the majority, rather than the minority of minds approximate. For as the gift of genius is dispensed only to a few persons in each generation, it would be unwise to insist that no man should be deemed competent to practice his profession, unless he rivalled the best masters in it. This would practically recognize the possibility of fabricating genius, and thus ignore it as a special endowment from the Creator. It must be borne in mind that the liberal professions, being essential to the welfare of society, the number of their members will always have to be regulated by the size and varying wants of separate communities. Were only men of genius to be allowed to practice them, the paucity of these would leave the majority of the world without any professional attendants whatever. And if we consider but for a moment the indispensable importance of the medical profession to the life and health of mankind, we can readily see how great would be the injustice of affixing so high a standard of qualification as a condition precedent to its practice, that only a specially endowed intellect could here and there attain unto it. Under such a code of despotic limitation, whole communities would remain without a physician, and be left to drift into forms of sorcery, or blind fatalism, according to the power of reason or religious training of their inhabitants.

§ 23. In order, therefore, to recognize, under an enlightened administration of laws, the essential doctrine of distinctions of rank founded upon superiority of mind, obtaining as well in the medical as in other professions, and to provide at the same time for the universal wants of society, it has been finally determined to consider the least amount of skill compatible with a scientific knowledge of the healing art as sufficient to predicate the ex

istence of 66 ordinary skill." Nevertheless, wherever great and extraordinary skill is possessed by an individual causing his employment exclusively on that account, there can be no doubt of his obligation to bestow it to the full measure of his ability, since the exceptional degree of that skill is the moving consideration to his employment, and its recognition is expressed in the superior charges for services, which he is both expected and justified in making.1

THE MEDICAL DEGREE A GUARANTEE OF ORDINARY SKILL.

§ 24. The possession of a Medical Degree is so far a guarantee of "ordinary skill," that behind this evidence no contrary allegation will be allowed to go. Yet a degree by itself proves nothing, and a parchment purporting to be a diploma to practice medicine, is not evidence per se that the college issuing it is a regularly constituted medical institution.3 For it may have emanated from a college having no corporate authority to grant degrees in medicine. Or, it may have been improperly obtained. To establish the authority of a diploma given to a physician by a medical college of another State, the existence of the college at the date of the diploma must be proved by producing its act of incorporation. But whenever the character of the diploma, and the mode of obtaining it

For the reasons already given, a man should be held responsible according to what he is actually able to accomplish, or for what he pretends to be able to do. He asks a large price for his services, and gets it, because he is really superior to others in his knowledge and skill, or fraudulently makes those who employ him think that this is the case. Elwell on Malp. p. 24. 2 Leighton v. Sargent, 7 Foster's N. H. R. 470.

3 Hill v. Bodie, 2 Stewt. & Porter, 56.

Hunter v. Blount, 27 Georgia, 76.

remain unchallenged, it constitutes prima facie evidence of ordinary skill in the possessor.

At this point arises an inquiry, which might give occasion for much acrimonious discussion within the pale of the medical profession, when acting as experts, although it could not legitimately come within the purview of judicial inquiry, and no court could therefore undertake to decide it. It is this: Are the diplomas of all medical schools to be considered of equal value as certificates of ordinary skill in their possessors? Or is there a diversity of rank among such schools representing by analogy diversity of proficiency in their graduates? However much of a Gordian knot this may be to orthodox physicians, none of whom could conscientiously recognize schools of medicine founded upon ultraisms in physical science, it is plain that courts must solve the problem by appealing, not to individual preferences, but to that common source of legal authority, the legislative power, which is the sole parent of all corporate franchises in the state. The fact that courts are bound to take official cognizance of all acts of the legislature until duly abrogated, will prepare us to perceive that they can not discriminate between schools of medicine. For every incorporated school authorized to confer degrees is, at law, the equal of every other similar institution, and judges have no choice allowed them in drawing inferences of ordinary skill, based upon the possession of a diploma of any particular school. As laymen they are certainly not competent to determine between. the merits of different schools of practice, and as dispensers of justice equally and to all men, they can not allow their own individual prejudices to infect their opinions. No other course is allowed them but to accept the enactments of the law-making power.

GRATUITOUS SERVICES.

§ 25. Professional services, like all mandates, being necessarily optional at their inception, and it remaining always discretionary with any party to accept or decline rendering them, no action will, in consequence, lie against a mandatary for nonfeasance, particularly where no consideration exists for the promise. For, ex nudo pacto non oritur actio. But when such services are once undertaken, and their execution actually entered upon, the contract is none the less binding because the mandator alone is to be benefited. While, therefore, a gratuitous bailee can not be compelled to execute what he has simply promised, but not yet begun to perform, since it is at any moment previous to this permitted him to withdraw, no excuse, based upon mere want of consideration, will avail him, in an action for misfeasance in the discharge of a trust he has once undertaken. This subject was very elaborately discussed in Thorne v. Deas,2 where it was held that where A. and B. were joint owners of a vessel, and A. voluntarily undertook to get the vessel insured, but neglected to do so, and the vessel was lost, no action would lie against A. for the non-performance of the promise, though B. sustained damage by the non-feasance, there being no con

The distinction taken at an early day between nonfeasance and misfeasance by a mandatary or a conductor operis, is founded in the principle that though a person can not be compelled to enter gratuitously upon the business of another, yet when he once takes it upon himself by beginning the work, he becomes responsible for any damages that may arise through his negligence or want of care. Edwards on Bailments, p. 98. 24 Johns. R. 84; Shiels v. Blackburn, 1 H. Blacks. 159.

And it is accordingly generally, true with respect to gratuitous contracts, that, for non-feasance, even when a party suffers a damage thereby, no action lies; but for mis-feasance an action will lie. Broom, Comments. on Common Law, p. 814.

sideration for the promise. Kent, C. J., delivering the judgment of the court, said: "The offer on the part of the defendant to cause insurance to be effected was perfectly voluntary. But the defendant never entered upon the execution of his undertaking, and the action is brought for the non-feasance. There is then no just reason to infer from the ancient authorities that such a promise as the one before us is good without showing a consideration."

§ 26. Therefore is it that even without consideration, either present or prospective, if a physician undertakes to perform professional services, and actually enters upon their execution, he becomes immediately responsible for the consequences of his own acts, and for any damages which may ensue to the patient through want of ordinary skill and diligence. "If," says C. J. Kent, in the case above cited, "the party who makes this engagement enters upon the execution of the business and does it amiss through the want of due care, by which damage ensues to another party, an action will lie for misfeasance."

The rule is also well put in Smith's Mercantile Law, 4th ed., p. 112, in the following words: "But, if he do commence his task, and afterwards be guilty of misconduct in performing it, he will, though unremunerated, be liable for the damage so occasioned; since, by entering upon the business he has prevented the employment of some better qualified person, and the detriment thus occasioned to his principal is a sufficient consideration to uphold an undertaking on his part to act with care and fidelity."

So, in Shiels v. Blackburn,1 which involved the principle of the responsibility of a gratuitous bailee, Heath, J., thus

11 H. Blacks. 159.