WHEREAS there was this day read at the Board, the humble memorial of Sir

LUCAS PEPYS, baronet, Physician to His Majesty, and President of the

College or Commonality of the Faculty of Physic in _London_, setting

forth, that the said President and College have, with great care, pains,

and industry, revised, corrected, and reformed a book by them formerly

published, intituled _Pharmacopœia Collegii Regalis Medicorum

Londinensis_, prescribing and directing the manner of preparing all

sorts of medicines therein contained, together with the true weights and

measures by which they ought to be made: which book is now perfected and

ready to be published, and, it is conceived, will contribute to the

public good of His Majesty’s subjects, by preventing all deceits,

differences, and uncertainties in making or compounding of medicines,

if, for the future, the manner and form prescribed therein should be

practised by Apothecaries and others in their compositions of medicines:

the Memorialist therefore most humbly prays, that His Majesty will be

graciously pleased to enforce the observance thereof in such manner as

to His Majesty shall seem meet:—His Majesty this day took the said

memorial into His Royal consideration, and being desirous to provide in

all cases for the common good of his people, and being persuaded that

the establishing of the general use of the said book may tend to the

prevention of such deceits in the making and compounding of medicines,

wherein the lives and health of His Majesty’s subjects are so highly

concerned, hath therefore thought fit, by and with the advice of His

Privy Council, hereby to notify to all Apothecaries and others

concerned, to the intent they may not pretend ignorance thereof, that

the said book, called _Pharmacopœia Collegii Regalis Medicorum

Londinensis_, is perfected and ready to be published: and His Majesty

doth therefore strictly require, charge and command all singular

Apothecaries and others, whose business it is to compound medicines, or

distil oils or waters, or make other extracts, within any part of His

Majesty’s kingdom of _Great Britain_ called _England_, dominion of

_Wales_, or town of _Berwick-upon-Tweed_, that they, and every of them,

immediately after the said _Pharmacopœia Collegii Regalis Medicorum

Londinensis_ shall be printed and published, do not compound or make any

medicine or medicinal receipt or prescription, or distil any oil or

waters, or make other extracts that are or shall be in the said

_Pharmacopœia Collegii Regalis Medicorum Londinensis_ mentioned or

named, or in any other manner or form than is or shall be directed,

prescribed, and set down in the said book, and according to the weights

and measures that are or shall be therein limited, except it shall be by

the special direction or prescription of some learned Physician in that

behalf. And His Majesty doth hereby declare, that the offenders to the

contrary, shall not only incur His Majesty’s just displeasure, but be

proceeded against for such their contempt and offences, according to the

utmost severity of law.

STEPH: COTTERELL.

-------

33 _Geo._ 2.—_Burrow’s Reports._

Rex _vers._ Master and Wardens of the Company of Surgeons in London.

This was a cause that stood in the Crown-Paper, upon a Return to a

_Mandamus_ directed to the Master and Wardens of the Company of SURGEONS

of _London_: Reciting a Custom in the said City, “That every Freeman of

the said City, using and exercising the Art, Science, or Mystery of

_Surgery_ within the said City, hath _a Right_, in respect thereof, _to

have and take_ APPRENTICES, of the age of 14 years or upwards, to be

educated and instructed in the said Art, Science, or Mystery, for the

space of 7 years; which said _Apprentices_ have been used and accustomed

to be ADMITTED _and_ BOUND _in the presence or with the consent of the

Master and Wardens or some of them_;” And reciting that _Richard Guy_, a

Freeman of the said City, and also one of the Freemen of the said

Company of Surgeons of the said City, being desirous of taking _Melmoth

Guy_, his son, aged 15 years, to be his Apprentice for the Term of 7

years, to be educated and instructed in the said Art, Science, or

Mystery of Surgery, had often offered the said _Melmoth Guy_ to be

admitted and bound, before the said Master and Wardens or some of them,

his said Apprentice for the Term of 7 years, in the said Art, Science,

or Mystery, according to the said custom; and that the said _Melmoth

Guy_ had also often offered himself to them or some of them, to be

admitted and bound before them or some of them, an Apprentice to the

said _Richard Guy_ for the said Term, in the said Art, Science, or

Mystery; and that the said Master and Wardens had _not permitted_ the

said _Melmoth Guy_ to be bound Apprentice to the said _Richard Guy_, for

the Term of 7 years, before them or any of them, but have altogether

refused and still refuse so to do; and commanding them, immediately and

without delay, in due manner to _permit_ the said _Melmoth Guy_ to be

ADMITTED and BOUND, before them or some of them, _an Apprentice_ to the

said _Richard Guy_, for the Term aforesaid, in the said Art, Science, or

Mystery according to the said custom, or signify cause to the contrary.

The Return of the Master and Wardens admits the whole of the custom and

facts, to be as they are alledged in the Writ. But they further certify

and return, That long before the said _Richard Guy_ offered his said son

_Melmoth_, or the said _Melmoth_ offered himself to them or any of them,

to be admitted and bound before them or any of them, an Apprentice for

the said Term of 7 years, in the said Art, Science, or Mystery of

Surgery, according to the custom aforesaid; and after the making of a

certain Act of Parliament intitled “An Act for making the Surgeons of

_London_, and the Barbers of _London_, two separate and distinct

Corporations;” to wit, on the 7th day of _April_ in the Year of our Lord

1748, _at Stationers-hall_ in _London_ aforesaid; _John Freke_, then and

there being Master of the said Company of _Surgeons_, and _William Pyle_

and _Legard Sparham_, then being two of the Governors of the said

Company of Surgeons, before that time duly elected chosen appointed and

sworn into their said respective offices; and also _John Ranby_ esq.

_Cæsar Hawkins_ esq. _William Petty_ esq. _Joseph Sandford_, _William

Cheseldon_ esq. _James Hicks_, _Peter Sainthill_, _Noah Roul_, _John

Westbrook_, _William Singleton_, _James Phillips_, _Joseph Webb_, _Mark

Hawkins_, _Christopher Fullagar_, _Edward Nourse_, _John Girle_ esq. and

_John Townsend_, being then and there Nine and more of the Members of

the Court of Assistants of the said Company of Surgeons before that time

duly elected chosen appointed and sworn to be of the said Court of

Assistants, did hold a Court and Assembly, at _Stationers-hall London_

aforesaid, in order to treat and consult about and concerning the Rule

Order State and Government of the said Company of Surgeons; and that the

said _John Freke_, so being then and there Master of the said Company of

Surgeons, and the said _William Pyle_ and _Legard Sparham_, so being

then and there two of the said Governors of the said Company of

Surgeons, and the said _John Ranby_ esq. _Cæsar Hawkins_ esq. &c. &c.

&c. so being then and there nine and more of the Members of the said

Court of Assistants of that Company, being all then and there duly

assembled as aforesaid, did then and there, according to the Form of the

Statute in that case made and provided, make ordain constitute and

establish a certain BYE-LAW _and_ ORDINANCE, for the Regulation

Government and Advantage of the said Company of Surgeons, in the words

following. To wit, _Item_, It is _Ordained_ “That _no Member_ of the

said Company _shall take_ any Person into his Service, _as his

Apprentice_, to be instructed in the Art or Science of Surgery, for any

shorter time than 7 years; _which person_ SHALL UNDERSTAND _the_ LATIN

_Tongue_; his ABILITY _wherein_ shall, BEFORE _his being bound_, be

_tried by the Governors or one of them_. And every Freeman of this

Company or Foreign brother shall, within one month next after his

entertainment of any Person in order to being his Apprentice, _Present_

such Person before the Governors or two of them, _at a Court to be by

them held_; and _there bind_ such Person to him _before the said

Governors_, by Indenture; upon pain of forfeiting 20l. of lawful money:

And the Clerk of the said Company SHALL NOT BIND any Person who has

_not_ been so presented and examined, upon pain of forfeiting the sum of

10_l._ of lawful money and being liable to be removed from his said

Office. And no Apprentice shall be turned over from one Master to

another, but at a Court in the Presence of the Master and Wardens or one

of them: And One Guinea, and no more, shall be paid for the same.”

Which said _Ordinance_ or _By-Law_, so made as aforesaid, after the

making thereof as aforesaid, and long before the said _Richard Guy_ had

offered the said _Melmoth_, or the said _Melmoth_ had offered himself to

be admitted and bound before them or any of them, an Apprentice to the

said _Richard Guy_, for the Term of 7 years, in the said Art Science or

Mystery of Surgery, according to the Custom aforesaid, to wit, on the

9th day of the same _April_ in the said year of our Lord 1748, was

examined approved and allowed by the Right Honourable _Philip_ Lord

_Hardwicke_ the then Lord Chancellor of _Great Britain_, and by Sir

_William Lee_ Knt. the then Lord Chief Justice of His Majesty’s Court of

King’s Bench, and Sir _John Willes_ Knt. the then Lord Chief Justice of

His Majesty’s Court of Common Bench, according to the Form of the

Statute in that Case made and provided.

They further return That the said Ordinance or By-Law, so made examined

approved and allowed as aforesaid, hath ever since the making

examination approbation and allowance thereof as aforesaid, been, and

now is in full force and effect, and in no wise annulled revoked and

vacated.

They then return That after the making examination approbation and

allowance of the said Ordinance or By-Law as aforesaid, and before the

Issuing of this Writ, to wit, on the 3d of _May_ in the Year of our Lord

1759, at a certain Court then holden at _Surgeons Hall_ in the _Old

Bailey London_, by _Mark Hawkins_ then Master, and _Christopher

Fullagar_ and _Edward Nourse_ then Governors of the said Company of

Surgeons, (They the said _Mark Hawkins_, _Christopher Fullagar_ and

_Edward Nourse_, having before that Time been duly elected chosen

appointed and sworn into their said respective Offices, according to the

Form of the Statute in that Case made and provided,) came the said

_Richard Guy_ before the said Court, and offered and presented his said

Son _Melmoth_; And the said _Melmoth_ did then and there offer himself

to the said Master and Governors then being at that Court, to be

admitted and bound, before them, an Apprentice to the said _Richard

Guy_, for the Term of 7 years, in the said Art Science or Mystery of

Surgery; And that the said _Melmoth Guy_, being so offered and presented

as aforesaid, was then and there _examined_ touching his knowledge in

the _Latin_ tongue; And his ability therein, _in Pursuance_ of the

Ordinance or By-Law aforesaid, was then and there _fairly_, _candidly_,

and _impartially_ TRIED by the said _Edward Nourse_, he the said

_Edward_ being then and there one of the Governors of the said Company

of Surgeons: And that the said _Melmoth Guy_, UPON _such his

Examination_, and _upon his Ability_ in the _Latin Tongue_ being so as

aforesaid _tried_ by the said _Edward Nourse_ (so being one of the

Governors or Wardens of the said Company as aforesaid) _was found_, NOT

_to understand_ the _Latin_ Tongue, but to be WHOLLY IGNORANT _thereof_;

and was then and there so ADJUDGED _and declared_ to be, by the said

_Edward Nourse_, on such Trial.—Wherefore the said Court could not

consent, but did then and there refuse to permit the said _Melmoth Guy_

to be admitted and bound an Apprentice to the said _Richard Guy_, for

the Term of 7 years, in the said Art Science or Mystery of Surgery,

according to the Custom aforesaid, UNTIL such Time as the said _Melmoth

should understand_ the _Latin_ Tongue, as by the aforesaid Ordinance or

By-Law is in that behalf required.

They further return expressly and positively, That the said _Melmoth

Guy_, when he was so presented and offered as aforesaid, before the

aforesaid Master and Governors or Wardens of the said Company of

Surgeons, at the said Court, by them held for the purpose herein before

in that behalf mentioned, DID NOT understand the _Latin_ Tongue: but WAS

UTTERLY IGNORANT of the same: And that the said _Melmoth Guy_ hath NOT,

at any Time before or since his being so examined and tried as to his

Ability in the _Latin_ Tongue as aforesaid, _offered himself or been

presented_ to the said Company or Governors thereof, or any one of them

for the Time being, _to be tried_ as to his ability in the _Latin_

Tongue.

And therefore they cannot permit the said _Melmoth Guy_ to be admitted

and bound before them an Apprentice to the said _Richard Guy_ for the

said Term of 7 years, in the said Art Science or Mystery of Surgery,

according to the Custom aforesaid, as by the Writ they are commanded.

Mr. _Field pro Rege_ objected and argued “That this was an

_insufficient_ Return:” For that the _By-Law_ is a _bad_ one, being made

in _Restraint of a natural general and common Right_.

The _first_ Restriction of the common Right that every Person has of

learning and exercising any Art in any Place, except where it happens to

be restrained by Custom, is the Act of 5 _Eliz._ c. 4.

The City of _London_ have indeed, _by Custom_, a Power over the Youth of

their City, and a Power of excluding Foreigners from exercising Trades

within their City.

11 _Rep._ 53. _Taylors of Ipswich Case_, shews the _general_ Law to be,

that a person ought not to be restrained in his lawful Mystery.

_Private Companies_ can not make Laws contrary to the _General_ Law or

to the _Customs_ of great Cities: though great Cities and Towns may do

so. This distinction is mentioned in 6 _Mod._ 120.[176] _Cuddon_ v.

_Estwick_. And he cited the Case of _the City of London_ v. _Vanacker_,

in 1 _Ld. Raym._ 496. where _Holt_ Ch. J. said that “if the By-Law was

for the _Benefit of the City_, it would be good.”

This By-Law, therefore, is not good, without a particular Custom to

support it: for it _restrains a Common-Law Right_.

The Return does not aver that the understanding the _Latin_ Tongue _is_

a _necessary qualification_ of a Surgeon: And their Art may certainly be

performed _without_ it. At least, ’tis no objection to a young Person’s

being put out to _learn_ the Art; whatever it might be to the Admission

of a Man to _practise_ it.

Besides, “Understanding the _Latin_ Tongue,” is a very _indefinite_ and

_vague_ expression: And a very different idea of it would be conceived

by different persons; as by _Dr. Bentley_ (for instance) and by a[177]

Warden of the Surgeons Company.

Bad consequences too, may arise from this By-Law: And if so, it shall

not prevail. _Godbolt_ 254. S. C. with that of _the Taylors of Ipswich_,

(there called _The Cloth-workers of Ipswich Case_.)

If the _By-Law is bad_, this young man’s not understanding _Latin_ will

_not cure or help_ it. However, the By-Law does _not expressly forbid_

such a Person to be admitted: It is _not mandatory_, but only

_directory_.

Mr. Serjeant _Hewit contra_, was rising up, to speak in support of the

Return,

But Lord MANSFIELD said it was too plain to argue.

Whereupon, _Per Cur._

RETURN ALLOWED.

MIDWIFE’S OATH.

The Oath to be administered to a Midwife by the Bishop or his

Chancellor, when she is licensed to that office, is said to have been as

followeth. 2 _Burn Ecc. Law 469._

“You shall swear, first, that you shall be diligent and faithful and

ready to help every woman labouring with child, as well the poor as the

rich; and that in time of necessity you shall not forsake the poor woman

to go to the rich.

“_Item._ You shall neither cause nor suffer any woman to name or put any

other father to the child but only him which is the very true father

thereof indeed.

“_Item._ You shall not suffer any woman to pretend, feign, or surmise

herself to be delivered of a child, who is not indeed; neither to claim

any other woman’s child for her own.

“_Item._ You shall not suffer any woman’s child to be murdered, maimed,

or otherwise hurt, as much as you may: and so often as you shall

perceive any peril or jeopardy, either in the woman, or in the child, in

any such wise as you shall be in doubt what shall chance thereof, you

shall thenceforth in due time send for other midwives and expert women

in that faculty, and use their advice and counsel in that behalf.

“_Item._ You shall not in any wise use or exercise any manner of

witchcraft, charm, or sorcery, invocation, or other prayers, than may

stand with God’s laws and the King’s.

“_Item._ You shall not give any counsel or minister any herb, medicine,

or potion, or any other thing to any woman being with child, whereby she

should destroy or cast out that she goeth withal before her time.

“_Item._ You shall not enforce any woman being with child, by any pain

or by any ungodly ways or means, to give you any more for your pains or

labour in bringing her to bed, than they would otherwise do.

“_Item._ You shall not consent, agree, give, or keep counsel, that any

woman be delivered secretly of that which she goeth with, but in the

presence of two or three lights ready.

“_Item._ You shall be secret, and not open any matter appertaining to

your office, in the presence of any man, unless necessity, or great

urgent cause do constrain you so to do.

“_Item._ If any child be dead born you yourself shall see it buried in

such secret place, as neither hog, or dog, nor any other beast may come

unto it; and in such sort done, as it be not found or perceived, as much

as you may: and that you shall not suffer any such child to be cast into

the jaques or any other inconvenient place.

“_Item._ If you shall know any midwife using or doing any thing contrary

to any of the premises, or in any otherwise than shall be seemly or

convenient, you shall forthwith detect, open, or shew the same to me or

my Chancellor for the time being.

“_Item._ You shall use yourself in honest behaviour unto the woman,

being lawfully admitted to the room and office of Midwife, in all things

accordingly.

“_Item._ That you shall truly present to myself or my Chancellor, all

such women as you shall know from time to time to occupy and exercise

the room of a midwife within my aforesaid diocese and jurisdiction of ——

without any licence and admission.

“_Item._ You shall not make or assign any deputy or deputies, to

exercise or occupy under you in your absence the office or room of a

Midwife, but such as you shall perfectly know to be of right honest and

discreet behaviour; and also apt, able, and having sufficient knowledge

and experience to exercise the said room and office.

“_Item._ You shall not be privy, or consent, that any priest or other

party shall in your absence, or in your company, or of your knowledge or

sufferance, baptize any child by any mass, latin service, or prayers,

than such as are appointed by the laws of the Church of England; neither

shall you consent that any child born by any woman who shall be

delivered by you shall be carried away without being baptized in the

parish by the ordinary minister where the said child is born, unless it

be in case of necessity baptized privately according to the Book of

Common Prayer: but you shall forthwith, upon understanding thereof,

either give knowledge to me the said Bishop, or my Chancellor for the

time being.

“All which articles and charge you shall faithfully observe and keep: So

help you God, and by the contents of this book.”

(Book of Oaths.)

-------

Certificate of the College of Physicians concerning the Midwives of

London.

May it please your Lordships,

Upon consideration taken of this petition hereunto annexed, presented

unto the President and College of Physicians by the Midwives, We, the

College of Physicians, conceiving the said complaint to be grounded upon

just grievance, and to conduce to a general good, in the timely

prevention of so growing an inconvenience, have particularly informed

ourselves concerning the said business, and do certify that the like

project was formerly attempted by another, which is now intended by the

doctour, and therefore was referred by _K. James_, of blessed memory, to

the Lords of the Council, and by their Lordships to the College of

Physicians, to certify their opinion thereof; who upon mature

deliberation made report to their Lordships of the unfitness of the said

proposition, there being no such custom ever used either here or in any

other kingdom, Wherefore the same was rejected and died. And whereas we

understand that the said Doctour doth ground his complaint upon the

insufficiency of Midwives, whom he would undertake to teach, though

licensed by your Lordship’s officers, whom we do believe to be as

careful in admitting of Midwives as they are in other kingdoms; only we

are informed that divers do practise without licence, and some are

deputies to others, through whom we probably conceive some abuses to

grow, because their abilities and honesty of lives and conversation are

not testified upon oath as others are who are licenced. But for adding

sufficiently to them by the Doctour’s instruction, he is not otherwise

able to instruct them than any other the meanest Fellow of our College,

unless he understand it by the use of iron instruments, which Physicians

and Chirurgeons may practice if they please; and some do and have done

with as good success and dexterity as himself, and therefore there is no

necessity of a sole dependance upon him. And it being true that is

reported by the Midwives, the Doctour doth often refuse to come to the

poor, they being not able to pay him according to his demands; and for

the rich he denies them his help until he hath first bargained for great

rewards; which besides that they are in themselves dishonest, covetous,

and unconscionable courses, they are also contrary to the laws and

statutes of our College, to which by oath he is bound. We therefore for

this and other reasons we can alledge, conceive his suit to be

unreasonable and inconvenient. And so do humbly leave the same to your

Lordships’ grave judgments, unto whom his Majesty referred the

consideration thereof.

(Goodall’s Proceedings of the College against Empiricks, p. 465.)

59 _Geo._ 3. _c._ 41.

An Act to establish Regulations for preventing Contagious Diseases in

_Ireland_. 14th _June_ 1819.

Whereas it has become highly expedient to provide for and secure

constant attention to the health and comforts of the inhabitants of

_Ireland_, and for the prevention of contagious disease, more especially

in the cities and great towns thereof; and that for that purpose

officers of health should be annually appointed in all cities and large

towns, and that such officers should also be appointed in such towns,

parishes, and villages in the country, as shall think it proper or

necessary to adopt such a measure; be it therefore enacted by the King’s

most excellent Majesty, by and with the advice and consent of the Lords

Spiritual and Temporal, and Commons, in this present Parliament

assembled, and by the authority of the same, That within one calendar

month next after the passing of this Act, and within one calendar month

after the twenty-fifth day of _March_ in the year one thousand eight

hundred and twenty, and in every subsequent year, in every city and town

in _Ireland_, which shall contain one thousand inhabitants, or upwards;

and in every city and large town where the Lord Lieutenant, or other

Chief Governor or Governors of _Ireland_, shall think fit to direct that

this Act shall be carried into effect, the inhabitant householders of

each and every parish in such city or town, assembled in vestry, shall

and they are hereby required to elect and appoint any number of persons

not less than two, and not more than five, to be officers of health for

such parish, for the year ending on the twenty-fifth day of _March_ next

after such election, and until new officers of health shall be in like

manner appointed for such parish for the year ensuing.

II. And be it further enacted, That such officers of health, so to be

elected and appointed, shall act in the execution of this Act without

any salary, fee, or reward whatsoever; and that the expenses to be

incurred by such officers in the execution of their Duties under this

Act, not exceeding such sums as shall be specified and determined on,

and limited and directed at the vestry to be assembled for the choice of

such officers, or at any subsequent vestry to be called by the said

officers, shall be raised and levied on the inhabitants of such parish,

in such manner and form as other parochial assessments are raised and

levied, and shall by the said officers of health be applied to the

purposes of this Act; and the expenditure thereof shall be accounted for

by the said officers in such manner as other parochial assessments are

accounted for, and either at such times as other assessments are

accounted for according to law, or at such other times and periods of

the year, and as often from time to time as shall be directed at the

vestry to be assembled for the appointment of such officers, or at any

other vestry to be called by two inhabitants of such parish; and that

copies of all such accounts shall once in every year, before the

twenty-fifth day of _April_ in each year, be transmitted by such

officers of health to such public officer, or office or place in

_Dublin_, as shall be from time to time directed by the Lord Lieutenant,

or other Chief Governor or Governors of _Ireland_ for the time being, or

his or their Chief Secretary.

III. And be it further enacted, That it shall and may be lawful for the

inhabitant householders of any parish, town, or place whatever, in

vestry assembled, in any part of _Ireland_, to appoint such officers of

health for such parish, in case they shall think fit and expedient so to

do; and to raise such sum or sums of money, to be levied and accounted

as directed by this Act, in like manner as by this Act is required to be

done in cities and large towns as aforesaid.

IV. Provided always, and be it enacted, That no person shall be

compelled or compellable to act or serve as such officer of health, in

any parish or place, for any longer term than one year, nor to act or

serve as such officer for any year commencing within three years after

the end of any year for which he shall have served as aforesaid.

V. Provided also, and be it enacted, That it shall and may be lawful for

the inhabitant householders of any parish in any county, city, town, or

place in _Ireland_, to elect the churchwardens of such parish for the

time being to be officers of health under this Act, in case they shall

think fit so to do; and it shall be lawful for such churchwardens, and

they are hereby authorized and required, to act as such officers of

health accordingly, under the present provisions of this Act.

VI. Provided also, and be it enacted, That where any city or town as

aforesaid, containing one thousand inhabitants, or where the Lord

Lieutenant or other Chief Governor or Governors of _Ireland_ shall

direct this Act to be carried into execution, in case the inhabitant

householders in any parish or parishes in such city or town shall

neglect or refuse to elect and appoint such officers of health, within

such time as is required by this Act, or as shall be required by any

order of such Lord Lieutenant, or other Chief Governor or Governors, it

shall and may be lawful for the Justices of the Peace assembled at the

Quarter Sessions, or any adjournment thereof, for the county, city, or

town within which such parish shall be situate, and the said Justices

are hereby authorized and required, to appoint such officers of health

in and for such parish, and also at the same time to appoint and limit

what sum shall be raised by assessment on such parish for the purposes

of this Act, and such sum shall and may be raised and levied

accordingly, in like manner as any other parish assessments, and as if

the same had been authorised by the vestries of such parishes, and shall

be applied and accounted for in the manner herein before directed.

VII. And be it further enacted, That it shall and may be lawful for any

one or more of the persons so to be appointed officers of health, and he

and they is and are hereby authorized, empowered, and required to cause

and direct all streets and lanes, and all yards and courts adjoining

thereto, and all houses let in several tenements and room-keepers, and

the yards, gardens, or places belonging to such houses, to be cleansed

and purified, and all nuisances prejudicial to health to be removed

therefrom; and all public sewers to be cleansed, and where necessary, to

be covered over, and all lodgments of standing water to be filled up or

drained off; and also to cause and direct all other matters and things

to be done for the ventilation, fumigation, and cleansing of any house

whatever, in which fever or other contagious distemper shall have

occurred, and for the washing and purifying the persons and clothes of

the inhabitants of every such house, as shall appear to any such officer

of health to be indispensably necessary for the preservation and

security of the inhabitants of such parish against the danger of

contagion, unless due precautions shall have previously been taken for

such purposes by the inhabitants of such house; and it shall be lawful

for all constables and peace officers, and they are hereby authorized,

empowered, and required, to be aiding and assisting to such officers of

health in the doing all matters and things whatsoever in the execution

of this Act.

VIII. And be it further enacted, That in any parish or parishes in any

city or town where any such officers of health shall be appointed as

aforesaid, and where no power or authority is or shall be vested in or

given to Magistrates or Corporation of such city or town, to regulate

the sweeping and cleansing of the streets therein, and the collecting

and disposing of the dirt, dung, and filth of the said streets, and also

in any city or town whatever, where the scavengers or other persons who

shall be entrusted with or contract for the cleansing and sweeping of

the streets, under the direction of the Magistrates or Corporation or

not, shall neglect or omit to cleanse and sweep the streets and lanes of

such city or town, twice at least in every week, it shall and may be

lawful for such officers of health to cause and direct such streets to

be swept and cleansed, and the dirt, dung, and filth collected from the

same to be sold and disposed of, and the produce thereof to be applied

for the purposes of this Act, and in diminution of the charge on the

parish for which such officers shall be appointed: provided always, that

in all cases where the Magistrates or Corporation of any city or town

have or shall have power and authority to regulate the sweeping or

cleansing of the streets, or where any scavenger or other person shall

be appointed or shall have contracted for that purpose, the said

officers of health shall give twenty-four hours notice to the chief

magistrate of such city or town, and to the scavenger or other person

contracting for the cleansing of such streets, of the neglect or

omission to sweep and cleanse the same; and that at the expiration of

such twenty-four hours, in case the said streets shall not be duly swept

and cleansed, it shall be lawful for the said officers of health to

cause the same to be swept and cleansed, and the produce thereof to be

disposed of as aforesaid, any act, charter, law, usage or custom to the

contrary notwithstanding.

IX. And for the preventing the danger of contagion and other evils, from

the unrestrained intercourse of strolling beggars, vagabonds, and idle

poor persons seeking relief; be it enacted, That from and after the

passing of this Act, it shall and may be lawful for any one Justice of

Peace within his jurisdiction, or any churchwarden of any parish in any

city, town, or place in _Ireland_, or for any officer of health

appointed in any parish in pursuance of this Act, and they are hereby

respectively empowered and required, to apprehend all idle poor persons,

men, women, or children, and all persons who may be found begging or

seeking relief, or strolling or wandering as vagabonds within any parish

or place, and to direct and cause all such idle persons, beggars, and

vagabonds to be removed and conveyed out of and from such parish and

place, in such manner and to such place as the nature of the case may

require; and it shall and may be lawful for any such Justice of the

Peace, upon his own view, or upon the complaint of any churchwarden or

officer of health to commit any such strolling beggar or vagabond, or

idle poor person, to any Bridewell or House of Correction, or other

public place of confinement, for any time not exceeding twenty-four

hours previous to their removal or departure out of such parish; and it

shall and may be lawful for any churchwarden or officer of health in

such parish, during such period of twenty-four hours, to cause the

persons and clothes of such idle poor persons, beggars, or vagabonds so

committed, to be washed and cleansed; and it shall be lawful for the

Justices of any county, city, or town assembled at any Quarter Sessions

or adjournment thereof, to constitute and appoint any suitable

unoccupied building to be a Bridewell or place of confinement for such

idle persons, beggars, and vagabonds, with the consent and approbation

of the owner of such house or building, and to apply to and agree with

such owner for such purpose accordingly; and every beadle, constable,

and peace officer within their respective districts or jurisdictions,

shall be and are hereby required to be assistant to the said Justices of

Peace, churchwardens, and officers of health, in such apprehension, and

confinement, and treatment of such idle poor persons, beggars, and

vagabonds, pursuant to the provisions of this Act.

X. And be it further enacted, That if any person or persons shall resist

or oppose any Justice of Peace, churchwarden, or officer of health, in

the execution of the powers of this Act, or in the doing or performing

of any matter or thing in the execution of this Act, every such person

or persons so guilty of resisting or opposing shall, on conviction

thereof before any two Justices of Peace or Magistrates within their

jurisdiction, on the oath or affirmation of any one or more credible

witness, or on the confession of the party so offending, incur such

penalty, not less than ten shillings nor more than five pounds, as such

Justices of Peace or Magistrates shall in their discretion think proper

to adjudge and inflict; or in failure of making payment of such fine,

such offenders shall and may be committed to the Common Gaol or House of

Correction for any time not exceeding three calendar months; and no such

conviction shall be quashed for informality, nor shall be removed or

removable by _certiorari_ or otherwise, nor subject to any appeal

whatever.

XI. And be it further enacted, That if any action shall be brought

against any person or persons for any thing done in the execution of any

of the powers or duties by this act given or required, the defendant or

defendants may in every such suit plead the general issue, and give this

act and the special matter in evidence; and in every case where the

plaintiff or plaintiffs in such suit shall fail, the court in which such

suit shall be carried on shall award costs to the defendant or

defendants.

-------

14 _Geo._ 3. _c._ 49.

An Act for regulating Mad-Houses.

Whereas, many great and dangerous abuses frequently arise from the

present state of Houses kept for the reception of Lunaticks, for want of

regulations with respect to the persons keeping such houses, the

admission of Patients into them, and the Visitation by proper persons of

the said Houses and Patients: And whereas the law, as it now stands, is

insufficient for preventing or discovering such abuses; may it therefore

please your Majesty that it may be enacted; and be it enacted by the

King’s most Excellent Majesty, by and with the advice and consent of the

Lords Spiritual and Temporal, and Commons, in this present Parliament

assembled, and by the authority of the same, That, from and after the

Twentieth day of November One thousand seven hundred and seventy-four,

if any person or persons, in that part of _Great Britain_ called

_England_, the dominion of _Wales_, or town of _Berwick upon Tweed_,

shall, upon any pretence whatsoever, conceal, harbour, entertain, or

confine, in any house or place, kept for the reception of Lunaticks,

more than one Lunatick, at any one time, without having such Licence for

that purpose as is herein-after directed, (except such Lunaticks as are

committed by the Lord High Chancellor of _Great Britain_, or Lord

Keeper, or Commissioners for the Custody of the Great Seal for the time

being), every such person shall, for every such offence, forfeit and pay

the sum of Five hundred Pounds.

And, in order that proper persons may be appointed for visiting such

houses as shall be licenced and kept for the reception of Lunaticks,

within the cities of _London_ and _Westminster_, and within seven miles

of the same, and within the county of _Middlesex_, be it further enacted

by the authority aforesaid, That the President and Fellows of the Royal

College of Physicians in _London_ for the time being, at a general

meeting of the said College, to be held upon the last day of

_September_, or if that day falls upon Sunday, then upon the first day

of _October_, in every year, shall elect Five Fellows of the said

College for granting such Licences as aforesaid, within the said cities

of _London_ and _Westminster_, and within seven miles of the same, and

within the said county of _Middlesex_, according to the directions of

this act; and the said Five Fellows, so elected, shall be and are hereby

declared to be, Commissioners for granting such Licences within the

limits aforesaid, for the year then next ensuing; provided that two, at

least, of the said Fellows, to be so elected, shall be persons who have

not acted as Commissioners for the preceding year; and that no person

whatsoever shall be capable of being elected, or of acting as a

Commissioner, for more than three years successively.

And be it further enacted, That in case, at any time of election there

shall not be found a sufficient number of Fellows qualified or willing

to act as Commissioners, the said President and Fellows are hereby

required, upon every such deficiency, to elect one or more from among

the Licenciates to supply the same.

And be it further enacted by the authority aforesaid, That as often as

any of the Commissioners, to be elected as aforesaid, shall die, or

refuse to act, the said President is hereby required to call a meeting

of the said Fellows, within fourteen days next after such death or

refusal shall be known to the said President, in order to elect a

Commissioner in the room of every Commissioner who shall so die, or

refuse to act; and every Commissioner so to be elected, shall be, and is

hereby vested with the same power and authority, in all respects

whatsoever, as the Commissioner in whose place he shall be chosen was

vested with.

And be it further enacted, That every person who shall be elected a

Commissioner to act within the cities of _London_ and _Westminster_, and

within seven miles of the same, and within the county of _Middlesex_, as

aforesaid, shall, within ten days after such election, take the

following Oath; (that is to say),

I _A. B._ do swear, That I will faithfully and impartially execute all

the trusts committed unto me, by virtue of an Act of Parliament, made

in the Fourteenth year of the reign of King _George_ the Third,

intituled, _An Act for regulating Mad-houses_; and that I will not,

directly or indirectly, give notice, or cause notice to be given to

the Keeper, or person having the care of any house or place licensed

for the reception of Lunaticks, of the time of visitation of such

house or place.

_So help me_ GOD.

Which Oath it shall and may be lawful for the President of the College

of Physicians for the time being to administer to every such

Commissioner, so to be elected as aforesaid, upon the day he shall be so

elected, or within ten days afterwards: And in case any person who shall

be elected a Commissioner as aforesaid, and who shall be summoned by the

President of the said College to attend the said President to take the

said oath, at such time as shall be mentioned in such summons, shall

refuse or neglect to attend, or attending, shall refuse to take the said

oath, he shall forfeit and pay the sum of Five Pounds, to be applied to

the use of the said College.

And be it further enacted by the authority aforesaid, That the said

Commissioners, so to be elected as aforesaid, or any three or more of

them, shall meet in the hall, or some other convenient place in the said

College, as often as they shall think fit, so as such meetings do not

interfere with the meetings of the Board of Censors, nor with any other

general meeting of the College of Physicians; and that at all meetings

of the said Commissioners to be holden for the purposes of this act, the

Commissioner who is of the longest standing in the College shall be

Chairman.

And be it further enacted, That the Treasurer of the said College for

the time being shall be the Treasurer for the purposes of this act; and

that the said Commissioners, or any three or more of them, shall at some

meeting, to be holden within fourteen days next after they shall be

elected as aforesaid, chuse and appoint a proper person to be their

Secretary for the year then ensuing; and such Secretary shall be paid

such salary or gratuity, for his trouble and attendance in the execution

of his office, by the said Treasurer, as the said Commissioners, or any

three or more of them, shall order and direct; and every such Secretary

shall, at the next meeting of the said Commissioners after he shall be

so appointed, take the following Oath:

I _A. B._ do swear, That I will faithfully execute all such trusts as

shall be committed to my charge, as Secretary to the Commissioners for

executing an Act of Parliament, made in the fourteenth Year of the

reign of King _George_ the Third, intituled, _An Act for regulating

Mad-houses_; and that I will keep secret all such matters as shall

come to my knowledge, in the execution of my office, (except when

required to divulge the same by legal authority).

_So help me_ GOD.

And be it further enacted, That the said Commissioners, or any three or

more of them, shall meet annually on the third _Wednesday_ in the month

of _October_, or within ten days afterwards, in order to grant Licences

to persons for keeping houses for the reception of Lunaticks for one

year, from the twentieth day of _November_ then next ensuing, within the

said cities of _London_ and _Westminster_, and within seven miles of the

same, and within the said county of _Middlesex_; but notice of the

place, and of the day and hour of every meeting for granting such

Licences, shall always be published three several times in the _London

Gazette_, before the day of meeting for granting any such Licences,

(which Licences they are hereby required to grant to all persons who

shall desire the same); and all Licences to be granted by the said

commissioners shall be duly stamped with a five shillings stamp, and

shall be under the hands and seals of three or more of the said

commissioners, for each of which Licences there shall be paid to the

said secretary, by the person applying to take out the same, 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 for each and every house wherein there shall be kept above

ten, the sum of fifteen pounds, and no more, over and above what shall

have been paid for the said stamp; which money shall be paid over by the

said secretary to the treasurer; and the further sum of six shillings

and eightpence, and no more shall be paid on every such licence to the

said secretary for his fee.

Provided always, That no one Licence shall authorise any person or

persons to keep more houses than one for the reception of Lunaticks; nor

shall any Licence, to be granted by virtue of this act, continue in

force for any longer time than for one year.

And be it further enacted by the authority aforesaid, That no

commissioner, to be appointed as aforesaid, shall, directly or

indirectly, during the time he shall be a commissioner, be interested in

keeping any house for the reception of Lunaticks, upon pain of

forfeiting, for such offence, the sum of fifty pounds.

And be it further enacted, That the president of the said College of

Physicians for the time being shall, and is hereby required to cause

summons to be sent to the said several commissioners, requiring them to

attend at the first meeting after they shall be appointed commissioners,

as aforesaid; all which summons shall be sent by the beadle, or such

other person belonging to the said College, as the said president shall

think proper; and shall be left at the respective houses, or usual

places of abode, of each commissioner.

Provided nevertheless, That in case any two commissioners shall, at any

time or times, think proper to call a meeting of the said commissioners,

such two commissioners may themselves cause the like notice to be given,

and to be sent, in manner aforesaid, to the other commissioners,

requiring their attendance at such time and place as shall be expressed

in such notice.

Provided always, That at all meetings of the said commissioners in the

execution of this act, in case of an equality of votes, the chairman

shall have the casting vote.

And be it further enacted, That the said commissioners, or any three or

more of them, either by themselves or with their secretary, as they

shall think fit, shall, and they are hereby required, once at least in

every year, and whenever required by the Lord High Chancellor, or Lord

Keeper, or Commissioners for the custody of the Great Seal, or by the

Lord Chief Justice of the Court of King’s Bench, or by the Lord Chief

Justice of the Court of Common Pleas, for the time being, to visit and

inspect all such houses as shall have been licensed by them, as

aforesaid, between the hours of eight and five in the day-time; and may,

in like manner, at any other time or times, within the hours aforesaid,

visit and inspect all such houses as often as they, or any three or more

of them, shall think necessary, and shall have, at all such times,

liberty and power to continue in such house, and to examine the persons

confined as Lunaticks therein, for such time as they shall think proper.

And be it further enacted, That the said commissioners, or their

secretary, shall, at every such visitation, make minutes, in writing, of

the state and condition of all such houses which they shall so 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, within one week next after such

visitation, be by the said secretary entered, by way of report, in a

register to be kept by him in the said College of Physicians for that

purpose, and the same shall be read to, and signed by, the said

commissioners, or any three or more of them, at their next meeting: but

no minute which tends to impeach the character of any house shall be so

entered, unless such minute shall have been previously signed by three

or more of the said commissioners who shall have been present at such

visitation; and in case the commissioners, upon their visitation, shall

discover any thing that, in their opinion, shall deserve censure or

animadversion, they shall, in that case, report the same: and such part

of their report, and no more, shall be hung up in Censor’s room of the

College, to be perused and inspected by any person who shall apply for

that purpose.

And be it further enacted, That in case the keeper of any house or place

for the reception of Lunaticks, within the cities of _London_ or

_Westminster_, or within seven miles distance thereof, or within the

county of _Middlesex_, shall refuse all or any of the said

commissioners, at the time of their visitation, admittance into such

house or place as aforesaid, with or without their secretary, the master

or keeper of such house or place shall, for such offence, forfeit his

licence.

And be it further enacted, That the said commissioners, or any three or

more of them, shall, from time to time, cause an exact account to be

kept of all their proceedings; and all such accounts shall be entered in

the same register as the minutes taken at their visitations are directed

to be entered as aforesaid; and the said register shall be lodged in the

College of Physicians in a strong chest or box, which said chest or box

shall be under the care of the beadle or house-keeper belonging to the

said College, and shall be carefully locked up, from time to time, by

the secretary to the said commissioners, and the key thereof kept by

such secretary; which said register shall be deemed to belong to the

said commissioners, and the key of the said chest or box shall be

delivered over to every succeeding secretary, whenever the former

secretary shall go out of office, and be kept by such succeeding

secretary in manner aforesaid, for the use of the said commissioners.

Provided always, That the president of the said College shall have

liberty to inspect the said register, from time to time, as often as he

shall think proper, provided such inspection be made at the College, and

in the presence of the secretary to the said commissioners.

And be it further enacted, That if any person shall apply to one of the

commissioners, in order to be informed whether any particular person or

persons have been confined in any of the said licensed houses, and the

said commissioners shall think it reasonable to permit such inquiry to

be made, and shall sign an order, directed to the secretary for that

purpose; he, the said secretary, is hereby required, upon the receipt of

such order, to make search upon his papers: and if it shall appear upon

such search, that the person or persons so enquired after have been

confined in any of the said houses, the said secretary shall immediately

acquaint the persons so applying with the name of the keeper in whose

house, and also the names of those by whose direction and advice, such

person or persons have been so confined.

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 the said commissioners may know when any patient is

received into any such licensed house or place, as aforesaid, be it

further enacted by the authority aforesaid, That the keeper of every

such licensed house or place within the said cities of _London_ and

_Westminster_, and within seven miles of the same, and within the said

county of _Middlesex_, is hereby required, within the space of three

days after any patient shall be received into any such licensed house or

place, (except such pauper lunaticks as shall happen to be sent there by

parish officers), to cause notice thereof to be given to the secretary

to the said commissioners, which notice shall contain the name of every

such person received as a lunatick into such house or place, the name or

names, and place or places of abode, of the person or persons by whose

direction such lunatick was sent to such house or place, and also the

name and place of abode of the physician, surgeon, or apothecary, by

whose advice such direction was given; all which notices shall be sent

sealed up, directed _To the Secretary to the Commissioners for licensing

Houses for the Reception of Lunaticks, to be left with the Beadle of the

College of Physicians in London_; all which notices the said beadle is

hereby directed to receive, and to deliver to the said secretary, within

two days after the same shall come to his hands; and the secretary is

hereby required to file and preserve all such notices, and also to

enter, or cause a copy or extract thereof to be entered, in the

register, within two days after the receipt of such notices; 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, 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._

Chorley, M. D. _v._ Bolcot, executor.

(From 4 T. R. p. 317.)

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._

Rule absolute.

-------

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 3_l_ 13_s_ 6_d_ 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.

_Curia_: 1st, It is objected that this is laid to be a joint

undertaking, and therefore it ought to be proved, and we are of opinion

that it ought; the question therefore is, whether there is any evidence

of a joint undertaking; we are of opinion there is; Mr. _Stapleton_

declines acting alone, but in concurrence with Mr. _Baker_ attends the

plaintiff every time any thing is done, and assists jointly with Mr.

_Baker_; this appears in evidence, and is sufficient, for there is no

occasion to prove an express joint contract, promise or undertaking;

when an offer is made to _Baker_ of a guinea, _Stapleton_ says, you had

better be paid all at last; they both attended plaintiff together every

time, and _Stapleton_ said, we have consulted and done for the best;

when the plaintiff complained of what they had done, _Stapleton_

considered himself as one of the persons to join in the cure of the leg,

for he put his hand on the knee when _Baker_ nodded, and then the bone

cracked; he is the original person aiding in this matter, and there is

no ground for this objection. When we consider the good character of

_Baker_, we cannot well conceive why he acted in the manner he did; but

many men very skilful in their profession have frequently acted out of

the common way for the sake of trying experiments; several of the

witnesses proved that the callous was formed, and that it was proper to

remove the plaintiff home; that he was free from pain and able to walk

with crutches; we cannot conceive what the nature of the instrument made

use of is; why did _Baker_ put it on when he said that plaintiff had

fallen into good hands, and when plaintiff only sent for him to take off

the bandage, it seems as if Mr. _Baker_ wanted to try an expedient with

this new instrument.

_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._

This was an action on the case brought by the plaintiff, a shoemaker,

against the defendant, whom he employed as a surgeon, for negligently,

ignorantly, and unskilfully reducing a dislocated elbow and fractured

arm of the plaintiff, of which he had undertaken the cure. The cause was

tried before _Heath_ J. at the last assizes at _Hertford_; and a verdict

having been given for the defendant under the direction of the learned

Judge; that direction was now impeached, and a rule _nisi_ for setting

aside the verdict and granting a new trial was moved for by _Gurney_,

upon the ground that there was evidence laid before the jury of the

_unskilful_ treatment of the plaintiff by the defendant; but that they

were told by the learned Judge, that unless _negligence_ were proved,

they could not examine into the _want of skill_: and the evidence, he

now admitted, did not substantiate the charge of _negligence_, though it

proved the want of skill. And he referred to _Slater_ v. _Baker_[178],

to shew that an action lay against a surgeon for ignorance and

unskilfulness in his profession: and to _Bull, N. P. 73._ where the

general rule is laid down, that in all cases where a damage accrues to

another by the negligence, ignorance, or misbehaviour of a person in the

duty of his trade or calling, an action on the case will lie: as if a

farrier kill my horse by bad medicines, or refuse to shoe, or prick him

in the shoeing.

The Court granted a rule _nisi_. And now, upon the Judge’s Report being

read, the case appeared to be this:

The plaintiff’s brother-in-law proved, on his behalf, that on the 2d of

_April_ 1805, the defendant attended the plaintiff, who had fallen from

a horse, and told the defendant that his arm was broken: the defendant

said that he thought the arm, which was swollen, was not broken, and

applied vinegar to it, and bound it with tape. That the plaintiff was

under the defendant’s care for ten weeks without being cured: he could

not bend his arm or work at his trade. That he then applied to Mr.

_Kingston_, another surgeon, and after some time could work, and put his

arm to his head. On cross-examination the same witness proved that the

defendant was first sent for at night, and came directly; that he

regularly attended the plaintiff every day but one till the latter

applied to Mr. _Pidcock_, another surgeon, who, about nine or ten days

after the accident, attended and assisted with the defendant in setting

the elbow. Mr. _Kingston_, the surgeon, then proved that in _July_ 1805

the plaintiff was brought to him a cripple in his arm, one bone of which

was broken obliquely below the elbow. That the plaintiff’s arm was

almost straight; he could not turn his wrist, and had no motion in his

elbow. That the witness broke the callous and set it again, and made

(what the witness himself described as) a very fine cure, which was

spoken of about the country. He imputed the failure of the defendant in

his attempt to cure the plaintiff to _negligence and carelessness_: an

apprentice boy (he said) might have known better: that the bone might

have been set within five hours after the accident; though he admitted

that the swelling, if much, must first be reduced, which might take a

fortnight. And he recommended the plaintiff to bring an action. He also

spoke to a conversation with the defendant, who considered it as a very

difficult dislocation to reduce; and said that he would make a

compensation to the plaintiff. The learned Judge told the jury that the

gist of the action was negligence; of which direct evidence might be

given; or it might be inferred by the jury, if the defendant had

proceeded without any regard to the common ordinary rules of his

profession, _That unskilfulness alone, without negligence, would not

maintain the action_. And that he was at a loss to state to the jury

what degree of skill ought to be required of a village surgeon. But

that, whether or not his direction were accurate in this respect, at any

rate the witness _Kingston_ imputed only _negligence_ and _carelessness_

to the defendant and _Pidcock_, in not discovering the fracture of the

bone of the arm when they reduced the dislocated elbow; which there was

no doubt was properly reduced: and that considering all the

circumstances of the case, he did not think that such gross negligence

was imputable to the defendant as to make him liable in damages to the

plaintiff. The report concluded by stating that the jury found a verdict

for the defendant, much to the Judge’s satisfaction; who intimated that

the vaunting language of the witness _Kingston_ must have diminished his

credit with the jury.

_Shepherd_ Serjt. and _Espinasse_ were now to have shewn cause: but

though all the Court seemed to be satisfied, as well now as when the

rule was moved for, that the action well lay for unskilfulness in the

profession of a surgeon; yet upon a revision of the evidence as

reported, they asked of the plaintiff’s counsel what evidence there was

of _want of skill_ in the defendant; _Kingston_, the surgeon, only

imputing to him _negligence_ and _carelessness_; which the learned Judge

had stated to be a ground of action, and had left to the jury for their

consideration; but which the jury had negatived; as indeed the evidence

well warranted them in doing.

_Gurney_, in support of the rule, said, that it was to be collected from

the whole of _Kingston’s_ evidence that he imputed want of skill to the

defendant; and that was shewn by the expression used by him, that an

apprentice boy might have known better. That so much skill at least was

required of a surgeon as to be able to tell whether or not an arm was

broken, or an elbow dislocated. But it was enough that the question of

want of skill was wholly withdrawn from the consideration of the jury.

Lord _Ellenborough_ C. J. The surgeon who was examined specifically

imputed the failure of the cure to _negligence_ and _carelessness_,

whatever other expression he may have used in the manner of giving his

evidence, upon which the learned Judge has commented. Therefore, however

we may differ from the learned Judge, as I certainly do, in thinking

that an ordinary degree of skill is necessary for a surgeon who

undertakes to perform surgical operations; which is proved by the case

in _Wilson_, and indeed by all analogous authorities; in the same manner

as it is necessary for every other man to have it in the course of his

employment; as the farrier who undertakes to cure any horse must have

common skill at least in his business, and that is implied in his

undertaking: and although I am ready to admit that a surgeon would be

liable for _crassa ignorantia_, and would be justly responsible in

damages for having rashly adventured upon the exercise of a profession,

without the ordinary qualification of skill, to the injury of a patient:

yet the question did not arise upon the evidence in this case; for no

want of skill was imputed to the defendant: and therefore the opinion of

the learned Judge upon that point does not affect the merits of the

verdict upon the evidence in the cause.

The other Judges concurred; and _Grose_ J. referred to 3 _Blac. Com._

(_ch._ 9. _p._ 163, 4.) as confirming the general doctrine.

Rule discharged.

APPENDIX.

Medical Jurisprudence, Volume 3 (of 3) · 第 4 / 7 章