v. McMillan, 60 Wis. 546. See also Coggin v. Stephens, 73 Ga. 414. But if this is done at the earliest practicable opportunity, the assignment will generally be effective from and after the date of its execution. Nye v. Van Husan, 6 Mich. 329; S. C., 74 Am. Dec. 690; Crow v. Red River Co. Bank, 52 Tex. 368; Clark v. Mix, 15 Conn. 152; Ely v. Blair, 16 B. Mon. (Ky.) 230; Steinlein v. Halstead, 52 Wis. 289; Stamp v. Case, 41 Mich. 267; Woodward v. Marshall, 22 Pick. 468. Such omission however, with other circumstances, may be evidence of fraud. Kellogg v. Slauson, 15 Barb. 56; S. C., 11 N. Y. 302; Stevens v. Bell, 6 Mass. 339; Linn v. Wright, 18 Tex. 317; S. C., 70 Am. Dec. 282.

"It is a rule for the construction of all written instruments conveying property, that if a general clause be followed by special words, the instrument shall be construed according to the special matter; and in the application of this rule it is held that the general words of an assignment should be restricted by a subsequent clause referring to a schedule annexed for a more full description." Per Earl, J., in Emigrant Industrial Savings Bank v. Roche, 93 N. Y. 374, 378; citing Wilkes v. Ferris, 5 Johns. 335; Holmes v. Hubbard, 60 N. Y. 183. See also to the same effect, Mims v. Armstrong, 31 Md. 87; S. C., 1 Am. Rep. 22; Driscoll v. Fiske, 21 Pick. 503; Scott v. Coleman, 5 Litt. 349; S. C., 15 Am. Dec. 71; Guerin v. Hunt, 6 Minn. 375; Price v. Haynes, 37 Mich. 487; Dodd v. Martin, 15 Fed. Rep. 338, 341; Bock v. Perkins, 28 id. 123. But this rule is said to be "subordinate to the paramount and more general rule which requires that all instruments shall be so construed as to give effect to the intention of the parties." Emigrant, etc., Bank v. Roche, 93 N. Y. 374, 378. Omissions in the list of creditors or a slight mistake in stating the amount of a claim, when unintentional will not vitiate an assignment. Smith v. Bowen, 61 Wis. 258; Barrvilhet v. Fisch, 63 Cal. 462. And it is probable that a slight mistake or unintentional omission in describing the property of the debtor will not render the entire assignment void under any of the general assignment laws. See King v. McGilliard, 76 Ind. 28; Shullz v. Hoagland, 85 N. Y. 464; Hayes v. Doane, 11 N. J. Eq. 84; United States v. Clark, 1 Paine, 629.

The deed or schedule ought to contain a full and complete description of all the property assigned; but as to just what descriptions are sufficient, and as to the exact effect of an insufficient or defective description on the assignment, the authorities are not agreed. Some of the statutes expressly provide that the assignment shall be so construed as to pass all the debtor's estate whether specified therein or not. Such is the case in Texas. Cunningham v. Norton, 8 Sup. Ct. Rep. 804. And in Kentucky a mortgage by a debtor on part of his property in contemplation of insolvency, or a transfer of a certain portion thereof to creditors knowing his insolvency, with intent to prefer them, will operate as an assignment of all his estate for the benefit of all his creditors. First National Bank v. Roberts, 7 S. W. Rep. 890; James v. Sigler, 7 id. 632. Where there is no express provision in the statute to such effect, some of the authorities hold that an assignment will be invalid because of uncertainty in the description of the property, especially where real estate is assigned. Bellamy v. Bellamy's Adm'r, 6 Fla. 62; Ryerson v. Eldred, 18 Mich. 12; Price v. Haynes, 37 Mich. 487; Crow v. Ruby, 5 Mo. 484. And this, in the case of real estate, is in accordance with the rule requiring a sufficient description of the land in all conveyances under the statute of frauds. Miller v. Campbell, 52 Ind. 125; Baldwin v. Kerlin, 46 id. 427; Browne St. Frauds, § 371. Certainly, in ordinary cases a deed attempting to convey real estate without describing it, would be ineffective, and if a deed of as

signment has that power it surely forms an exception to the general rule. The courts holding that deeds of assignment possess no such magic power may well base their decisions therefore upon the general rule, and this they have usually done. Thus, in the case of Baldwin v. Peet, 22 Tex. 708; S. C., 75 Am. Dec. 806, 815, the court held that a deed of assignment would be invalid for want of a sufficient description or where wanting in qualities generally, "which when wanting in any deed, render it invalid as a conveyance." The same court, in another case, stated, as an additional reason for requiring a specific enumeration or description of the property assigned, that the creditors ought to be "fully informed as to the disposition which the assignor had made of his property. They ought not to be bound by any assignment which was effected in such a manner as not to enable them to hold the assignee or trustee responsible for all the property conveyed, or as to needlessly embarrass their remedy against him in case of his delinquency." Linn v. Wright, 18 Tex. 275; 8. C., 70 Am. Dec. 281. The Supreme Court of Georgia has also applied the general rule to deeds of assignment, holding a full and complete description necessary to their validity. Turnipseed v. Schaefer, 76 Ga. 109; S. C., 2 Am. St. Rep. 17; McMillan v. Knapp, 76 Ga. 171; S. C., 2 Am. St. Rep. 29.

On the other hand, it has been held that property may be assigned in general terms whenever their application can be made definite by parol evidence. Clark v. Few, 62 Ala. 243. And the weight of authority seems to be to the effect that where the deed clearly shows an intention on the part of the assignor to bring the assigument within the operation of the general assignment law, the statute will operate in connection therewith to convey all of his property, although not specifically enumerated or described therein, and in the absence of fraud, such an assignment will therefore be valid. Seibert v. Milligan, 110 Ind. 106; Shultz v. Hoaglund, 85 N. Y. 464; Platt v. Lott, 17 N. Y. 478; Strong v. Lynn (Minn.), 37 N. W. Rep. 448. See also Emerson v. Senter, 118 U. S. 3; Hasseld v. Seyfort, 105 Ind. 534; Wickham v. Green, 61 Miss. 463. Thus, in Emigrant, etc., Bank v. Roche, 93 N. Y. 374, it was held that a judgment in favor of the assignor passed to the assignee, although it was not mentioned in the deed or schedule. So, in the case of Seibert v. Milligan, supra, it was held, after careful consideration, that the omission of a large amount of real estate did not render the assigument invalid, and that it passed to the assignee although it had been fraudulently conveyed by the assignor to another previous to the assignment. This was held under a statute requiring a full description of all the real estate assigned, and in this respect at least the decision seemed in conflict with other recent decisions by the Supreme Courts of Georgia and Tennessee. Turnipseed v. Schaefer, 76 Ga. 109; S. C., 2 Am. St. Rep. 17; Scheibler v. Mundinger, 9 S. W. Rep. 33.

The only satisfactory rule which can be deduced from the authorities in their present state would seem to be this: If the statute is silent upon the subject, and it does not appear from its provisions that the Legislature intended that all property should pass to the assignee whether described in the deed or not, property not described will not pass, and the omission of a large amount will generally render the assignment invalid; but if the statute, either in express terms or in its general tenor, evinces an intention ou the part of the Legislature that all property of the assignor shall pass, whether specifically described or not, and the deed shows an intention on the part of the assignor to avail himself of the benefit of the statute, the assignment will be valid and effective, not

withstanding a defective description of the assignor's property. W. F. ELLIOTT.

INDIANAPOLIS, IND.

MALPRACTICE-CLAIRVOYANTS-DEGREE

OF CARE AND SKILL.

WISCONSIN SUPREME COURT, NOV. 8, 1888.

NELSON V. HARRINGTON.

In an action against a clairvoyant physician for malpractice, the court was asked to charge that if at the time defend. ant was called to treat plaintiff, both parties understood that he would treat him according to the approved practice of clairvoyant physicians, and that he did so treat him, with the ordinary skill and knowledge of the clairvoyant system, plaintiff could not recover. Held, properly refused. One who holds himself out as a healer of diseases must, no matter to what particular school or system he belongs, be held to the duty of reasonable skill. LONG, J. (omitting minor points). The defendant is what is known as a “clairvoyant physician,” and held himself out, as other physicians do, as competent to treat disease of the human system. He did not belong to or practice in accordance with the rules of any existing school of physicians, governed by formulated rules for treating diseases and injuries, to which rules all practitioners of that school are supposed to adhere. The testimony shows that his mode of diagnosis and treatment consisted in voluntarily going into a sort of trance condition, and while in such condition to give a diagnosis of the case, and prescribe for the ailment of the patient thus disclosed. He made no personal examination, applied no tests to discover the malady, and resorted to no other source of information as to the past or present condition of the plaintiff. Indeed he did not profess to have been educated in the science of medicine. He trusted implicitly to the accuracy of his diagnosis thus made, and of his prescriptions thus given.

The general rule above stated requires of one holding himself out as a physician the exercise of the same skill and care as is ordinarily exercised by physicians in good standing, who belong to the same school of medicine, and practice under the same rule. To constitute a school of medicine under this rule, it must have rules and principles of practice for the guidance of all its members, as respects principles, diagnosis and remedies, which each member is supposed to observe in any given case. Thus any competent practitioner of any given school would treat a given case substantially the same as any other competent practitioner of the same school would treat it. One school may believe in the potency of drugs and blood-letting, and another may believe in the principle similia similibus curantur; still others may believe in the potency of water, or of roots and herbs; yet each school has its own peculiar principles and rules for the government of its practitioners in the treatment of diseases. Not so however with the clairvoyant practice. True, the practice has but one mode of ascertaining what the disease is, and the remedy therefor. This mode has already been stated. But the mode in which a physician acquires a knowledge of his profession has nothing to do with his school or system of practice. One person may acquire such knowledge from certain books; another from certain other books, which perhaps teach different principles; still another from oral communication, as lectures, et cet., or from experience alone; and still another from his intuition when in an abnormal mental state; yet these differences do not necessarily constitute separate schools of medicine. The clairvoyant and the practitioner of the allopathic

or homeopathic system may belong to the same school or system, provided they adopt the same principles and observe the same rules of treatment. The methods by which a man acquires a knowledge of medical science is one thing, and the principles and rules which govern him in the practice of medi cine is another and very different thing.

This is just the difference between clairvoyant phy sicians as a class and the practitioners of a school or system of medical practice recognized in the general rule of professional ability above laid down. The regular physician of any school or system acquires his professional knowledge by the study of the general principles of the science, and applies such knowledge to each particular case as it arises, while the clairvoy. ant physician may have no such general knowledge, but believes himself especially and effectually educated to treat each particular case as it is presented to him, without reference to any particular system or school. These observations dispose of the exceptions based upon the rejection of testimony offered to show that the defendant practiced only as a clairvoyant physician. That was conclusively proved before, and the rejection of the testimony (if material under other circumstances) was of no importance.

It should be observed that the answer of the defendant does not allege, and no testimony was given or offered to show, that clairvoyant physicians, as a class, treat diseases upon any such principles, or that rules have been formulated which each practitioner is supposed to follow in the treatment of disease, as is the case with the schools or systems of medicine before mentioned.

Clairvoyant physicians have a common mode of acquiring their knowledge of cases, but their methods of treatment may be contradictory, and as numerous as are the practitioners, and no principle or rule of clairvoyant treatment be violated thereby. The proposition that one holding himself out as a medical prac titioner, and as competent to treat human maladies, who accepts a person as a patient, and treats him for disease, may, because he resorts to some peculiar method of determining the nature of the disease and the remedy therefor, be exonerated from all liability for unskillfulness on his part, no matter how serious the consequences may be, cannot be entertained. The proposition, if accepted as true, would, as already sug gested, contravene a sound public policy. It matters not that the patient, or those who are responsible for him, know the methods of the practitioner. The responsibility for malpractice must still be laid on the latter.

It should be stated in this connection that the father of the plaintiff, who employed the defendant to treat his son, testified that he so employed him because he believed him to be a skillful physician; that he did not depend upon the trance business, but on the defendant, the same as he would on any other physician; and that he believed in him because he had performed remarkable cures.

It follows that the court properly refused to give an instruction proposed on behalf of the defendant in these words: "If defendant was a clairvoyant physician, and professed and held himself out to be such. and the plaintiff and his parents knew it, and at the time he was called to treat the plaintiff both parties understood and expected that he would treat him according to the approved practice of clairvoyant physicians, and that he did so treat him, and in strict ac cordance with the clairvoyant system of practice, and with the ordinary skill and knowledge of that system, then the plaintiff cannot recover, and your verdict must be for the defendant." Instead of the words, "with the ordinary skill and knowledge of that system," employed therein, it should have read, "with

the ordinary skill and knowledge of physicians in good standing, practicing in that vicinity."

Since the cause was argued our attention has been called to the late case of Wheeler v. Sawyer, decided by the Supreme Judicial Court of Maine, and reported in 15 Atl. Rep. 67. The statutes of Maine allow any person to practice medicine who has obtained from the municipal officers of the town in which he resides a certificate of good moral character. The plaintiff had such certificate, and practiced according to the principles and methods of those calling themselves "Christian Scientists." The case shows that practitioners of "Christian Science" use no medicine, and the plaintiff used none. It has now become common knowledge that their treatment is entirely mental. The action was for professional services.

The objections to a recovery were "that the socalled 'Christian Science' is a delusion; that its principles and methods are absurd; that its professors are charlatans; that no patient can possibly be benefited by their treatment." The court held all this immaterial, and said, in substance, that the patient got all he bargained for, and must pay for it the agreed price. There is no question of liability for malpractice in the case. On the contrary, the patient said he was improved under the treatment. Were the defendant in the present case authorized by law to practice medicine, and should a patient employ him to go into a clairvoyant state, and while in such state to tell him his malady and the remedy therefor, and agree to pay him a certain sum of money for such services, and were the defendant to render the service, doing the patient no injury, but a benefit rather, an action brought by the defendant to recover the stipulated compensation would be like the Maine case. We perceive no valid objection to a recovery by the plaintiff in either case.

It goes without saying that we have here no such case for determination, and the Maine adjudication does not aid us. We have not been referred to any case in the books of an action for malpractice against a clairvoyant physician (so-called), and have found none. It is cause for surprise if no such case has arisen; for it is believed that this method has been employed quite extensively for many years, in different parts of the country. Whether the absence of such cases is to be accounted for on the theory that the bar and public have generally believed that this class of physicians are not legally responsible for want of skill, or because no member of it has been guilty of malpractice, or upon some other theory, is not here determined. Probably the fact that such cases have not come before the courts is not very significant. For want of them however we have been compelled to decide this case solely in the light of elementary rules of law, which perhaps furnish just as safe basis for judgment. In this connection brief reference will be made to a case cited by counsel for defendant in his argument which then impressed us as being nearer in point than any other case cited. It is that of McKleroy v. Sewell, 73 Ga. 657. The court sustained an instruction to the jury in these words: "If a man sends for a doctor, and the doctor treats the patient while he, the doctor, is intoxicated, and the patient afterward calls in said doctor, and continues to employ him, it would be a waiver of all objections to the doctor on account of his habit of intoxication." The language of this instruction (copied in the brief of counsel) seemed broad enough to cut off an action for malpractice. On looking into the case however, we find that action, like the Maine case, was by a physician to recover for professional services. The court said: "Surely, one cannot object to a doctor's bill on account of past intoxication, when he treats him as a family physician for years afterward." It is strongly

intimated in that case that the defendant might recoup in the action for damages caused by malpractice. If so, he might maintain an independent action for such damages. Hence the case is not in point, and throws no light on the present case.

The claim that the defendant belonged to and treated the plaintiff in accordance with the principles and rules of a particular school of medicine, and is relieved from liability in this action because thereof, having been negatived, the law applicable to the case may, we think, be correctly summarized as follows: One who holds himself out as a healer of diseases, and accepts employment as such, must be held to the duty of reasonable skill in the exercise of his vocation. Failing in this, he must be held liable for any damages proximately caused by unskillful treatment of his patient. This is simply applying the rule of liability to which all persons are subject who hold themselves out, and accept employment, as experts in any profession, art or trade. The theory upon which an expert practices his profession, art or trade, the sources from whence he derives his kuowledge of it, the tools and appliances he employs in the exercise of his calling, his methods of work, are not controlling considerations. The courts pass no judgment upon these matters. They look only to results. Thus, a person may rely entirely upon his genius, or normal intuitions, for some line of mechanical work, and hold himself out as an expert, and accept employment therein, without previous training or practice. The law holds him responsible if he does his work unskillfully, although he does the best he can. He takes the risks of the quality or accuracy of his genius or intuitions.

On the same principle one who holds himself out as a medical expert, and accepts employment as a healer of diseases, but who relies exclusively for diagnosis and remedies upon some occult iufluence exerted upon him, or some mental intuition received by him, when in an abnormal condition, in like manner takes the risks of the quality or accuracy of such influence or intuition. If these move him so imperfectly or inaccurately that, although he pursues the course of treatment thus pointed out or indicated to him, if he fails to treat the patient with reasonable skill, he is liable for the consequences. The only difference in the two cases is, the mechanic acts under normal, and the physician under abnormal, influence or intuition. The law does not concern itself with the quality of the mechanic's genius, or with the reality or nature of such alleged occult influence or intuition which controls the physician in his treatment of his patient. It only takes cognizance of the question, did the practitioner or expert render the service he undertook in a reasonably skillful manner? That question, as applied to the defendant, the jury, upon sufficient proof, have answered in the negative.

Judgment affirmed.

COSTS-TAXATION OF MAP AS AFFIDAVIT INVETERATE PRACTICE.

COURT OF CHANCERY OF NEW JERSEY, FEBRUARY TERM, 1888.

BOORAEM V. NORTH HUDSON COUNTY RAILWAY Co.* A map annexed to a bill or answer, the accuracy of which is verified by affidavit, and used on an application for an injunction, cannot be taxed as an affidavit upon the assumption that it represents as many folios of written matter as a skilled person could have written in the same number of hours required for inaking the map, although such method of taxation has prevailed for many years.

* To appear in 44 N. J. Eq. 70.

ON motion to retax costs.

J. H. Stone, for motion.
John C. Besson, contra.

VAN FLEET, V. C. This is an application for retaxation of costs. The complainant, on an application for an injunction, was defeated both in this court and in the Court of Errors and Appeals. Booraem v. North Hudson County R. Co., 12 Stew. Eq. 465; S. C., on appeal, 13 id. 557. Costs were awarded against the complainant. The defendant annexed five maps to its answer. The accuracy of these maps was verified by the affidavits filed with the answer, and the object of annexing the maps to the answer was to present the subject-matter of the litigation in a form so simple and lucid that it might be comprehended at a glance. The maps have been taxed as affidavits. They have been estimated as containing 500 folios, although they do not in fact contain three. As the costs now stand taxed, the solicitor is entitled to $100 for drawing 500 folios of affidavits, represented by nothing but the maps, and the clerk, for eurolling a like number of folios, represented by the maps, to $20. It is to these two items that objection is made. The complainant insists that their taxation is without the least warrant in law, and that they should for that reason be disallowed.

It is not pretended that the maps contain a sufficient number of words to justify their taxation at 500 folios, but the claim is that they represent labor, which if expended in drawing affidavits by a person of ordinary skill in such work, would have resulted in the production of that many folios of written matter. The method pursued in taxing maps as affidavits is described in this way: First, it is ascertained how many hours are required by a person of skill in such work to make a copy of the map which is to be taxed as an affidavit, and then an estimate is made of the number of folios of manuscript which a person of ordinary proficiency in such matters can write in that time, and the number of folios thus ascertained is taken as the number of folios of written matter which the map represents. A model or any other instrument made use of to show a locus in quo or explain the subject-matter of a litigation might, it will be perceived, under this method be taxed as an affidavit, although there is not a word or figure or other sign of language on it.

The taxation of costs is regulated by statute. Nothing can be taxed for which a legislative warrant cannot be found. The act regulating fees declares that the officers and persons named in it shall be entitled to demand and receive for the services mentioned in the act the fee annexed to each particular service, and no more. Rev. 399, § 2. There are but two provisions under which it can be claimed that the items objected to are allowable. The first regulates the fees which may be taxed for a solicitor, and allows to him "for drawing every bill, answer, plea, demurrer, replication and other pleading, and drawing exceptions and other proceeding, for each sheet twenty cents." Rev. 401. The phrase "drawing other proceeding" has, I believe, always been construed to include affidavits. And the second fixes the fees of the clerk, and is in these words: "For enrolling proceedings, for each folio of 100 words, six cents." Rev. 1037. The statute defines what is meant by a sheet or folio. It says sheet or folio shall contain 100 words, and in all cases where an entry of any writing or copy is to be paid for the said sheet shall consist of 100 words." Rev. 399, § 1. The collocation thus made of the several statutory provisions bearing upon the question under consideration would seem to show beyond a doubt that nothing is taxable as an affidavit which does not consist of

"that a

words which may be counted. The test which the statute prescribes, with the utmost simplicity of lan guage, for fixing the amount to be taxed for a plead ing or other proceeding is a count of words. The num ber of words is made the basis of taxation, and if there are no words on the instrument sought to be treated as an affidavit, it is evident that it does not belong to the class which the Legislature had in view, nor is it possible to bring it, even by straining, within either the words or the spirit of the statute.

It should also be remarked that it would seem to be entirely clear from the language of the statute that it was the design of its framers to limit the fees which should be taxable to fees for professional services as contradistinguished from artistic or mechanical services. The services mentioned in that part of the statute now under consideration, and for which fees at the rates specified may be taxed, are all professional services such as a solicitor or counsel can alone render. No provision is made for the taxation of any other kind of services, and yet it is a fact, which I suppose almost every professional gentleman of expe rience has had demonstrated in his own practice, that there are cases in which a model or a photograph is much more useful as a means of elucidation than either an affidavit or a map. But the right to tax does not at all depend on the utility of the thing sought to be treated as an affidavit, nor on the fairness of the scheme under which the number of folios it shall be considered to represent is ascertained, but entirely on the fact whether or not it is professional work or service of the kind which the statute says shall be taxable. If it is not it cannot be taxed.

But it is said that the method of taxation adopted in this case ought to be sustained on the ground of inveterate practice or long-continued usage. A gentleman connected with the clerk's office for many years, and who is perhaps more familiar with its customs than any other person, says after investigation, that the practice of taxing maps as affidavits, according to the method pursued in this case, has prevailed in the office without objection for over thirty years, but how or with whom it originated I am not informed. It has never received judicial sanction. There is nothing to support it, except it appears that many years ago the person who happened to be clerk adopted it, and that since then his successors in office have followed it, and from its adoption to the present time, counsel, whose client's interests were inju riously affected by it, have submitted to it. The acquiescence of counsel is the only thing which, in my judgment, entitles the practice to consideration. The opinion of the profession-and by that I mean a cor. currence of judgment by the leading minds of the profession—is always entitled to great respect. An opinion of this kind, as to the meaning of a statute, formed so recently after the passage of the statute as to be entitled to be regarded as a contemporaneous construction, and subsequently acted on, for many years, as its true exposition, in the transaction of the business to which the statute relates, will sometimes be adopted by the courts, although it may appear that such construction does not stand in strict accord with what the court may believe to have been the actual legislative intent. This however is rarely done, except under the pressure of a supreme necessity, as where valuable rights, resulting from the erroneous construction, must be destroyed or seriously impaired, if it be not done. Communis error facit jus is a recognized maxim of the law, but it is seldom applied in the administration of justice, and never without the exercise of the utmost caution. Broom Leg. Max. 169. But it is plain, I think, that the error un der consideration is not of the kind which is entitled to adoption by the courts. No rights will be lost or