Much depends, however, in these cases upon what the jury think of the characters of the two men and of the circumstances of the case. It is only where they have found the accused guilty that the question has come before the bench of judges for decision. There has been, doubtless, a multitude of cases in which the jury have acquitted the accused, and no formal law decision made. It has never been customary to spend any time in arguing about the law of these cases after a jury has rendered an acquittal.

A very remarkable and difficult case involving these principles occurred in 1879 in New Jersey. The details will be generally remembered. The leading facts were: A, being in B's employ as coachman, misbehaved so as to give cause for dismissal. B told him to give up the keys and leave. A met the notice in what was from one point of view turbulent defiance, from another a rightful refusal to leave until his wages should be paid. B, probably meaning no more than to enforce his rights as he understood them, went to the house for a pistol as a means of protection; returned; and, without desiring or threatening to kill A, resumed insisting that A should surrender the keys and depart. But he became satisfied, and with apparent good grounds, from A's acts and demeanor, that the latter intended shooting. To anticipate this and disable A from doing it, he gave what was not intended to be, though it was, a fatal shot with the pistol he had brought from the house. Of course this chain of circumstances presented as one element the returning armed to the conflict. Another element was also involved-the right to eject an unlawful intruder. There is a general understanding that a householder may shoot a burglar. But how far does such a right extend? Can it be asserted towards any one who wrongfully insists upon remaining after he has been rightfully ordered to leave? A customer visits a store, buys goods, and disputes the change offered. A tenant or boarder denies that his month is up. A passenger proffers an insufficient ticket to the conductor.

Either one ought, we will say, to yield in the dispute, leave peaceably at the demand of the rightful owner, and sue at law for the money due him or the damages sustained. But suppose he will not; may he be shot like a burglar, or must the owner, in his turn, keep the peace and seek redress in the courts? Certainly a servant, who has rightfully entered the premises, and is remaining in the assertion of a right, stands on a different footing, even if his claims are not tenable, from a midnight criminal. Probably the limit of the rule would be that a householder has the right gently to expel an intruder, and to use such force as is necessary in doing this.

But in the case described A resisted to the extent of threatening, or preparing to shoot B. The jury probably reduced their view of the facts to something like this: that B supposed, sincerely, that it was right and necessary for him to resume the possession of the barn, which he had temporarily intrusted to A, and that he might meet dangerous resistance in endeavoring to do so; that he armed himself to repel any such danger; and that he fired when he believed that resistance which imperilled his own life was seriously threatened. Accordingly they found a verdict of acquittal on the ground of self-defence.

CHAPTER XXXIV.

DOCTORS AND DRUGGISTS.

CALLING THE DOCTOR.

THE doctor stands at a disadvantage in respect to collecting his bill. He expects to treat a good many patients gratuitously who have not means to pay. The general custom of the profession is liberal in this respect. But it must be vexatious to find, as a physician often does, patients who can pay ready to dispute the bill or procrastinate payment indefinitely.

In some of these instances, the doctor, unable to obtain his fee from his patient, has sued the person who called him. Mr. John Thompson is sitting on his door-step some summer evening, when a runaway carriage dashes up the cross street, and an old lady on the crossing is knocked down and run over. A crowd gathers, and Mr. Thompson steps to the spot to see what has happened. The victim is taken into an adjoining house. The crowd murmurs, "Somebody go for a doctor." Mr. Thompson obligingly goes. Doctor is out. Thompson writes on the slate, "Doctor, please call at No. so-and-so at once. Old lady run over." And signs his name. Doctor reads message, goes, treats the case, cures patient, but gets no pay from her. Then he sends in a bill to Thompson. Thompson remonstrates. Doctor says, "You employed me; I knew nothing of the woman. I went to treat her by your written order. I knew you were reliable, and I charged the visits to you." This is not a common case, but such cases have occurred. It looks like a good legal claim, and Thompson hardly knows what to say, except that he did not understand it so. But it is not according to law. The courts do not consider that a person who

calls the doctor as a messenger only can be charged with the bill.

In old slavery days, in South Carolina, there was a lady who owned a plantation, and employed a "plantation physician" to treat the slaves when ill. One of them needed a surgical operation which the plantation doctor thought was beyond his skill; so he asked the overseer to send for a surgeon. The overseer did So, and a surgeon came and treated the case successfully. Why he did not get his pay from the owner is not known to history. He sued the plantation doctor. But the court said this would not do. There is no understanding that the person who calls in the doctor engages to pay him. To make him pay, some other facts must be shown; such as that he promised in so many words that he would pay the bill.*-There was a Vermont man who became insane, and his brother carried him to a private asylum, and asked to have him taken care of and treated, which was done. The doctor sued the brother for his bill. But the court said that he must prove that the brother promised that he himself would pay. Without this the doctor's only claim was against the patient and his estate.t-In Pennsylvania there was a young man who became of age, so that his father was no longer responsible for him; but he continued to live in his father's house. At length he fell sick, and the father went for the doctor. Afterwards the doctor sued the father. The court said this was wrong; he should have sued the son; the father went as messenger only; the son, who had the benefit of the service, was the responsible person.t-Of course, such cases are decided differently where a husband or a father of young children calls the doctor for his wife, son, or daughter. Here the bill is against him, not because he was the messenger, but because he is responsible for the patient's support and expenses. There was a

* Guerard v. Jenkins, 1 Strobh. 171. + Smith v. Watson, 14 Vt. 332. Boyd v. Sappington, 4 Watts, 247.

Maine lad who ran away from home, so that, legally, his father was not bound to support him; but being sick, he came back, prodigal fashion, and his father received him and went with him to a physician for advice. The boy grew worse and died. The doctor sued the father, who argued that his liability was ended when his son ran away. But the court said receiving him when he returned commenced it anew, and he must pay.*—A married woman may, if she is ill while her husband is absent from home, send for a physician, and he may charge the husband. There have been two New York cases where a married lady, being sick, has gone to her father's residence, and he has called his physician and has been sued. In one of these the wife went with the husband's approval, in the other the father carried her away secretly. The courts said that the father was not chargeable unless he promised beforehand that he would pay. The husband, or the lady herself, was the responsible person, according as she was justified, or not, in going away from his home. A wife who deserts her husband and becomes sick away from home cannot run up a doctor's or druggist's bill against him; the charge must be against the lady.†

Quite a number of queer cases have arisen where a railway passenger or servant has been hurt by a boiler explosion or collision of trains, and some agent of the company has sent for the doctor, and afterwards the company has refused to pay the bill. Of course, these cases assume that the managers of the train were in some way in fault for the injury, so that the company is liable for the damage done. But the courts say it does not follow that the doctor can render his bill to the company unless the agent who called him had the proper authority. In England the decision is that the "general manager" of a railroad has authority, as matter of course, to call a surgeon or physician when any

* Deane v. Annis, 14 Me. 26.

+ Crane v. Baudouine, 55 N. Y. 256; Potter v. Virgil, 67 Barb. 578.