was about to be had to civil proceedings for the purpose of recovering the money, there might then be some ground for supposing that the warrant of attorney was given for the purpose of settling such civil claim. That the books were referred to, seems quite consistent with the warrant of attorney being given to compromise the charge of embezzlement, as no doubt the parties would refer to them for the purpose of ascertaining the amount of the debt; for every embezzlement includes a debt as well as a felony. It seems clear, beyond a doubt, that there was a prosecution for a felony at the time pending, and that a doubt had arisen in the magistrate's mind as to whether a partnership existed between the parties or not. That being so, I cannot but see that the warrant of attorney was calculated to bring the proceedings to an end, and, as far as appeared at the time, to prevent the party from being subjected to a criminal prosecution. The rule must, therefore, be made absolute. Rule absolute. 1846. Ex parte CRITCHLEY. PROUD and Others v. MAYALL. THIS was an action tried before the under-sheriff of last. The declaration was in debt for goods sold, work done, and materials provided for the defendant, and on an account stated. The defendant pleaded nunquam indebitatus, on which sisted of items issue was joined. for "medicines and attendances." At the trial, the plaintiffs' assistant proved that they were surgeons, and that he had visited and dispensed medicines to the defendant, and that on one occasion he had bled the defendant: Held, that primâ facie the charges were charges in a medical case; and that the plaintiffs were therefore bound to prove that they were certificated as apothecaries, or that they had been in practice previous to the 1st of August, 1815. 1846. PROUD and Others v. MAYALL. The particulars of the plaintiffs' demand were as follow: "In the Queen's Bench. "Between John Freer Proud, George Edwards, and Edward Hayling and James Mayall, defendant. “This action is brought to recover the sum of 67. 1s. 6d., being the amount due on the following account : "Above are the particulars of the plaintiffs' demand in this action, for the recovery whereof they will avail themselves of the whole or any part of the declaration. "Dated this 6th of June, 1845. "Your's, &c., "C. B. TATTERSHALL, "Plaintiffs' Attorney." "To Mr. JAMES MAYALL, It appeared upon the under-sheriff's notes, that the plaintiffs called a witness of the name of Bunch, who deposed that he was a surgeon and assistant to the plaintiffs, who were surgeons, and that his duty was to assist and dispense occasionally; that he had visited the defendant, and dispensed medicines; that on the 19th November, 1843, he had visited the defendant [bled him and gave medicines (a)], and that on the 11th of September, 1843, he had visited the defendant in the night; that he had dispensed medicines to the defendant's son; that he had made entries in the plaintiffs' books of medicines and attendances; and that he had no doubt the medicines and attendances charged, which amounted to 6. 1s. 6d., were respectively delivered and made. The only other witness called was the plaintiffs' errand boy, who spoke to the delivery of the medicines. On the part of the defendant it was submitted that the plaintiffs must be nonsuited, because they had not proved that they were certificated as apothecaries, or that they were in practice before the 1st of August, 1815; and also that there was no partnership proved (b). The undersheriff overruled these objections; and a verdict was found for the plaintiffs for the amount claimed, with leave reserved to the defendant to move to enter a nonsuit on the above grounds. A rule nisi had been accordingly obtained, on the production of the under-sheriff's notes, and on an affidavit of the defendant's attorney, who was present at the trial. The affidavit stated that on the defendant's attorney objecting that no item of a surgical bill had been proved, the plaintiffs' attorney contended that Bunch had said, in his examination, that he had bled the defendant. That thereupon, after the close of the plaintiffs' case, the witness Bunch was recalled, and said that he had so deposed in his examination in chief. That then the words "bled (a) These words were interlined. (b) Nothing turned on this last objection. 1846. PROUD and Others υ. MAYALL. 1846. PROUD and Others v. MAYALL. him and gave medicines" were inserted in the under-sheriff's notes; but that to the best of the deponent's belief no such words were uttered by the witness in his examination in chief. In answer to this rule, an affidavit was made by the plaintiff's attorney and by Bunch, that Bunch had so stated in his examination; and Bunch deposed that he had examined the items to which the particulars applied, and that some of the entries and items related to work, care, attendance, and medicine done, bestowed, and provided by the plaintiffs in their profession and practice as surgeons to, for, and on behalf of the said defendant; that is to say, for bleeding the said defendant, and for examining and treating the wife of the defendant for or in respect of a certain disease or affection called an uterine affection. Whitehurst shewed cause. The plaintiffs in this action are surgeons, and therefore the case does not come within the 21st sect. of the 55 Geo. 3, c. 194, which enacts “that no apothecary shall be allowed to recover any charges claimed by him in any court of law, unless such apothecary shall prove on the trial, that he was in practice as an apothecary prior to, or on the said fifth day of August, one thousand eight hundred and fifteen, or that he has obtained a certificate to practice as an apothecary from the said master, wardens, and society of apothecaries as aforesaid.” The 29th sec. expressly enacts, "that nothing in this act contained shall extend or be construed to extend to lessen, prejudice or defeat, or in anywise to interfere with any of the rights, authorities, privileges, and immunities heretofore vested in and exercised, and enjoyed by, either of the two universities of Oxford or Cambridge, the Royal College of Physicians, the Royal College of Surgeons"-"but the said universities, royal colleges," &c., "shall have, use, exercise, and enjoy all such rights, authorities, privileges, and immunities, save and except as aforesaid, in as full, ample, and beneficial a manner, to all intents and purposes, as they might have done before the passing of this act, and in case the same had never been passed." In Simpson v. Ralfe (a), which was an action by a surgeon for attendances and medicines dispensed in a surgical case, Bayley, B., said, in delivering judgment, "I do not see why he might not dispense medicines, as incident to his business in the course of attending a patient as a surgeon." The case of Handey v. Henson (b) shews that a surgeon and apothecary may recover as well for medicines as attendances; although an apothecary is not allowed to charge for both; Towne v. Gresley (c). In Allison v. Haydon (d), an action was brought by a surgeon for attendances in what was, strictly speaking, a medical case; and although the Court decided against his claim, they seem to have taken for granted that a surgeon was entitled to charge for attendances and medicines in a purely surgical case. Mr. Justice Park, in delivering judgment, says, "A chemist can only recover for medicines sold, not for advice or attendance; and a surgeon cannot charge for his attendance, or for administering medicine, except in cases within his own department." The question, therefore, simply is, whether the attendances and medicines in the present instance were administered in the course of a surgical case; and it is submitted that there was sufficient evidence to warrant the jury in concluding that they were, and therefore to support their verdict. The Court will not, therefore, disturb their verdict, particularly when we shew on our affidavits that the plaintiffs not only attended the defendant to bleed him, but also attended his wife in an uterine affection. Pashley, in support of the rule. The case of Allison v. Haydon, simply decided that a surgeon could not charge for attendances in a purely medical case. The rest is a mere obiter dictum. In Simpson v. Ralfe, the evidence (a) 4 Tyr. 325. (d) 4 Bing. 619; S. C. 1 M. & P. 588. 1846. PROUD and Others v. MAYALL. |