 55 Geo. III. c. 194, s. 19. Ibid. The certificate supersedes the necessity of proving an apprenticeship served. Sherwin v. Smith, 1 Bing. 204, 8 B. Moore, 30. S. C.

If a promissory note be given "in consideration of the plaintiff's care, and medical attendance bestowed upon the maker," and notice is given of disputing the consideration of the note, it is incumbent upon the plaintiff to prove himself qualified by stat. 55 Geo. III. c. 194. Blogg v. Pinkers, R. and M. 125.

Surgeon's Bill.

By 3 Hen. VIII. c. 11, s. 1, no one shall act as a surgeon within the city of London, or seven miles round, unless he be examined and licensed by the College of Surgeons, under the penalty of 51. per month. It is incumbent upon the defendant, if he intends to avail himself of the plaintiff being unlicensed, to prove that fact, Gremaire v. Le Clerc Bois Valon, 2 Campb. 143, and it seems that as the statute contains no prohibitory clause, a person, though subject to a penalty, may recover for his labour. Ibid.

A surgeon who practises as a physician, having no diploma, cannot maintain an action for his fees; Lipscombe v. Holmes, 2 Campb. 441; and if in his bill a surgeon leaves a blank for his charge for attendances, and the defendant pays a certain sum into court on that account, the plaintiff is bound by that sum, and cannot recover more. Tuson v. Batting, 3 Esp. 192.

A surgeon not having a certificate from the Apothecaries' Company, cannot charge for his attendance or for administer ing medicine, except in cases within his own department. He cannot, therefore, recover for attending a patient in the typhus fever. Allison v Haydon. 4 Bingh., 619, 3 C. and P. 246, S. C. But if the plaintiff be a surgeon and apothecary he may, besides his charges for medicine, recover reasonable charges for attendances. Handey v. Henson, 4 C. and P. 110.

Defence.

If the defendant has received no benefit, in consequence of the plaintiff's want of skill, the latter cannot recover. Kannen ▼. M'Mullen, Peake, N. P. C. 59. Duffit v. James cited 7 East, 480. So a person who professes to cure disorders in a specified time by sovereign remedies, and induces the defendant to employ him by false and fraudulent representations of his skill, and does not succeed in his cure, cannot recover for medicines and attendance, Hupe v. Phelps, 2 Stark, 480; but the remuneration of a regular practitioner, who has used due care and diligence, does not depend on his effecting a Per Abbott, C. J., ibid.

cure.

A physician can maintain no action for his fees. Chorly Y Bolcot, 4 T. R. 317.

cause,

ASSUMPSIT FOR SERVANTS' WAGES.

In an action by a servant for his wages, the plaintiff must prove a retainer, of which his service will be evidence, the length of time he has served, and the amount of his wages. A general hiring, without mention of time, is a hiring for a year, and if during the year the master dismiss his servant without cause, the latter is entitled to his wages until the end of the year. Beeston v. Collyer, 4 Bingh. 309, 2 C. and P. 607, S.C. But if he leaves his service during the year without it seems to be a forfeiture of the wages due to him, and he cannot recover anything. Hutman v. Boulnois, 2 C. and P. 510. With regard to a menial servant, there is a common understanding that the contract may be dissolved by either party, by the master on paying a month's wages or giving a month's warning, by the servant on giving a month's warning. See Beeston v. Collyer, 4 Bingh. 313. In such case, therefore, if the master, without reasonable cause, turn the servant away, the latter will be only entitled to recover a month's wages. Robinson v. Hindman, 3 Esp. 235. But other servants, as clerks, &c. may recover their wages for the remainder of the year. Beeston v. Collyer, 4 Bingh. 309. And where wages are payable quarterly, and the servant is tortiously discharged in the middle of the quarter, he has been allowed to recover for the whole quarter, on the general count for work and labour. Gandall v. Pontigny, 4 Campb. 375, 1 Stark. 198, S. C. See Eardly v. Price, 2 N. R. 333; but see Hulle v. Heightman, 2 East, 145. But if a servant misconduct himself, the master may turn him away without any warning; Spain v. Arnott, 2 Štark. 256; Trotman v. Dunn, 4 Campb. 212; and in such case, the misbehaviour seems to be a forfeiture of the accruing wages. Alkin v. Acton, 4 C. and P. 208. See Shirman v. Bennett, 1 M. and M. MSS. A servant incapacitated from

actual service during part of his time by sickness, is still entitled to recover his wages for the whole period. R. v. Winterdatt, Cald. 298; and see Chandler v. Grieves, 2 H. B. 606.

A servant who comes over from the West Indies, where he has been a slave, and who continues in the service of his master in England, is not entitled to wages without an express agreement. Alfred v. Fitzjames, 3 Esp. 3.

ASSUMPSIT FOR NOT ACCEPTING GOODS.

In an action of assumpsit for not accepting goods sold, the plaintiff must prove the contract and breach, the performance of all conditions precedent on his part, and the amount of damage.

The contract.] By the seventeenth section of the statute of frauds, 29 Car. II. c. 3, no contract for the sale of any goods, wares, and merchandises, for the price of 10l. sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties, to be charged by such contract, or their agents thereunto lawfully authorised.

What contracts are within the seventeenth section of the statute of frauds.] It was formerly thought that executory contracts were not within the statute; Towers v. Sir J. Osborne, 1 Str. 505, Clayton v. Andrews, 4 Burr. 2101, B. N. P. 279; but that opinion was afterwards exploded; Rondeau v. Wyatt, 2 H. Bl. 63. Garbutt v. Watson, 5 B. and A. 613; and therefore it was held that a contract by the plaintiffs, who were millers, for the sale of flour, which was not at the time prepared so as to be capable of immediate delivery, was within the statute. Garbutt v. Watson, 5 B. and A. 613. But where the contract was not for the sale of goods, but for work and labour and materials found, as in that case the subject matter of the contract did not exist in rerum naturâ, and was incapable of delivery and of part acceptance, it was held not to be within the statute. Thus a contract for the purchase of a quantity of oak pins (for upwards of 10l.) which were not then made, but were to be cut out of slabs, was held not to be within the statute; Groves v. Buck, 3 M. and S. 178; and upon this principle the case of Towers v. Osborne, which was a contract for a chariot not then made, may be supported. Cooper v. Elston, 7 T. R. 17; see also Astey v. Emery, 4 M. and S. 262; Smith v. Surman, 9 B. and C. 576. But now by Lord Tenterden's act, 9 Geo. IV. c. 14, s. 7, the above provision of the statute of frauds shall

extend to all contracts for the sale of goods of the value of 10/. sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. To bring the contract within the statute, the value of the goods must be upwards of 10., and where several articles were bought at a shop at the same time, but at different prices, each under 10l., but amounting altogether to 70l., it has been held to be one contract and within the statute. Baldey v. Parker, 2 B. and C. 37, more fully stated post. With regard to contracts for the sale of growing crops and timber, see the cases cited ante, p. 120.

The cases with regard to an acceptance of goods within this section of the statute of frauds, are stated under a subsequent head. Vide post, Assumpsit for goods sold and delivered," P. 216.

Sales by auction, of goods, are within the statute. Kenworthy v. Schofield, 2 B. and C. 945.

What note or memorandum in writing is sufficient within the seventeenth section of the statute of frauds.] The word bargain, used in the statute, means the terms upon which the parties contract. Per Bayley, J., Kenworthy v. Schofield, 2 B. and C. 947. The price must be stated. Elmore v. Kingscote, 5 B. and C. 583. "We agree to give Mr. E. 1s. 7d. per pound for thirty bales of Smyrna cotton, customary allowance, cash three per cent., as soon as our certificate is complete,M. and T." has been held a sufficient memorandum. Egerton v. Mathews, 6 East, 307. See Cooper v. Smith, 15 East, 103. Richards v. Porter, 6 B. and C. 437. As the language of this section is in substance the same as that of the fourth section, relating to the sale of lands, see 2 B. and C. 947, it will only be necessary to refer to the cases already cited, ante, p. 136, with regard to the signing of the note or memorandum by the party, and the manner in which two writings may be connected, in order to form a complete note or memorandum.

An auctioneer is the agent of both parties, Kenworthy v. Schofield, 2 B. and C. 947; and if he writes down the buyer's name, or that of his agent, in the catalogue, to which the conditions of sale are annexed, opposite the lot, together with the price bid, it seems a sufficient memorandum. Phillimore v. Barry, 1 Campb. 513. Kenworthy v. Schofield, 2 B. and C. 945. But where the conditions of sale are not annexed to the catalogue, and there is no reference to them in the catalogue, signing the buyer's name in the catalogue is not a compliance with the statute. Hinde v. Whitehouse, 7 East, 558. Kenworthy v. Schofield, 2 B. and C. 945.