Where a Guardian Is Appointed on the petition of an infant he will be allowed the costs of the application in his account.1 Where the Petition Is Amended the allowance of costs rests in the discretion of the court.2 When a Copy Is Filed. But where the loss of the original petition, or the refusal of the petitioner to file it, renders necessary the filing of a copy, the petitioner will be ordered to pay the costs consequent thereon.3 Where Two Petitions with the Same Object are filed by different parties, the costs of both will be allowed provided they were presented in good faith, but it will be otherwise where the second petitioner was aware of the previous application.+ Where Petition Stands Over. A respondent objecting to the form of a petition should be prepared to answer to the merits in case his objection is overruled, and if it is necessary that the petition should stand over to enable him to file affidavits he will be obliged to pay costs. 2. Where the Petitioner Does Not Appear. If the petitioner does not appear upon the hearing, the respondent is entitled to a dismissal of the petition with costs, upon producing his affidavit that the petition has been duly served upon him. 3. Appearance by Party Having No Interest. The authorities differ as to whether a party who has been served with a petition, but who has no interest in the subject-matter of the controversy, is entitled to the costs of appearance." In In re Procter, 16 Jur. 233, where the petition was defective, leave was given to amend, and the court made an order that the costs of the day's attendance should not be allowed. Where notice of a motion to amend is given to the respondent, and he appears to oppose the application, he will not be entitled to the costs of the day if the motion to amend is granted. Ex p. Green, 2 Deac. & C. 42. 3. Re Devonshire, 32 Beav. 241; Re Anglo-Greek Steam Nav., etc., Co., 35 Beav. 419. 4. Ex p. Wortham, 4 De G. & Sm. 415: In re Chaplin, 9 L. T. N. S. 677. Where two petitions are presented on the same day in the same matter, costs will be allowed only on the more perfect petition, although the other Costs of All Affidavits. — When an order is made that a party shall pay costs, this includes the costs of all the affidavits on both sides, although some of them may not have been read on the hearing. Exp. Sidebotham, 4 Deac. & C. 141; Wood v. Preston, 5 Sim. 662. 7. That Costs Will Not Be Allowed. The court disapproves of the appearance of parties, although they have been served, where their appearance is unnecessary, and their costs will not be allowed. Day v. Croft, 19 Beav. 518; and to the same effect see In re Birch, 2 Kay & J. 369; Garey v. Whit Discretion of the Court. By the weight of authority the matter of allowing or disallowing costs in such cases rests in the discretion of the court, which will consider whether or not it was necessary for the party to appear, and decree accordingly.1 tingham, I T. & R. 405; Heneage v. Aikin, 1 Jac. & W. 377. Unnecessary Party Ordered to Pay Costs. - Where an unnecessary party has been served with a petition solely in consequence of a claim set up by him, he will be left to bear his own costs. Matter of Shrewsbury Municipal Charities, 13 Jur. 201. To the Contrary. But in the following cases respondents served and appearing were allowed costs, although having no interest in the subject-matter of the controversy. Marks v. Marks, 18 L. J. Ch. 171; Lodge v. Robbins, 4 Jur. 478; Clarke v. Simpson, 17 L. T. N. S. 559; Bamford v. Watts, 2 Beav. 101. And it has been held that a party served with a petition does not lose the costs of his appearance merely because his counsel at the hearing raises an unsuccessful opposition, Re London, etc., R. Metropolitan Extension Act, 13 Jur. 2; or because he has appeared merely to ask for his costs, Bruce v. Kinlock, 11 Beav. 432. So where a solicitor appeared in a cause for two parties, and a petition was served upon him which affected one alone, but without any intimation in respect of which of these parties he was served, and he appeared on the hearing for both, it was held that the party who had no interest in the matter was entitled to his costs. Kilminster v. Noel, 12 Beav. 246. 1. Wood v. Boucher, 40 L. J. Ch. 112. Tender of Counsel Fee. In England, where it is doubtful whether a party who is served should appear on the hearing, the petitioner, on serving such party, should tender him a sum sufficient to enable him to procure legal advice in the matter, and if such tender is not made the petitioner will be obliged to pay the costs of his appearing. In re Duggan, L. R. 8 Eq. 697. 528 Volume XVI. PHYSICAL EXAMINATION. See article PERSONAL INJURIES, ante, p. 371. PHYSICIANS AND SURGEONS. BY CHARLES H. STREET. I. PRACTICING WITHOUT A LICENSE, 525. 1. The Indictment Generally, 525. 2. That the Accused Practiced Medicine, 526. 4. Compensation, 527. 5. Negativing Statutory Provisos and Exceptions, 527. IL MALPRACTICE, 527. 1. In General, 527. 2. The Pleadings, 528. a. General Form of Declaration or Complaint, 528. c. Duty to Use Proper Treatment, 529. d. Allegations of Misconduct, 529. e. Ignorance and Want of Skill, 530. f. Negativing Contributory Negligence, 530. g. Indictments for Criminal Malpractice, 531. 3. Defenses, 531. a. Contributory Negligence, 531. b. Other Concurring Causes, 531. c. Judgment Previously Recovered by Physician, 532. 4. Instructions, 532. a. "Ordinary Skill," 532. b. Contributory Negligence, 533. c. Sufficiency of Evidence, 533 d. Various Other Matters, 533. 5. The Verdict, 534. 6. Malpractice as a Defense to Action for Services, 534 III. ACTION FOR WRONGFULLY CERTIFYING THAT PATIENT IS INSANE, 535. IV. PROCEEDINGS TO REVOKE LICENSE, 535. V. INDICTMENT for WrongfulLY PROCURING REGISTRATION, 535 CROSS-REFERENCES. As to Abortions, see article ABORTION, vol. 1, p. 62. And consult generally the General Index to this work. I. PRACTICING WITHOUT A LICENSE — 1. The Indictment Generally. - Statutes regulating the practice of medicine have been enacted in many jurisdictions. It is commonly provided that a person shall not practice as a physician or surgeon until he has obtained a license or certificate from one of the examining bodies named in the statute; and in some states it is further provided that the applicant must file his certificate and procure registration as a practitioner. Under all of these statutes the gist of the offense consists in practicing without having procured a license, or without having registered, and the indictment must affirmatively allege noncompliance with the law in one or both of these particulars.1 1. Richardson v. State, 47 Ark. 562; State v. Fussell, 45 Ark. 65; Jones v. State, 49 Neb. 609; State v. Čall, 121 N. Car. 643. In Arkansas, where the statute makes it a misdemeanor to practice medicine without being registered as a physician in the office of the county clerk, the gist of the offense consists in not being so registered, and an indictment which alleges that the accused practiced medicine without filing a certificate with the clerk of a certain county and without having a certificate of registration over the signature and official seal of any county clerk in the state does not charge any offense; both of these allegations being true, it does not necessarily follow that the accused was not registered as required by law. v. Fussell, 45 Ark. 65. State In Missouri failure of the defendant to comply with the regulations of the statute must be affirmatively averred in the indictment. State v. Hathaway, 106 Mo. 236. In Nebraska a person desiring to practice medicine must obtain a cer tificate from the state board of health, must file such certificate in the office of the county clerk of the county where he resides or in which he intends to practice, and upon removing into another county must cause the certificate to be filed and recorded in the office of the county clerk of the county into which he has removed. Under this statute an indictment alleging that the defendant practiced medicine and surgery in a designated county without having first obtained the required certificate from the state board of health has been held sufficient. Jones v. State, 49 Neb. 609. In North Carolina an indictment under Act 1889, c. 181, § 5, must directly allege that the accused has not registered and obtained the certificate required by said act. State v. Call, 121 N. Car. 643. In Texas an indictment is bad where it charges that the accused practiced dentistry in a given county without having obtained a license from the board of examiners of the first judicial district, when the statute merely provides that a certificate shall be procured from a board of examiners within the state, and does not require that it be obtained from the examining board of any particular district. Derrick v. State, 34 Tex. Crim. Rep. 21. Existence of Societies Named in Statute. - Where the statute makes it an offense to practice medicine without having first procured a certificate from one of the boards of medical examiners appointed by the societies men. tioned therein, it need not be alleged that the societies, corporations, or organizations named in the act are in existence. People v. O'Leary, 77 Cal. 30. Sufficiency of Indictment Following Language of Statute. - In their incidental requirements, the statutes of the various states differ so widely that any general classification is impossible. In framing the indictment, therefore, it is necessary to consult the local statute creating and defining the offense, and an indictment which substantially follows the words of the statute will generally be held sufficient. 1 2. That the Accused Practiced Medicine Necessity to Allege Facts. Where the statute defines the term practice of medicine," and provides that persons who perform certain acts shall be held to practice medicine within the meaning of the definition, the indictment must allege that the accused has performed one or more of the acts enumerated in the statute, and a general averment that he unlawfully practiced medicine is insufficient." - Different Methods Charged in Single Count. - If several methods of unlawfully practicing medicine are enumerated in the statute, an indictment may charge, in a single count, that the offense was committed in any one of the ways therein designated, or by all of them; and the accused may be convicted upon proof that he pursued any of the methods charged in the indictment.3 ment of medicine should be stated in the information. Antle v. State, 6 Tex. App. 202. 1. People v. O'Leary, 77 Cal. 30; that the particular branch or departHale v. State, 58 Ohio St. 676. Pleading Title of Statute. An information substantially following the language of the "act to regulate the practice of medicine in the state of California" (Pen. Code, pp. 625-629) need not plead the statute by its title or name. People v. O'Leary, 77 Cal. 30. 2. O'Connor v. State, 46 Neb. 157; Steuben County v. Wood, 24 N. Y. App. Div. 442; State v. Pirlot, 19 R. I. 695. State v. Carey, 4 Wash. 424. In Mississippi the statute defines practicing medicine to mean "to suggest, recommend, prescribe, or direct for the use of any person any drug, medicine, appliance, or other agency, whether material or not material, for the cure, relief, or palliation of any ailment or disease of the mind or body, or for the cure or relief of any wound, fracture, or other bodily injury, or any deformity," for compensation. Under this statute an indictment which alleges that the defendant did " practice and prescribe various medicines and herbs, and did then and there dose, administer, and apply said various medicines to the good people of Tunica county,' is insufficient. Dee v. State, 68 Miss. 601. Contra. In Texas it has been held sufficient to charge that the accused did practice medicine. It is not required In Virginia it has been held that an indictment alleging that the defendant did "practice medicine" sufficiently charges that he practiced as a physician within the meaning of Acts 1883, 1884. P. 597, § 92. Whitlock v. Com., 89 Va. 337. 3. State v. Bair, 92 Iowa 28; State v. Ragland, 31 W. Va. 453. Prescribing and Appending Letters "M. D." to Name. Where the statute forbids an unlicensed physician to prescribe a medicine or remedial agency for a fee, or to append the letters “ M. D." to his name, an indictment may allege that the defendant, without having complied with the provisions of the act, directed and recommended for the use of a certain person a drug, medicine, and remedial agency, put up in a paper box, on which he wrote directions to which he signed his name, and appended thereto the letters "M. D." Such an indictment is not bad for duplicity. Hale v. State, 58 Ohio St. 676. Practiced or Attempted to Practice. Under a statute making it an offense to practice or attempt to practice medicine without a license, an indictment may charge in a single count that the defendant practiced or attempted |