of the plaintiff by the defendant; but that they were told by the learned Judge, that unless negligence were proved, they could not examine into the want of skill: and the evidence, he now admitted, did not substantiate the charge of negligence, though it proved the want of skill. And he referred to Slater v. Baker[1], to shew that an action lay against a surgeon for ignorance and unskilfulness in his profession: and to Bull, N. P. 73. where the general rule is laid down, that in all cases where a damage accrues to another by the negligence, ignorance, or misbehaviour of a person in the duty of his trade or calling, an action on the case will lie: as if a farrier kill my horse by bad medicines, or refuse to shoe, or prick him in the shoeing.
The Court granted a rule nisi. And now, upon the Judge's Report being read, the case appeared to be this:
The plaintiff's brother-in-law proved, on his behalf, that on the 2d of April 1805, the defendant attended the plaintiff, who had fallen from a horse, and told the defendant that his arm was broken: the defendant said that he thought the arm, which was swollen, was not broken, and applied vinegar to it, and bound it with tape. That the plaintiff was under the defendant's care for ten weeks without being cured: he could not bend his arm or work at his trade. That he then applied to Mr. Kingston, another surgeon, and after some time could work, and put his arm to his head. On cross-examination the same witness proved that the defendant was first sent for at night, and came directly; that he regularly attended the plaintiff every day but one till the latter applied to Mr. Pidcock, another surgeon, who, about nine or ten days after the accident, attended and assisted with the defendant in setting the elbow. Mr. Kingston, the surgeon, then proved that in July 1805 the plaintiff was brought to him a cripple in his arm, one bone of which was broken obliquely below the elbow. That the plaintiff's arm was almost straight; he could not turn his wrist, and
- ↑ 2 Wils. 359.
