as just stated, an acquittal was sustained by a majority of the court, which held that it was a question of fact to be determined by a trial court whether or not what he did was pretending to be a physician authorized to treat a patient. The Court intimated that the person simply pretended to be what he really was, namely, a doctor of medicine of the Metropolitan Medical College of New York.

STATE AND LOCAL BOARDS OF HEALTH-POWERS

GOVERNED BY SPECIAL STATUTES.

In addition to the rules and regulations prescribed by the general statutes, modern sanitary science has developed so broadly throughout most of the civilized states and countries, that the different governments have established state boards of health, and in many instances local boards of health, the latter being limited in their authority and operation to specific municipal divisions, to which boards the government has committed the power to pass certain sanitary rules and regulations, which rules and regulations may have an important bearing upon and relation to the practice of medicine and surgery. The jurisdiction and powers of these boards are to be found in the special statutes creating them, and prescribing their powers and duties, and cannot be treated of extensively here. They are considered further under the special subjects to which they relate.

Physicians Bound to Report Contagious Cases and Not Liable for Mistaken Report.-The duty promptly to report' to

1 It has been held that the act of a physician in reporting to a healthboard in good faith that his patient is suffering from small-pox, is not actionable. Brown v. Purdy, 8 N. Y. St. Rep., 143. The Court said (per Sedgwick, J.): "In order to give the public the protection due to it, according to the intention of the statute, any physician that possesses in fact an opinion that a patient has a contagious disease. is bound to report the case, whether he has or has not used ordinary professional skill and knowledge. A physician of skill in everything but cases of small-pox, which happily are not numerous, may, unexpect edly to himself, be called to a case

which presents to him the appearance of small-pox. It may be said that he may call in counsel. It cannot, however, be said that private counsel should be called in rather than such as the law has appointed. Certainly, if he really thinks the case to be one of smallpox, it is his duty to communicate his opinion to the public authori ties, who furnish skilled physicians peculiarly competent to pass upon the case. They are the experts the law points out for the physician. The attendance of these experts upon a patient can cause no injury, and thereafter the responsibility rests solely upon the public officer."

As to how far the decision of an

boards of health every case of contagious or infectious disease is manifest.

CHAPTER III.

OF THE CONTRACTUAL RELATION BETWEEN PHYSICIAN AND PATIENT.

EMPLOYMENT AND RIGHTS IN REGARD TO COMPENSATION.

Legal Character of the Employment.-Whatever may have been the theories of the Roman civil law, and following it of the early English common law, as to the character of the employment of physicians and other professional men, it is now so well settled that the reciprocal duties and obligations arising between physician and patient, or attorney and client, and the like, are to be classed under and governed by the law of contracts, that any extended discussion of these theories is unnecessary here.' Mr. Ordronaux, in the second chapter of his interesting work on the "Jurisprudence of Medicine," has considered them fully, and has quoted amply from the books of the earlier and later text-writers, and from the expressions of the judges, to show what these theories and rules were; and he and all later authorities agree that the ancient notion, that professional services are always gratuitous unless a special contract to pay for them is made, has long been abandoned. He observes (pp. 13 and 14): "But in our day the increase in the number of professional practitioners, and their exclusive devotion to a special class of services as a means of living, has essentially modified the practical character of the contracts with their patrons. Although in legal acceptation a mandate, yet from force of circumstances growing out of an altered state of society, the mandate is practically changed into a contract of hire (locatio operis). This doubtless reduces professions to the status of artisanship, and places them on a par with manual labor, conjoined to the special skill of a particular calling. But it also simplifies the contract, removes it from the category of innominate or imperfect obligations, requiring the 1 Consult, as to this, Parsons on "Contracts," vol. ii., p. 56.

intervention of legal fictions to furnish a means for their enforcement, and brings it within the pale of consensual agreements based upon a sufficient consideration."

The physician's right to sue on contract in England was declared by legislative enactment by Chap. 90 (Sec. 31), 21 and 22 Victoria. It has never been denied in the United States. Adams v. Stephens, 26 Wend., 451-455.

Physicians' and Surgeons' Service in a Sense Voluntary. -Though it is true, as in the case of many other doctrines of ancient law which were formulated under social conditions far different from those which prevail in modern times, that these rules and theories have long since lost their potency as distinct rules governing actions at law, nevertheless the legal aspect of the peculiar relationship between physician and patient is still affected by the idea that the service on the part of the physician is voluntary-that is, the physician or surgeon is not bound to come and perform services whenever or wherever he is called. He is at liberty to refuse any and every patient who attempts to employ him.

Patients may Cease Employing at Any Time, unless there is a Contract for a Certain Period.-And when he is employed, the patient may at any moment discharge him, without incurring liability in damages, unless a special contract has been entered into between them that the services shall be rendered for a fixed period.

Service once Begun by Physician must be Continued until Notice of Intention to Cease is Given by Him.-If, however, the services are begun, they must be continued until notice has been given of the intention to discontinue them, and a reasonable time allowed the patient to obtain the services of another person. The reasons for this rule will be considered

more fully below.

Contract either Express or Implied.-The contract between the physician and patient may be an express one, that is, one in which all the terms are agreed upon or expressed between the parties, or it may be what is called an implied contract, or one in which the patient, or another person, simply calls on the physician or surgeon to come and perform services, and neither party specifically stipulates or agrees upon any of the terms of the employment.

Express Contracts may Include any Stipulation Not Contrary to Public Policy.-In the case of an express contract the agreement of the parties settles and determines their mutual obligations, whether it be written or merely verbal. And an express contract may also be made in such a form that certain conditions are required to be performed by the physician before he becomes entitled to any compensation for his services. It may also embody an agreement that the patient shall pay certain sums at certain times as the treatment goes on, or that no other physicians shall be employed without the consent of the attending physician, or if so employed that they shall be under the direction of the attending physician.

Almost anything may be stipulated which is not contrary to public policy, and a breach of any such stipulation entitles the aggrieved party to rescind the contract and cease from performing it.'

Qualifications of the Rule that Express Contracts may Include any Stipulation.-Some qualifications of this rule of law must, however, be noted. A breach by the patient of any one of these stipulations would entitle the physician to treat the engagement as terminated like any other contractual relation, and to bring his action for a recovery for services rendered up to the time of the breach; but it is doubtful whether he would have any action for damages for failure to permit him to perform further services. This doubt arises from the legal doctrine, herein before referred to, that a patient is always at liberty to dismiss his physician at any time without notice, and without assigning any cause, which recognizes and grows out of the fact that if the trust and confidence of the patient are destroyed, or impaired, no matter how unreasonably or unjustly, the relation between them must thereafter be unprofitable to both parties, and dangerous to the patient. On the other hand there is little doubt that whenever an express contract is made by a physician to treat a patient for a certain length of time for a particular disease or injury, the physician is not at liberty arbitrarily to terminate that relation or his connection.

'Of course in those States or countries where statutes of fraud render void all contracts for personal services for a longer period than one year (or any period named in the

statute) which are not in writing and duly signed, contracts should be drawn and entered into with regard to those statutes.