· LUNATIC ASYLUMS.

such time only as the necessity for such restraint continues. The same rule may apply in the case of some surgical operations, where a person can not have any will of his own, and it becomes necessary that he should be held by others.

"The question must then arise in each particular case, whether a person's own safety, or that of others requires that he should be restrained for a certain time, and whether restraint is necessary for his restoration, or will be conducive thereto. The restraint can continue as long as the necessity continues. This is the limitation, and the proper limitation. The physician of the asylum can only exercise the same power of restraint which has been laid down as competent to be exercised by others in like cases.

h creates the law, cres the case of an applicatio over the person and estat e statute, some time mu ppointment can be mai may be necessary. If the traint for a fortnight, the hour. And if a man he may be restrained in: ame limitations and rules sane have been in use, established by any positiv f necessity and humanity dacknowledged at the tim: The provisions of the cutbject must be taken wi r such construction as arise he case. Besides, it is s e person has no will of his the duty of others to pr But whose duty does children, he may have 2o¡ rothers or sisters, he may form the duty. Those who it. His children, his wife able persons to take charg But a stranger in a hotel a j delirious. In that case it bout him to restrain him, for Law of Lunatics, p. 140,) thus er ngland: "Unless there exist strong e person of a married man non the custody of a married woman

.vn.

man's case, 1 P. Wms. 701.

In the United States their rights are, in general:

1st. To enjoy a given name.

2d. To have and use a corporate seal.

3d. To prescribe rules for the admission and expulsion of members, and the election of officers.

4th. To sue, and be sued.

5th. To purchase, hold, and sell property.

6th. To impose fines and penalties on their members. In England these societies enjoyed anciently much more extensive powers than any ever granted in this country, and even assumed the power to imprison members, or persons practicing medicine without license within their jurisdiction.1

The provisions of the revised statutes of New York giving to county medical societies the right to try members for ignorance, misconduct, or immorality, and expel them therefor, have been held not to be unconstitutional. And in furtherance of this principle it has been decided that, a medical society is not precluded from preferring charges against a physician, by the fact of having once

before refu

ding the

and may r

ase, and

dence.1

But the

make by

1 The following cases from the English Reports may be consulted upon this subject: Goddard v. Coll. Physicians, mandamus, 1 Lev. 19; Letch v. Coll. Physicians, mandamus, 4 Burr. 2186; R. v. Askew, quo warranto against censors, 4 Burr. 2195; Archer v. Coll. Physicians, mandamus, 5 Burr. 2740; Stanger v. Coll. Physicians, mandamus, 7 T. R. 295; Coll. Phys. v. Levett, debt, 1 Ld. Raymond, 472; Coll. Phys. v. West, license, extent of territory, 10 Mod. 353; Bonham v. Coll. Phys., false imprisonment, 8 Coke, 107; Laughton, Prest. &c. v. Gardner, debt, Cro. Jac. 121; Atkins v. Gardiner, debt, 1 Brown & Gould, 93; Coll. Phys. v. Butler, debt, Litt. 168; Coll. Phys. v. Tenant, debt, 2 Bulstr. 185; Coll. Phys. v. Bush, debt, 4 Mod. 47; Coll. Phys. v. Talbois, debt, 1 Ld. Raymond, 153; Coll. Phys. v. Salmon, debt, 1 Ld. Raymond, 680; Coll. Phys. v. Huybert, action qui tam, Goodall, 261; Coll. Phys. v. Needham, action qui tam, Goodall, 273; Coll. Phys. v. Harrison, action qui tam, Goodall, 301; Coll. Phys. v. Alphonso, habeas corpus, 2 Bulst. 259; Coll. Phys. v. Groenvelt, habeas corpus, 1 Ld. Raym. 213.

P

ts are, in general:

te seal.
admission and expulsion
officers.

11 property.
Ities on their members.
yed anciently much mate
granted in this country,
mprison members, or per
license within their juris

pro

before refused to prefer the same charges. In such ceeding the society are but accusers, like a grand jury, and may receive additional testimony, or reconsider the case, and change their determination upon the original evidence.1

But the power given by statute, to medical societies, to make by-laws and regulations relative to the admission and expulsion of members, although conferred in general terms, is not an arbitrary, unlimited power. The by-laws, rules, and regulations are not to be contrary to, nor inconsistent with, the laws of the State. And a by-law must be reasonable, and adapted to the purposes of the corporation. Thus, a medical society established a tariff of fees for medical services to be performed by its members, and fixed a minimum salary to be received by any member who should be appointed to any public office, in a professional capacity, and adopted a resolution declaring that it should be dishonorable for any member of the society to accept any appointment, or perform any services contained in such tariff of prices, at a less sum than was therein specified. Subsequently, in pursuance of a by-law to that effect, a member was expelled for a violation of this regulation. Held, that the regulation was void, as being unreasonable, and against public policy, and contrary to law, and that the expulsion of the member was unauthorized and illegal.2 Semble, also, that the code of medical ethics adopted by the by-laws of a county society is obligatory on members alone, and its non-observance previous to membership furnishes no legal cause either for exclusion, or expulsion.3

I statutes of New York es the right to try mem or immorality, and expel ot to be unconstitutions ple it has been decided recluded from preferring the fact of having once Reports may be consulted up , mandamus, 1 Lev. 19; Letch 86; R. v. Askew, quo warranti . Coll. Physicians, mandamus, } - mandamus, 7 T. R. 295; C 72; Coll. Phys. v. West, licent v. Coll. Phys., false imprisonne dner, debt, Cro. Jac. 121; Atkins Coll. Phys. v. Butler, debt, Litt r. 185; Coll. Phys. t. Bush, del, - Ld. Raymond, 153; Coll. Phys Coll. Phys. v. Huybert, action qui ■m, action qui tam, Goodall, 273; n, Goodall, 301; Coll. Phys. Coll. Phys. v. Groenvelt, habest

'Ex parte, Smith, 10 Wend. 449.

2 Vide People v. Med. Soc'y of Erie county, 24 Barb. 570; vide also, Ex parte Paine, 1 Hill. 665; People v. Med. Soc'y of N. Y. 3 Wend. 426; ibid. 18 Wend. 539.

3 Bartlett v. Medical Society, 32 N. Y., 187.

PART SECOND.

MEDICAL EVIDENCE.

CHAPTER I.

OF THE NATURE OF SKILLED TESTIMONY, AND WHAT PERSONS ARE EXPERTS.-THEIR COMPENSATION.

§ 100. PHYSICIANS, when summoned before courts, may appear in a two-fold capacity, that is to say, either as ordinary witnesses, to state facts within their own knowledge, or as skilled witnesses to interpret them. In the former position their testimony differs in nothing from that of other persons, being subject to the same rules of admissibility and interpretation. Their profession imparts no additional value to their testimony in such cases, for it is clear that they simply testify to those matters to which any equally intelligent layman might. In these cases their testimony is restricted to matters of personal knowledge alone, and their opinions become inadmissible. It is well to understand this at the outset of the party's examination, and the physician, before taking the witness's stand, should know in which capacity he is called. Both capacities are, to a certain extent, often united in him, but, as a general rule, it is not usual to call an expert to