must have practised the general duties of an apothecary. Thompson v. Lewis, 1 M. and M. 255, 3 C. and P. 483, S. C. Practice while in the service of another is not a practising within the act. Brown v. Robinson, 1 C. and P. 264.1

Certificate.] By 6 Geo. IV. c. 133, s. 7, the common seal of the Company of Apothecaries is sufficient proof of the certificate, and. that the person therein named is qualified to practise: but the seal must be proved to be the seal of the company. Chadwick v. Bunning, R. and M. 306, 2 C. and P. 106, S. C. A general certificate, not confining the party to practise in the country, will entitle him to recover for business done in London, although he has only paid 47. 4s. the price of the country certificate under 55 Geo. III. c. 194, s. 19. lbid. The certificate supersedes the necessity of proving an apprenticeship served. Sherwin v. Smith, 1 Bing. 204, 8 B. Moore, 30. S. C.

If a promissory note be given "in consideration of the plaintiff's care, and medical attendance bestowed upon the maker," and notice is given of disputing the consideration of the note, it is incumbent upon the plaintiff to prove himself qualified by stat. 55 Geo. III. c. 194. Blogg v. Pinkers, R. and M. 125.

Surgeon's Bill.

By 3 Hen. VIII. c. 11, s. 1, no one shall act as a surgeon within the city of London, or seven miles round, unless he be examined and licensed by the College of Surgeons, under the penalty of 57. per month. It is incumbent upon the defendant, if he intends to avail himself of the plaintiff being unlicensed, to prove that fact, Gremaire v. Le Clerc Bois Valon, 2 Campb. 143, and it seems that as the statute contains no prohibitory clause, a person, though subject to a penalty, may recover for his labour. Ibid.

A surgeon who practices as a physician, having no diploma, cannot maintain an action for his fees; Lipscombe v. Holmes, 2 Campb. 441; and if in his bill a surgeon leaves a blank for his charge for attendances, and the defendant pays a certain sum into court on that account, the plaintiff is bound by that sum, and cannot recover more. Tuson v. Batting, 3 Esp. 192.

A surgeon not having a certificate from the Apothecaries' Company, cannot charge for his attendance or for administering medicine, except in cases within his own department. He cannot, therefore, recover for attending a patient in the typhus fever. Allison v. Haydon, 4 Bingh, 619, 3 C. and P. 246, S. C. the plaintiff be a surgeon and apothecary he may, besides his charges for medicine, recover reasonable charges for attendances. Handey v. Henson, 4 C. and P. 110.

» 14 Eng. Com. Law Reps. 401. 9 11 Id. 386.

12 Id. 49.

But if

Defence.

If the defendant has received no benefit, in consequence of the plaintiff's want of skill, the latter cannot recover. Kannen v. MMullen, Peake, N. P. C. 59. Duffit v. James cited 7 East, 480. So a person who professes to cure disorders in a specified time by sovereign remedies, and induces the defendant to employ him by false and fraudulent representations of his skill, and does not succeed in his cure, cannot recover for medicines and attendance, Hupe v. Phelps, 2 Stark. 480; but the remuneration of a regular practitioner, who has used due care and diligence, does not depend on his effecting a cure. Per Abbott, C. J., ibid.

A physician can maintain no action for his fees. Chorly v. Bolcot, 4 T. R. 317.

ASSUMPSIT FOR SERVANTS' WAGES.

In an action by a servant for his wages, the plaintiff must prove a retainer, of which his service will be evidence, the length of time he has served, and the amount of his wages.

A general hiring, without mention of time, is a hiring for a year, and if during the year the master dismiss his servant without cause, the latter is entitled to his wages until the end of the year. Beeston v. Collyer, 4 Bingh. 309, 2 C. and P. 607, S. C. But if he leaves his service during the year without cause, it seems to be a forfeiture of the wages due to him, and he cannot recover any thing. Hutman v. Boulnois, 2 C. and P. 510. With regard to a menial servant, there is a common understanding that the contract may be dissolved by either party,-by the master on paying a month's wages or giving a month's warning, by the servant on giving a month's warning. See Beeston v. Collyer, 4 Bingh. 313. In such case, therefore, if the master,, without reasonable cause, turn the servant away, the latter will only be entitled to recover a month's wages. Robinson v. Hindman, 3 Esp. 235. But other servants, as clerks, &c. may recover their wages for the remainder of the year. Beeston v. Collyer, 4 Bingh. 309. And where wages are payable quarterly, and the servant is tortiously discharged in the middle of the quarter, he has been allowed to recover for the whole quarter, on the general count for work and labour. Gandall v. Pontigny, 4 Campb. 375, 1 Stark. 198, S. C. See Eardly v. Price, 2 N. R. 333; but see Hulle v. Heightman, 2 East, 145. But if a servant misconduct himself, the master may turn him away without any warning; Spain v. Arnott, 2 Stark. 256; Trotman v. Dunn, 4 Campb. 212; and in such case, the misbehaviour seems to be a forfeiture of the accruing wages. Alkin v. Acton, 4 C. and P. 208. See Shirman v. Bennett, 1 M. and M. MSS. A servant incapacitated from

a

3 Eng. Com. Law Reps. 440. * 13 Id. 444. 12 Id 286. z 12 Id. 239. a 2 Id. 354. b 3 Id. 339. ⚫ 19 Id. 346.

actual service during part of his time by sickness, is still entitled to recover his wages for the whole period. R. v. Winterdatt, Cald. 298; and see Chandler v. Grieves, 2 H. B, 606.

A servant who has come over from the West Indies, where he has been a slave, and who continues in the service of his master in England, is not entitled to wages without an express agreement. Alfred v. Fitzjames, 3 Esp. 3.

ASSUMPSIT FOR NOT ACCEPTING GOODS.

In an action of assumpsit for not accepting goods sold, the plaintiff must prove the contract and breach, the performance of all conditions precedent on his part, and the amount of damage.

The contract.] By the seventeenth section of the statute of frauds, 29 Car. II. c. 3, no contract for the sale of any goods, wares, and merchandises, for the price of 10%. sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties, to be charged by such contract, or their agents thereunto lawfully authorised.

What contracts are within the seventeenth section of the statute of frauds.] It was formerly thought that executory contracts were not within the statute; Towers v. Sir J. Osborne, 1 Str. 505, Clayton v. Andrews, 4 Burr. 2101, B. N. P. 279; but that opinion was af terwards exploded; Roundeau v. Wyatt, 2 H. Bl. 63. Garbutt v. Watson, 5 B. and A. 613; and therefore it was held that a contract by the plaintiffs, who were millers, for the sale of flour, which was not at the time prepared so as to be capable of immediate delivery, was within the statute. Garbutt v. Watson, 5 B. and A. 613. But where the contract was not for the sale of goods, but for work and labour and materials found, as in that case the subject matter of the contract did not exist in rerum naturâ, and was incapable of delivery and of part acceptance, it was held not to be within the statute. Thus a contract for the purchase of a quantity of oak pins (for upwards of 107.) which were not then made, but were to be cut out of slabs, was held not to be within the statute; Groves v. Buck, 3 M. and S. 178; and upon this principle the case of Towers v. Osborne, which was a contract for a chariot not then made, may be supported. Cooper v. Elston, 7 7. R. 17; see also T. Astey v. Emery, 4 M. and S. 262; Smith v. Surman, 9 B. and C. 576. But now by Lord Tenterden's act, 9 Geo. IV. c. 14, s. 7, the above provision of the statute of frauds "shall extend to all

contracts for the sale of goods of the value of 107. sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. To bring the contract within the statute, the value of the goods must be upwards of 10%, and where several articles were bought at a shop at the same time, but at different prices, each under 107., but amounting altogether to 70%., it has been held to be one contract and within the statute. Baldey v. Parker, 2 B. and C. 37, more fully stated post. With regard to contracts for the sale of growing crops and timber, see the cases cited ante, p. 120.

The cases with regard to an acceptance of goods within this section of the statute of frauds, are stated under a subsequent head. Vide post," Assumpsit for goods sold and delivered," p. 216.

Sales by auction, of goods, are within the statute. Kenworthy v. Schofield, 2 B. and C. 945.5

What note or memorandum in writing is sufficient within the seventeenth section of the statute of frauds.] The word bargain, used in the statute, means the terms upon which the parties contract. Per Bayley, J., Kenworthy v. Schofield, 2 B. and C. 947. The price must be stated. Elmore v. Kingscote, 5 B. and C. 583. "We agree to give Mr. E. 1s. 7d. per pound for thirty bales of Smyrna cotton, customary allowance, cash three per cent., as soon as our certificate is complete,-M. and T." has been held a sufficient memorandum. Egerton v. Mathews, 6 East, 307. See Cooper v. Smith, 15 East, 103. Richards v. Porter, 6 B. and C. 437. As the language of this section is in substance the same as that of the fourth section, relating to the sale of lands, see 2 B. and C. 947, it will only be necessary to refer to the cases already cited, ante, p. 136, with regard to the signing of the note or memorandum by the party, and the manner in which two writings may be connected, in order to form a complete note or memorandum.

An auctioneer is the agent of both parties, Kenworthy v. Schofield, 2 B. and C. 947; and if he writes down the buyer's name, or that of his agent, in the catalogue, to which the conditions of sale are annexed, opposite the lot, together with the price bid, it seems a sufficient memorandum. Phillimore v. Barry, 1 Campb. 513. Kenworthy v. Schofield, 2 B. and C. 945. But where the conditions of sale are not annexed to the catalogue, and there is no reference to them in the catalogue, signing the buyer's name in the catalogue is not a compliance with the statute. Hinde v. Whitehouse, 7 East, 558. Kenworthy v. Schofield, 2 B. and C. 945.

19 Eng. Com. Law Reps. 16. 9 Id. 286. h 12 Id. 327. i 13 Id. 229.

If A., without authority, makes a contract in writing for the purchase of goods by B., and B. subsequently ratifies the contract, such ratification renders the act of A. valid, as an agent within the statute of frauds. Maclean v. Dunn, 4 Bingh. 722.*

m

A broker is the agent of both parties, and may bind them by signing the same contract on behalf of buyer and seller. Where bought and sold notes have been delivered by the broker to the parties, those notes, and not the entry by the broker in his book, are the the proper evidence of the contract; Thornton v. Meux, 1 M. and M. 43; and such notes are admissible, though the entry in the broker's book has never been signed by him. Goom v. Aflalo, 6 B. and C. 117; 9 D. and R. 148, S. C. If the bought and sold notes materially differ, there will be no valid contract. Grant v. Fletcher, 5 B. and C. 436. Thornton v. Meux, 1 M. and M. 43. A bought note signed by the broker, and delivered to the purchaser, is not a sufficient note or memorandum within the statute. Smith v. Sparrow, 2 C. and P. 544;" but see Dickinson v. Lilwal, 1 Stark. 129. If no bought and sold notes have been made out, the entry in the broker's book, signed by him, will, as it seems, be evidence of the contract. Grant v. Fletcher, 5 B. and C. 436. Henderson v. Barnewall, 1 Y. and J. 387. Where the broker, in the bought and sold notes, described the seller's firm as A., B., and C.; but the firm had, in fact, unknown to the broker, been changed to A., D., and E., it was held that A., D., and E., might sue on the contract, it not appearing that the defendant had been prejudiced or excluded from a set-off, and there being some evidence of his having treated the contract as subsisting with the plaintiffs. Michell v. Lapage, Holt, 258. A material alteration in the sale note, by the broker, at the instance of the seller, after the bargain made, and without the consent of the purchaser, will preclude the seller from recovering. Powell v. Divett, 15 East, 29.

Performance of conditions precedent.] Where it is the duty of the plaintiff to tender the goods to the defendant, such tender must be averred and proved. So in an action for not accepting stock, the plaintiff must show that he has done every thing on his part towards the execution of the contract, by proving either a tender or refusal, or that he waited at the bank till the final close of the transfer books, on the day when the stock was to be transferred. Bordenave v. Gregory, 5 East, 107. But where, by the terms of the contract, it is incumbent on the purchaser to fetch away the goods, the averment and proof of a tender seem to be unnecessary, and it will be sufficient for the plaintiff to aver and prove a readiness to deliver. See Rawson v. Johnson, 1 East, 203. Wilks v. Atkinson, 1 Marsh. 412, post, p. 209.1

15 Eng. Com. Law Reps. 129. 1 13 Id. 116. m 11 Id. 265. a 12 Id. 253.