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TINDAL, C. J., left it to the Jury to say, first, when they were delivered back; and secondly, whether they were delivered to a duly authorized agent.

The Jury found for the defendant, thereby
establishing the agency, and of course
negativing the existence of the custom re-
lied upon by the plaintiffs.

Wilde, Serjt., and Steer, for the plaintiffs.

Storks, Serjt., and Thesiger, for the defendant. [Attornies-Thornbury, and Locke.]

See as to customs of trade, &c., Wood v. Wood, Vol. 1 of these Reports, p. 59; Sawell v. Corp, Ib. 392; Hogarth v. Jackson, Vol. 2,

p. 595; Handaysyde v. Wilson, Vol.
3, p. 528; and Bleaden v. Han-
cock, Vol. 4, p. 152.

1831.

DAVIES

v.

HALTON.

PINK . SCUDAMORE, HICKS, and SLEIGH. ASSUMPSIT for builder's work done at a projected hospital, called "The Western Hospital." The defendant Hicks pleaded the general issue, and the other defendants suffered judgment by default.

It appeared that Mr. Sleigh, one of the defendants, had projected the hospital as a charitable institution, at which the other defendants were to be physician and surgeon, and to deliver lectures. To shew a joint liability to the present demand, workmen were called, who proved that all the three defendants consulted together, and gave directions to the workmen as to various things for the accommodation of the patients; and that, by the permission of the provisional committee, the defendant Hicks had drawn checks for some medicines for the patients of the hospital,

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to be on the terms of looking for payment to the funds of the hospital only.

1831.

PINK

v.

SCUDAMORE.

and also a check for 10%., the proceeds of which had been paid to the plaintiff. All the defendants were members of the provisional committee for managing the intended hospital.

Spankie, Serjt., for the defendant Hicks.-If persons engage in a commercial speculation, it may be inferred that the parties who are to participate in the profits are to be liable for the expenses; but, in a work of charity, it is clear, that the parties, if medical men, devote their time, and if not so their subscriptions to the charity; but no one is deceived; the persons who deal with them knowing that they look for payment to the sums subscribed. The defendants, it is true, gave directions as to the accommodation of the patients; that was mere advice, but no order. This is not like the case of a person giving directions about the house he is himself to inhabit. If a seaman came on board a ship, and, seeing any thing that he did not approve of, were to say, pull down that bulk head, would that make him liable to the ship builder? In the building of this Court my learned brother and myself suggested many alterations, but no one ever thought of making us liable to pay for it. Could it be supposed that the plaintiff worked at the hospital on the credit of the physician and the surgeon. It is known that the committee of a charitable institution are constituted to take care of the funds subscribed, and not to be liable to the tradesmen. Committees of trading companies act for gain, but the committees of charitable institutions do not. That, therefore, excludes the inference that things are done on their credit: the inference that arises where the parties act for gain being excluded.

TINDAL, C. J., (in summing up)—The question here is, whether there was any contract by all these three defendants. Where no one is present at the making of any contract, and there is no correspondence, a Jury must look at the facts, to see who the contractors are; and they must

look at the acts of the parties while the work is going on. The plaintiff relies on the fact of the defendants giving orders; and he also says, that if there was any profit, the defendants were jointly to derive it, as they were to give lectures; and it is shewn that Mr. Hicks made a payment for part of the plaintiff's claim. On the part of Mr. Hicks it is contended, that the design originated with Mr. Sleigh; and that all that Mr. Hicks did was as a surgeon, to carry on the objects of the hospital. The defendants, no doubt, thought the funds of the hospital would be sufficient to exonerate them, but still the tradesmen are not bound by that, unless they were distinctly told that they were to deal on the terms of looking to the funds of the hospital only.

Verdict for the plaintiff.

Wilde and Jones, Serjts., and R. V. Richards, for the plaintiff.

Spankie and Storks, Serjts., and Godson, for the defendant Hicks.

[Attornies-Shuter, and Hill.]

See the case of Glenester v. Hunter, ante, p. 62.

1831.

PINK

v.

SCUDAMORE.

COLLIER, M. D., v. SIMPSON.

June 23rd.

words

of medicines

SLANDER. The declaration stated, that the plaintiff Slander.—The was a physician, and that the defendant spoke certain words, the prescribing imputing that the plaintiff had prescribed improper medicines for a child. Pleas-General issue, and several pleas of jusitfication, stating that the plaintiff prescribed corrosive sublimate in too large doses. Replication-de injuriâ. It appeared that the complaint under which the child were stated by laboured was water on the brain.

in improper doses, and the defendant justified:-Held,

that medical books, which

the medical witnesses to be

works of medical authority,

could not be put in, to shew that such doses were sanctioned; but, that the medical witnesses might be asked their judgment, and the grounds of it, which might in some degree be founded on these books as a part of their general knowledge.

1831.

COLLIER

v.

SIMPSON.

Wilde, Serjt., proposed to shew that the prescriptions were proper, and the doses not too large; and wished to put in medical books of authority, to shew what was the received opinion in the medical profession.

TINDAL, C. J.-I think I cannot receive medical books.

Wightman. When foreign laws are to be proved, it frequently happens that a witness produces a foreign law book, and states it to be a book of authority.

TINDAL, C. J.-Physic depends more on practice than law. I think you may ask a witness, whether, in the course of his reading, he has found this laid down.

Sir H. Halford, the President of the College of Physicians, was called. He stated that he considered the medicine proper, and that it was sanctioned by books of authority. He stated that the writings of Dr. Merriman and Sir Astley Cooper were considered of authority in the medical profession.

Bompas, Serjt.-I submit that medical books cannot be cited-more especially those of living authors. Sir Astley Cooper and Dr. Merriman might be called.

Wilde, Serjt.-I wish to shew that these books are acted upon by persons in the medical profession.

TINDAL, C. J.-I do not think that the books themselves can be read; but I do not see any objection to your asking Sir Henry Halford his judgment, and the grounds of it, which may be, in some degree, founded on books, as a part of his general knowledge.

Verdict for the plaintiff-Damages, 40s.

Wilde, Serjt., and Wightman, for the plaintiff.
Bompas, Serjt., and Kelly, for the defendant.

[Attornies-Mayhew & Co., and Lonsdale.]

1831.

COLLIER

บ.

SIMPSON.

HEWITT v. PIGGOTT, Esq.

ACTION against the Sheriff of Somersetshire for a false return of nulla bona to a writ of fi. fa., issued upon a judgment obtained in Easter Term, 1828, against the Earl of Egmont, upon a bond debt for 40007.

The defence was, that in 1824 the whole of the property of the noble Earl was conveyed to trustees for the benefit of creditors; and, that although the plaintiff had not in fact executed the deed, his debt, upon which the judgment was obtained, was inserted with the others in the deed; that he was fully acquainted with this arrangement at the time, and had requested, that payment might be made out of the trust funds of a bill of exchange drawn by him upon the Earl of Egmont for 3007., and had written various letters expressing his wish to have debentures for his debt like the other creditors, according to the provisions of the deed.

It appeared that a bill of discovery had been filed in Chancery, on the part of the Earl, against the plaintiff Hewitt, and that his answer contained a schedule of let ters in his possession from the Earl and other persons relating to these transactions. An order or decree was subsequently made in the suit, requiring the present plaintiff to bring all the said letters, papers, &c., mentioned in his answer, into the proper office of the Court, to be deposited there.

Wilde, Serjt., for the defendant, proposed to put in this order, with a view to introduce a letter written to the pre

June 23rd.

A. brought an

action against

the Sheriff for a false return of

nulla bona to a

fi. fa. issued against the

goods of B. B. had filed a bill

of discovery

against A., on

which there had

been a decree or should bring

order, that A.

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