are common from a natural right which all have, to enjoy the bene- 275 The common law was otherwise. Lord Hale, the great publicist, knew no such doctrine. Legislation did not create it. The courts felt obliged to adopt the interpretation, as a new application of an old rule, from an irresistible public necessity. The court of no State has probably ventured so far as this court has in maintaining that small streams have floatable propOur climate and erties belonging to the public use. forests, together with the interests and wants of the community, make the doctrine here reasonable-a reasonable interpretation of the law; while in some of the States, where less necessity for the doctrine exists, it is considered by their courts to be untenable, as subversive of private rights. So in handling the somewhat novel and important questions now pending before us, we are certainly at liberty to construct out of admitted legal principles such reasonable rules as will meet the requirements of the case. The importance to the public of the ice privileges within the territory before named is incomparably greater than is that of travelling on the ice. Winter river roads are of much less consequence at the present day than formerly. In the earlier days the natural ways were the only ways for travel, and upon the large ponds and lakes, and upon the rivers in remote places, the same necessity may even now exist. But at Bangor, and for some distance below, the principal area of Penobscot river from which the ice-cuttings have been for some years customarily taken, the public have no need of a way on the ice. The traveller receives much more than an equivalent for any deprivation of the natural passage, in the use of the roads on the banks of the river, at all times kept passable at the public expense. Roads over the ice are rarely suitable and passable-only occasionally so. The access to them from the shores is difficult, if not flows. Permission must be had of the riparian prodangerous, where the tide, as it does here, ebbs and These and all other public rights, and the relation that shall subsist between them, when not thereby trenching upon congressional jurisdiction, may be regulated by the Legislature. The Legislature is the trustee of the public rights for the people; and as such agent or trustee, the Legislature of this State has gone a great way in abridging an individual enjoyment of some of the common rights and privileges possessed by society, when the legislation has presumably inured to the common good. It authorized the changing of the channel of the Saco river, al-prietor to cross his land to enable one to get to the though the effect of the diversion was to impair the value of a good deal of private property (Spring v. Russell, 7 Me. 273), has allowed private interest to be subserved to the injury of other private interests, by permitting dams and mills to be erected which prevented the flow and ebb of the tide, upon the ground that the public as a whole were to be benefited thereby (Parker v. Cutler Mill-Dam Co., 20 Me. 353), has granted to a single individual the exclusive right of navigating Penobscot river above the tide with steamers for a period of twenty years, for the consideration of improvements to be made in the navigation of the river by the grantee. Moor v. Veazie, 31 Me. 360, and 32 id. 343, and 14 How. 568. These are illustrations of the legislative power in such matters. The Legislature has the constitutional authority no doubt to provide rules regulating the possession and cultivation of the ice-fields upon our navigable rivers, where the tide ebbs and flows, at all events so far as It is an error, we think, to invest the right of passthe business is carried on below low water line, and ing on the ice in all places with the same degree of imfor the adjustment of conflicting interests which may portance as that which attaches to the right of vessels It may be an offshoot of the affect that privilege. If it omits to do so, such matin navigable waters. ters necessarily become the subjects of judicial internavigable right-something akin to it—but a right of The idea of roads pretation. While the judicial is not co-extensive with a secondary or inferior degree. the legislative jurisdiction upon the questions, there over the frozen surface of rivers was never broached can be no doubt that it is within the scope of judicial authority to determine the manner in which such pub-in the old common law. It has grown up since, and lic privileges may be best enjoyed by the public, provided that any judicial regulation which may be attempted shall do no violence to existing law. The law is subject to slow and gradual growth. A remarkable instance of the development of the law is seen in the doctrine unanimously adopted by the courts in this country, that a river may be considered navigable although not affected by a flow of the tides from the sea. river without being a trespasser. The inconveniences It is should be the superior right or not, according to cir- there says: "Assuming that the defendant has as good a right to the use of the water as the plaintiff or the public generally had to the right of passage, the use of a common privilege should be such as may be most beneficial and least injurious to all who have occasion to avail themselves of it." In the present case, it must be remembered, the defendants are not defending themselves as riparian owners, for that would justify their possession only to low-water line, but as a portion of the public, partaking of a common and public right. Brastow v. Rockport Ice Co., 77 Me. 100. An unlawful obstruction to navigation, being a common nuisance, is remedial by indictment, or by abatement; or a court of equity may take jurisdiction upon an information filed by an attorney-general. Gould Waters, § 121. It would seem strange to see the ice-harvesters accused of nuisance. But nuisance exists in lawful business only where actual injury is sustained. It must be some essential injury and damage. "People living in cities and large towns must submit to some annoyance, to some inconvenience, to some injury and damage; must even yield a portion of their rights to the necessities of business." Wood Nuis. 11. In an English case it was said: "Where great works are carried on which are the means of developing the national wealth, persons must not stand on extreme rights, and bring actions for every petty annoyance." St. Helen Smelting Co. v. Tipping, 11 Jur. (N. S.) 785; reported in 116 E. C. L. 1093. In Rhodes v. Otis, 33 Ala. 578, a much-quoted case, the test of the floatability of a stream was held to be, whether fit for valuable floatage and useful to important public interests. In Wethersfield v. Humphrey, 20 Conn. 218, it was held that in order to make a stream navigable "there must be some commerce and navigation upon it which is essentially valuable." Same decision in Town of Groton v. Hurlburt, 22 Conn. 178. Navigators must endure inconveniences for the greater general good. Brown v. Town of Preston, 38 Conn. 219. To constitute nuisance, the obstruction must materially interrupt general navigation. State v. Wilson, 42 Me. 9. In Rowe v. Granite Bridge Co., 21 Pick. 344, 347, Shaw, C. J., said: "But in order to have this character it must be navigable to some purpose useful to trade or agriculture." In Attorney-General v. Woods, 108 Mass. 436, it is said that this language is applied to the capacity of the stream rather than to its uses. But the last was a case where the officers of the Commonwealth were endeavoring to prevent an act supposed to injuriously affect the harbor of Boston. It is our opinion that any occupation of the Penobscot river, within the limits now receiving our attention, for the purpose of a winter-way, would be at this day of such insignificant importance, so useless and valueless, in comparison with other public interests, that it cannot be set up to prevent or abridge the taking of ice within those limits to any extent whatever. We do not however apply the rule stated to any place where a way is commonly used across the river, connecting town or county roads, or where a ferry is established by law. Rev. Stat., ch. 20, § 7. The traveller's right, even if existing theoretically, does not under the circumstances assert itself. Reasonable use is practically no use. The same public, possessing both rights, prefer to abandon the use of the one for the much more valuable use of the other. We are aware that the law, in facilitating the enjoyment of public rights-and no private right is involved in this controversy-scans closely the grounds upon which it admits the advantage of one person to be set off against the disadvantage of another. In an early English case (Rex v. Russell, Barn. & C. 566) an extreme rule was promulgated, in later cases not fully assented to, that staiths erected in the river Tyne should not be regarded as a public nuisance, if the public benefit produced by them countervailed the prejudice done to individuals; the supposed public benefit being, that in consequence of the erections coals would be brought to the London market in better condition or for lesser price. In subsequent cases it has been maintained that the benefit to be derived from tolerating any impairment of the navigable convenience must be direct, and that the staiths in the Tyne were a remote and indirect benefit merely, and not computable as a public benefit in the sense of the term in which it should be used when considering the question of nuisance; and it has been explained that the benefit must be a public benefit to the same public; that the same public, or some part of the public, which suffers the inconvenience, must also receive the benefit; that it must be both beneficial and injurious to the public using the same waters. A satisfactory explanation of the doctrine appears in a discussion by Jessel, M. R., in Attorney-General v. Terry, L. R., 9 Ch. Div. 423, where he says: "Then it may be asked, what is the public benefit? In my view it is a benefit of a similar nature, showing that on a balance of convenience and inconvenience, the public at that place not only lose nothing, but gain something by the erection." In that case it was decided that any benefit in the way of gaining trade, to a single individual erecting a wharf in navigable waters, was too remote to be held to be for the advantage of the public generally, when the channel intruded upon was so narrow that every foot of it was wanted for navigation. In the opinion an illustration of public benefit is given, by supposing the piers of a bridge to be placed in the middle of a navigable river, thereby "to some extent, to a more or less material extent, obstructing the navigation;' but the necessity is great and the injury trifling. In that case, says the opinion, "it would be a benefit that would counterbalance the public injury." Applying the doctrine as carefully as it is guarded in the cases most widely differing from the case of Rex v. Russell, above cited, we feel assured that our conclusions are correct in sustaining the contention of the present defendants. Here the ice-gatherer and the traveller belong to the same public; have presumably interests alike; were using the same river-the same waters-though in different ways. The ice-takers were occupying the river under the natural right of dipping water therefrom, and it is as if thousands of men were simultaneously exercising the right together. The enterprise directly fosters the interests of navigation on the river. On the other hand, as we have before said, the right of travel, so far as pertaining to the navigation of the river, is, under the circumstances, at most, a secondary, theoretical right, and of no real and essential value. Even private property may be taken for public use by affording compensation. Here if the traveller is not allowed the use of the river, it is because more than compensation is supplied to him in other roads provided for his use. We think the trial was conducted upon a too liberal application of the principles which govern the use of navigable streams, and that the jury were theroby prejudiced against the defendants, to their injury. These views being accepted, it necessarily follows that this portion of the river should be considered as virtually closed during the winter against general travelling. The whole track cut over must be constantly beset with danger to a traveller who does not keep up an especial acquaintance with the condition of the ice Besides, the ice fields, after they have been staked and fenced and scraped, and in some instances con necting fields extend across the river, have so far become the property of the appropriator that an action would lie against one who disturbed his possession. People's Ins. Co. v. The Excelsior, 44 Mich. 229. At the same time the appropriators should, by suitable means, reasonably guard their fields against exposing to danger persons who may be likely to innocently intrude upon them, if such likelihood may It is not necessary in the present be seen to exist. case to inquire whether the defendant sufficiently observed such caution or not, inasmuch as we are clearly of the belief that the plaintiff's servant in charge of his team was guilty of an act of carelessness which Even if the defendants caused the plaintiff's loss. were in fault, their delinquency would be a prior act, while the servant's was a subsequent, distinct, indeThe defendants had no reason to suppendent act. pose the servant would go in the direction he did, or be heedless in his course if he were to go there. As some judge said: "One man is not required to take another man's discretion in his keeping." At all events, the defendants' act or omission was not negligence against the plaintiff; not an act which The idea is clearly exthe plaintiff can complain of. pressed in 2 Law Rev. & Quar. J. 507: “The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it." In such case defendants are not even guilty of contributory negligence; that is, their negligence does not in a legal sense contribute to it or participate in it. It is merely a passive agency, or condition or situation through or by which the accident happened; but no part of its O' Brien v. McGlinchy, 68 real and controlling cause. Me. 552, 557. The servant was hardly even a traveller on the river in the ordinary sense of the term. He was himself an operative at the ice fields. He came with his team upon the ice by crossing defendants' land, striking a travelled way which led upon the ice, along the shore, up to the field of operations he was to engage in. From a freak of his own, instead of keeping the road, as properly he should, he crossed one of defendants' fields, as properly he should not; and while attempting to go across or around another field of theirs, his team broke through the ice and was lost. The pretense is set up that the defendants had no fence as a protective barrier at the end of the field extremest from the west bank of the river to prevent the traveller from going upon the thin ice. None was needed. The exercise of ordinary care by the servant was all that was needed. There was a large ridge of snow and ice at the easterly end of the field, several feet high, thrown up by scraping the field from west to east in preparation for ice-cutting. It seems that the ice was left uncut and solid for a space of twelve or fifteen feet in width inside of the pile or ridge, in order to afford space wide enough for a pair of horses to travel upon while cutting out and handling the cakes of ice. It is a risky track for any horses, but what dangers there are upon the track are incidental to the business. The servant confesses that he was acquainted with the mode of the business; that he knew that the ice had been scraped up to the ridge of snow; knew that there might be holes and thin ice where the field had been scraped; knew that he was going upon the scraped ice; and still he recklessly undertook to conduct his team on the inside of the ridge, when there was an abundance of room to drive safely outside of it. By to be his carelessness, for which there seems rational explanation, the plaintiff's property was lost. Motion sustained. Walton, Danforth, Virgin, Libbey and Foster, JJ., concurred. HASKELL, J. I concur in the result, but I cannot agree to the reasoning of the opinion of the court, for the following reasons: The right of navigation in public waters is paramount, although they may be subjected to any other useful purpose, even though such use may temporarily impede the paramount right; but when a use blocks navigation, it must cease until the necessities of navigation be served. A vessel may be lawfully at anchor in and completely obstruct a roadstead, so long as it is not needed for passage by other vessels; but when needed the channel must be left open. The rights of passage and of anchorage are common rights, but the former, from necessity, is paramount, that both rights may be reasonably enjoyed. Both may be exercised, but neither can be lawfully destroyed. A sailing vessel, in ascending a river, may occupy the whole channel if necessary, and a steamer astern must so remain unless it may pass her safely; but when the former comes to anchor the steamer has the paramount right of passage, and the channel must be left open if possible. So a traveller on a highway has the paramount right to pass along, and teams standing and obstructing the way must move to give reasonable chance for passage. Frozen navigable waters are public highways, and the traveller ordinarily has the paramount right of passage as necessarily incident to the reasonable enjoyment of his right, but it must be exercised in common with such uses as the frozen surface of the river is adapted to. One such use is the harvesting of ice-a use that may impede travel. Both are common rights, and both may be lawfully exercised; but both cannot be enjoyed at the same spot at the same time, because the one may be there destructive of the other, so that it may be reasonable for that use, giving the larger public benefit to restrict other uses to a narrower compass, but it cannot lawfully monopolize the whole right to the utter destruction of all other rights. Ice-gathering bas become a remunerative and useful industry, and is of great benefit to the public. The nature of the business necessarily requires that it should not be subjected to a paramount right of travel that may destroy its reasonable enjoyment. Both ice gatherers and traveliers are partakers in a common right. Neither has such a paramount right as to permanently and entirely extinguish that of the other, but both may exercise their right reasonably, under all the circumstances surrounding their conduct. worn a If the public has appropriated a particular portion of the ice of a stream or pond, and has well-beaten track upon the same, would it be reasonable for the ice-gatherer to interrupt such use? So if the ice-gatherer has appropriated and marked his icefield, leaving the traveller room for passage, would it be reasonable for the traveller to go upon it and defile it? Both uses of the ice are lawful, but neither may wholly exclude the other. Both cannot have the possession and use of the same ice for different purposes, although both have a common right to it so long as it remains unappropriated by either. The taker of water from a stream may not interfere with the navigation of it, but the harvester of ice obstructs the public highway at that place, so the one can no more take the whole ice and destroy the public highway than the other without legislative authority could divert the stream and leave its bed dry and unnavigable. Courts may declare the relative rights of persons, but they cannot extinguish them. The plaintiff's servant had no need to enter upon the defendant's ice-field, and he is chargeable with notice of the dangerous character of the spot, and for his imprudence in so doing the plaintiff is not entitled to recover. ABSTRACTS OF VARIOUS RECENT DECISIONS. CRIMINAL LAW STATUTE FORNICATION—“ UNMARRIED."-Upon a trial for fornication under a statute providing that "if any unmarried man shall live and cohabit with an unmarried woman," etc., it is sufficient for the prosecution to show that at the time of the alleged offense the parties were not intermarried. It is not necessary to go further and show that they were not married to some other person. It is true that where parties are living and cohabiting together in an open and notorious manner, in the absence of any testimony to show that they were not married to each other, the presumption is that they are living together lawfully. But where the proof is that they are not married to each other, and yet are living together, to hold that the prosecution must prove further they are not guilty of another public offense, viz., adultery, by showing that they are not married to any other person, is presuming that they are guilty of adultery. It is requiring that the prosecution shall prove a negative, viz., that they are not committing adultery. When the proof has established the fact that the parties are living together unlawfully, not being married to each other, as in this case, this by itself makes out the crime of fornication. The presumption, in the absence of proof of marriage, is that persons are single and unmarried. Marriage must be proved, not presumed. Therefore when the only evidence is that the persons prosecuted are living together unlawfully, and there is no proof of marriage, this presumption attaches, and the offense is fornication. To require the prosecution to prove marriage of either of the parties to any other person is to exact proof of a negative, which would be often impossible. The means of such proof are almost wholly in the power of the party accused. Such a requirement would virtually annul the above law so far as it relates to unmarried persons, and defeat the legislative will. Mont. Sup. Ct., July 13, 1887. Territory v. Jasper. Opinion by Galbraith, J. EMINENT DOMAIN-" TAKING "7 FOR PUBLIC USE.Under the language of the California Constitution as it existed prior to 1879, where the State for public purposes turns or straightens the channel of a river where it empties into another river, so that the land on the opposite side is, five years afterward, injured or destroyed by the increased velocity of the current, such damage is not a taking of land for public use, and does not entitle the owner to compensation. It is evident that those cases (if there be such) which hold that mere consequential damage is a taking within the limitation upon the power of eminent domain, use the word in an unusual and extended sense, and the reason for such extended sense is not hard to find. Of course primarily the word was used in reference to the necessities of the government to use the property sought. But it has been held that the clause in the Constitution, "property shall not be taken without compensation," is not a grant of power, but a limitation. Therefore the State is liable only to pay for property taken for public use. Hence the meaning of the word was extended to cover cases, which though not within the letter of the limitation, were within its spirit and meaning. Most of the cases however in which it has been held that property so damaged is taken to that extent are cases of corporations engaged in the public service in the sense that they can be authorized to use the power of eminent domain to con demn land, but yet which are engaged in business for the gain and profit of their stockholders. It is merely held here that the delegation of the power of eminent domain does not relieve the corporation from ordinary liability for damages caused by carrying on its business. It was granted the power to take, because of its public utility, but that did not confer the right to damage. Though performing a public service, it is yet not the State, which only acts for the public good, and which is only responsible, as provided in the Constitution. If there can be found a case in the books which holds that under such facts as are alleged in this case the State is liable, our attention has not been called to it. The damage is plainly not the natural consequence of the work which could or ought to have been anticipated or expected as the result. It was remote and consequential-a purely incidental and unexpected effect. There was not enforced occupation of the property or interference with it. The owner was left in full possession, and there was done to the land or left upon it nothing to obstruct its use. The case of Pumpelly v. Green Bay Co., 13 Wall. 166, is most relied upon, and it is a case by which the right of the parties here may well be tested; for the opinion in that case seems to admit that the doctrine there announced, if not opposed to the current of authority upon the subject, at least modifies the rule as to the particular circumstances of that case. It is admittedly an extreme case in that direction. The court there says, speaking of this very point: "We are not aware of the numerous cases in the State courts in which the doctrine has been successfully invoked that for a consequential injury to property of the individual, arising from the prosecution of improvement of roads, streets, rivers and other highways, for the public good, there is no redress; and we do not deny that the principle is a sound one in its proper application to many injuries to property so originating. And when in the exercise of our duties here, we shall be called upon to construe other State Constitutions, we shall not be unmindful of the weight due to the decisions of the courts of those States. But we are of the opinion that the decisions referred to have gone to the uttermost limit of judicial construction in favor of this principle, and in some cases beyond it, and that it remains true that where real estate is actually invaded by superinduced additions of water, earth, sand and other material, or by having an artificial structure placed upon it, so as to effectually destroy or impair its usefulness, it is a taking." It is evident there is nothing in this case in conflict with the doctrine of Green v. Swift. In the case from 13 Wall. a dam was built, which caused the water to continuously and permanently cover the land of plaintiff. If it was physically and permanently occupied by a foreign body, placed there by defendant when the dam was built, it was easy to ascertain how much would be thus occupied. It was the natural, certain and immediate consequence of the act. The land was really used by the defendant. There was no such state of affairs here. But that court has itself declared the case of Pumpelly v. Green Bay Co. to be an extreme case, and explained, if it has not modified, its meaning. The case of Transportation Co. v. Chicago, 99 U. S. 635, was an action on the case for damages sustained by reason of the construction of a tunnel by the city, under the authority of an act of the Legislature. After saying that no action would lie at common law, the court say: "The decisions to which we have been referred were made in view of magna charta, and the restriction to be found in the Constitution of every State, that private property shall not be taken for public use without just compensation being made. But acts done in the proper exercise of governmental powers, and not directly encroaching upou private property, not exercise proper care and skill as a physician. Held correct. The rule is general, that wherever labor and services are performed at the request of another, there is an implied promise raised by the law to pay for such work and services what they are worth; and the skill and care required in doing the work, in order to de. serve compensation, is that ordinarily possessed and exercised by others in like callings. Chit. Cont. 796. The physician, like the attorney, undertakes in the practice of his profession that he is possessed of that degree of knowledge and skill which usually pertains to the other members of his profession. And the physician, in attending his patients, engages that he will use due care to discover the nature of the disease which gives occasion for his services, and in applying the usual remedies; but beyond this measure of skill and diligence the law makes no exaction. If he is to be held for results, or as a guarantor of success, it can be only in virtue of his express engagement. Smith v. Hyde, 19 Vt. 54. Ordronaux, in his Jurisprudence of Medicine, states the rule in question clearly. "The physician," he says, "is not a guarantor, without express contract, of the good effects of his treatment, and he only undertakes to do what can ordinarily be done under similar circumstances. If the good effect of his treatment and the consequent value of his services be disputed, he must be prepared to show that his labor was performed with the ordinary skill and in the ordinary way of his profession. This is all the essential evidence, upon which to found his case." Ordr. Med. Jur. 42. A further citation from the same author is in point: "If a physician ignorantly and unskilfully administer medicine, and the patient consequently derived no benefit from his attendance, the physician is not entitled to any remuneration for what he has done. But if he has employed the ordinary degree of skill of his profession, and has applied remedies fitted to the complaint, he is entitled to his hire and reward, although they may have failed in the particular instance." Id. 1-43. In Hupe v. Phelps, 2 Stark. 480, Chief Justice Abbott, in summing up to the jury, stated the ground upon which a recovery could be had for a physician's services, as follows: "In case of a regular practitioner who had used due care and diligence, his claim to re muneration depends not on the question whether he effected a cure. He would be entitled to pay for his services although he was unsuccessful." See further on this general subject McClallen v. Adams, 19 Pick. though their consequences may impair their use, are universally held not to be a taking within the meaning of the provision. They do not entitle the owner of such property to compensation from the State or its agents, or give him a right of action. This is supported by an immense weight of authority. Those who are anxious to see the decisions will find them collected in Cooley on Constitutional Limitations, page 542, and notes. The extremest qualification of the doctrine is to be found perhaps in Pumpelly v.Green Bay Co., 13 Wall. 166, and in Eaton v. Boston, C. & M. R., 51 N. H. 504. In those cases it was held that permanent flooding of private property may be regarded as a taking. In those cases there was a physical invasion of the real estate of the owner, and a practical ouster of his possession. But in this case there was no such invasion. No entry was made upon the plaintiff's lots. All that was done was to render for a time its use more inconvenient. The present Constitution of Illinois took effect on the 8th of August, 1870, after the work of constructing the tunnel had been substantially completed. It ordains that private property shall not be taken or damaged for public use without just compensation. This is an extension of the common provision for the protection of property." The case of Eaton v. Boston, C. & M. R., commented upon in the above extract, is a very elaborately considered case, and strong ground was taken in favor of the proposition, that when property is damaged in any way, it is taken within the meaning of the constitutional limitation. There the injury was more like that complained of here than in the other cases. After a very full discussion and citation of authorities, the learned judge says: "The defendants do not stand in the position of public bodies constituted for the sole purpose of executing a public trust or duty, in the performance of which they have no other interest than that which every citizen has. True, the public benefit may be so promoted by works authorized to be made by such corporation that the property of individuals taken by them by virtue of their charters may be deemed to be taken for public use within the constitutional provision on that subject. Still they exercise their corporate privileges under a grant of the Legislature conferring upon them specific powers for their own direct and private advantage." "They are trustees of public interests for their own benefit." "The defendants voluntarily accepted their charter with a view to their private emolument, and do not occupy the position of a municipality, invested, with-333; Slater v. Baker, 2 Wils. 359; Leighton v. Sargent out their consent, with powers to be exercised solely for the public benefit." That is to say, it is carrying on business for private gain, and should be held responsible for injuries resulting from its mode of doing business, like any one else. Now these are the extreme cases upon this subject. In each case it is expresly said that the weight of authority is apparently the other way. Neither case is inconsistent with the conclusion arrived at in Green v. Swift. Our Constitution has now been aniended so as to require compensation for property taken or damaged. This is itself an admission that property simply damaged is not taken. The question as here presented is no longer a vital one as to constitutional construction. We still adhere to our former opinion. Cal. Sup. Ct., June 30, 1887. Green v. State. Opinion by Temple, J. PHYSICIAN-RECOVERY FOR SERVICES -In an action by a physician to recover reasonable compensation for professional services rendered defendant at his request, defendant offered evidence tending to show that plaintiff had mistaken the disease, and treated him for a complaint which he did not have. The court instructed the jury that such mistake would not prevent recovery, unless they further found that the plaintiff did 27 N. H. 469; 31 id. 119; Gallagher v. Thompson, Wright (Ohio), 466; Seare v. Prentice, 8 East, 348; McCandless v. McWha, 22 Penn. St. 261. It plainly appears then that the right of a physician to be compensated for his services and medicine does not depend upon the measure of his success in effecting a cure by the means employed, but upon the diligent exercise, under his employment, of the skill which commonly pertains to his profession. Such services cannot be regarded as other than beneficial. They are so in a legal sense; and the right to adequate compensation arises upon their rendition, wherever his fees are otherwise recoverable by suit at law. But it is said that this case is not within the rule; for conceding that failure in results of usual treatment does not disprove beneficial services, the patient is not treated for his disease. It is argued that if the disease of the patient be mistaken by the doctor, and his treatment be directed under that error, the services could not be meritorious or of value to the patient. It is to be observed that the bill of exceptions coming with this record gives us none of the evidence taken at the trial; and its statement on argument is entirely aside from the purposes which the writ of error is brought to serve. The bill states only that the suit was for a |