may detail and describe facts, incidents, conversations and actions coming under his personal observation, and may characterize what he has described as in his judgment rational or irrational. He can go no farther; while the qualified expert may express his opinion, based upon the same facts, whether the person whose capacity is under consideration is mentally sound or unsound.

Experts are persons instructed by experience, men of science, persons professionally acquainted with the science or practice in question. The opinions of medical men are constantly admitted as to the cause of disease or of death, or the consequences of wounds, and as to the sane or insane state of a person's mind, as collected from a number of circumstances, and as to other subjects of professional skill; and such opinions are admitted in evidence, though the witness founds them, not on his own personal observation, but on the case itself as proved by other witnesses on the trial. But where scientific men are called as witnesses, they cannot give their opinions as to the general merits of the cause, but only their opinions upon the facts. The expert cannot usurp the functions of the jury, who are charged with the duty of determining the general merits of the controversy. A medical man cannot testify that a particular act is an act of insanity, but he must confine his opinion to the mental condition of the person under consideration. Expert witnesses are frequently asked hypothetical questions; but the rule seems to be well settled in this State that the hypothesis must be based upon facts admitted or established by the evidence, or which, if controverted, the jury might legitimately find in weighing the evidence. Purely imaginary or abstract questions, assuming facts or theories for which there is no foundation in the evidence, are not admissible as matter of right upon a direct examination. The test of an expert witness is usually upon cross-examination, where abstract or theoretical questions not founded upon the facts of the case on trial may be put for the purpose of testing the knowledge and information of the witness as to the subject upon which he has been examined, and his competency to give the opinion which he may have pronounced upon his direct examination. It becomes important therefore for the physician or surgeon to be well-grounded in the general principles of medical science, and to become especially well prepared, if there be opportunity, upon the matters which are the subject of judicial inquiry in the particular case.

It will be impracticable in this paper to go farther into the details of medical expert evidence. The subject is as varied as the ailments and diseases and accidents which mortals suffer; and I can only make the general suggestion, which after all is only a platitude, that the medical man who goes to the witness' stand the most thoroughly prepared will be the most likely to acquit himself with credit and make himself useful in elucidating the intricate and doubtful medical questions which so often become the subject of judicial investigation. The value of expert testimony is greatly diminished by the contradictions of witnesses. It is notorious that the " doctors disagree," and it seems sometimes to the modest layman that the uncertainties of medical science are as great as the alleged uncertainties of the law. It has been suggested by writers of great weight that there might be a real danger that we may become subject to the tyranny of experts. "Experts who are very deeply versed in their peculiar branch of knowledge are apt to fix their attention on that alone, and to disregard all the rest of the world in which they live, and to which after all they have to apply their skill. They come then to have very uncompromising opinions, a more than papal confidence in their own infallibility, and a thorough contempt for any unfortunate circumstances which may seem to conflict with their judgments. But in judicial

inquiries it is impossible to accept with unreasoning faith any man's judgment, however special may be his knowledge. Judges and juries are bound to take into account other things besides the opinions of any experts, however eminent." These remarks do not apply to the physician or surgeon in general practice, who may occasionally be called into court to give expert testimony, but to those specialists, not only in medicine but other sciences, who sometimes impress the spectator with the belief that they are in court for the purpose principally of either sustaining or destroying a theory. Experts should not be the champions of either side in a legal controversy, but advisers of the court, and not until they shall have been elevated to that rank, will they have attained their true place and influence. A few years ago the Medico-Legal Society of France had, and I suppose how has, a permanent commission of experts in medical jurisprudence, to which questions coming from the courts or other sources were referred; and most difficult questions were submitted to the commission by tribunals, magistrates, advocates and others, with the result that the advice of the commission was usually taken in the judgments and decisions in the cases in which such questions were important features. Probably such a commission is impracticable with us; and as long as the present system continues, every medical practitioner must expect to be called to testify upon matters where at best he can only give an opinion, and the value of his opinion will depend upon his character, his skill, his learning and his experience.

The third classification of evidence relates to the confidential character of the information acquired by a physician in the course of his professional labors. This information is, as a general rule, privileged. Hippocrates, the great Grecian physician, who has been called the Father of Medicine," and who lived more than four hundred years before the beginning of the Christian era, is said to have exacted from his pu pils an oath not to divulge professional secrets. Whether he and his pupils would have been compelled in judicial proceedings to disclose information received from their patients in a professional capacity, I am unable to discover. Probably they were not privileged. Under the Roman law, an advocate could not give evidence in a cause in which he had been engaged; but I find no rule excluding the testimony of physicians. Under the English common law physicians were required to testify to information confided to them by their patients, although in a strictly professional way. This harsh rule was changed by our Revised Statutes of 1830, and physicians and surgeons were prohibited from disclosing any necessary information acquired from their patients while attending them professionally. This rule has continued in force since that time.

Section 834 of the Code of Civil Procedure provides that "a person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." The object of the statute defines its limits; it is operative between persons uamed, and applies to a certain state or condition of facts; it operates between the physician and patient, whenever that relation exists, and its object is to compel secrecy as to any information so acquired by the physician in attending his patient, and which was necessary to him while acting in that capacity. The information must have been acquired by the physician while professionally attending a patient. The physician or surgeon may be compelled to disclose any unnecessary information so acquired. The privilege is that of the patient and not of the witness, and may be waived. The party objecting must make it appear that the evidence offered is within the statutory ex

be stated that the physician is entitled to a reasonable compensation, taking into consideration the seriousness of the malady treated, and the length of time and the degree of skill required; and in case of a contest over the value of the services, other physicians, competent by learning and experience, may testify to their value. Medical societies have no power to bind their members by a tariff of prices, and a member who accepts less fee for his services than that fixed by the bylaw of the society cannot be expelled therefor. Such action by the Erie County Medical Society fixing prices was held to be void, as being unreasonable, against pub. lic policy and contrary to law. The skill of the professional man is his capital in trade, and he has a right to employ it for a compensation satisfactory to himself, and thus obtain a livelihood. And while physiciaus, as well as other classes of men, may agree among themselves upon a tariff of prices, medical societies organized under the law of this State have no power to compel compliance with such a tariff by using the right of expulsion. In an action to recover compensation for services, it has been held that it is no defense to show that the physician had mistaken the malady, and treated the patient for a disease which he did not have, unless it also appears that the plaintiff did not exercise proper care and skill. If a physician ignorantly and unskillfully administers medicine, and the patient consequently derived no benefit from his attendance, the physician is not entitled to any remuneration for what he has done; but if he has employed the ordinary degree of skill of his profession, and has applied remedies fitted to the complaint, he is entitled to his hire and reward although they may have failed in the particular instance. He would be entitled to pay for his services.

It is also well settled that a judgment for services is a bar to an action for damages against the physician. Such a judgment conclusively establishes the value of the services. On the other hand, a judgment against the physician for damages is a bar to an action for services. Such a judgment conclusively establishes the fact that the services were of no value. The party who gets the first judgment has a very decided advantage.

A question of considerable importance to physicians is that relating to extra compensation as an expert. This can only become important when a professional opinion is desired. Upon questions where the physician speaks to facts within his knowledge, he is like any other witness, and is bound to testify for the same compensation. But where his professional knowledge, learning, skill or experience is drawn upon, and his professional opinion invoked, the question arises, can he insist upon the payment of a professional fee before testifying? I am not aware of any decision in this State directly upon this question, though the practice of paying experts is quite generally recognized; but in England, and in some of the American States, the rule has been established that a witness called upon to give his opinion on a subject with which he is peculiarly conversant from his employment in life, is under no obligation to testify without additional compensation. The physician's skill and knowledge are his stock in trade, and he cannot be compelled to donate any part of his capital to assist litigants in settling their disputes. It would be a great hardship if a physician or surgeon must be subject to be called from his home and business to give a valuable professional opinion without reward at the call of a private litigant, perhaps a stranger, when he knows nothing about the merits of the controversy.

It is customary for the public prosecutor to arrange for expert testimony in important criminal cases, and agree upon the compensation therefor. The defendant may of course make the same preparation for defense, but in case of a defendant who is poor, whose counsel are assigned by the court, and whose witnesses are

subpoenaed by the sheriff, by an order of the court, the question becomes a serious one whether physicians summoned as witnesses in such a case can refuse to testify as experts. So humane is our law that in such a case the whole power of the county is placed at the disposal of the defendant to assist him in preparing his defense. Witnesses must respond to a subpœna, and must testify to what they know concerning the facts without fee; and unless unable to do so, must pay their own expenses. Has the defendant in such a case the right to appropriate to his own use, without compensation, the skill or knowledge or experience of the expert? and will the court compel the expert to surrender his opinions, which are his property, as a gratuity? If it can be done in such a case, it can be done in any case, even where the defendant is able to pay for the evidence. The question, after all, is not one of ability to pay for the evidence, but of the right to demand it; and it seems to me that a party to a litigation, either civil or criminal, has no more right to demand the skill of the expert without reward than he has to demand of any citizen a fixed sum in addition to his taxes because he may happen to need it. In an Indiana case, tried in 1877 (Buchman v. State, 17 Alb. L. J. 242), Dr. Buchman was called as a witness at the trial of one Hamilton for rape. He was asked a question calling for an expert opinion. He refused to auswer unless reasonably compensated before testifying as a medical expert.' He refused to answer another question, saying that this answer would depend upon his professional knowledge of the subject, and he would not give it without being paid. The trial court held that he was required by law to answer the question without compensation other than the ordinary witness' fees; and the witness persisting in his refusal to answer, he was committed as for a contempt. He appealed to the Supreme Court, which reversed the decision of the trial court, reviewing all the authorities and holding that he could not be compelled to give a professional opinion without additional compensation. A similar question arose in Illinois in 1885 (Wright v. People, 33 Alb. L. J. 79; 112 Ill. 540), where in an action for an assault and battery a witness, who was a physician, was called to testify in behalf of the plaintiff on the trial, and stated that he was called to see the plaintiff professionally after the injury, and described the condition in which he found the patient. He was asked a question, based upon his evidence, calling for his professional opinion, which he declined to answer without first being paid his usual fee of $10. On appeal from an order punishing him for a contempt, it was held that, having already, and without objection on his part, stated the condition of the patient he had visited professionally, the witness could not properly refuse to give his opinion as to the cause of the symptoms he discovered to exist, and this without a professional fee being paid or secured therefor. The opinion sought to be elicited was pertinent to the subject upon which he had voluntarily testified. This question still remains in doubt. Since the decision of the Indiana case, the Legislature of that State has passed an act by which experts are compelled to testify without extra compensation. It was said in one case in this State that a physician cannot be compelled to examine a case for the purpose of making himself a witness, nor to attend, hear and consider the testimony given so as to be qualified to give a deliberate opinion upon a question of science arising upon such testimony (13 Abb. Pr. [N. S.] 207; People v. Montgomery), but the question of his right to refuse to answer expert questions without extra compensation was not considered. There is no rule upon the subject in this State, and every expert witness must exercise his own judgment in each case as to the advisability of refusing to answer or of making some previous arrangement for compensation.

It has happened in human experience that physicians have been charged with crimes growing out of their practice, and there have developed in our legal system rules intended to apply to the criminal liability of the medical profession. The Penal Code contains a few sections on this subject, which I quote:

§ 190. The willful killing of an unborn quick child by any injury committed upon the person of the mother of such child is manslaughter in the first degree."

"§ 191. A person who provides, supplies or administers to a woman, whether pregnant or not, or who prescribes for or advises or procures a woman to take any medicine, drug or substance, or who uses or employs, or causes to be used or employed, any instrument or other means with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve her life, in case the death of the woman or of any quick child of which she is pregnant is thereby produced, is guilty of manslaughter in the first de. gree."

"§200. A physician or surgeon, or person who practices as such, who, being in a state of intoxication, without a design to effect death, administers a poisonous drug or medicine, or does any other act as a physician or surgeon, to another person, which produces the death of the latter, is guilty of manslaughter in the second degree.";

§ 294. A person who, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve the life of the woman, or of the child of which she is pregnant, either

"1. Prescribes, supplies or administers to a woman whether pregnant or not, or advises or causes a woman to take any medicine, drug or substance; or

2. Uses or causes to be used any instrument or other means,

§ 357. A physician or surgeon, or person practicing as such, who, being in a state of intoxication, administers any poison, drug or medicine, or does any other act, as a physician and surgeon, to another person, by which the life of the latter is endangered, or his health seriously affected, is guilty of a misdemeanor."

§ 297. A person who manufactures, gives or sells an instrument, a medicine or drug, or any other substance, with intent that the same may be unlawfully used in procuring the miscarriage of a woman, is guilty of a felony."

Section 318 provides that a person who sells, lends or gives away, etc., any instrument or article, or any recipe, drug or medicine for the prevention of conception, or for causing unlawful abortion, or who advertises or gives information orally concerning, or manufactures any such instrument, etc., is guilty of a misdemeanor.

"§ 321. An article or instrument used or applied by physicians lawfully practicing, or by their direction or prescription, for the cure or prevention of disease, is not an article of indecent or immoral nature or use within this chapter. The supplying of such articles to such physicians, or by their direction or prescription, is not an offense under this chapter."

Section 193 also provides, among other things, that the killing of a person, when committed without a design to effect death, by the "culpable negligence of any person, is manslaughter in the second degree. This includes criminal negligence by a physician or surgeon, resulting in the death of his patient. This is

son, whether a medical man or not, profess to deal with the life or health of another, he is bound to use competent skill and sufficient attention; and if he cause the death of the other through the gross want of either, he will be guilty of manslaughter." 1 Bish. Cr. Law, § 314. If the injury falls short of the deprivation of life, he may be punished for a misdemeanor. Id., § 558.

Section 194 of the Penal Code provides that "a woman quick with child who takes or uses, or submits to the use of any drug, medicine or substance or any instrument or other means with intent to produce her own miscarriage, unless the same is necessary to preserve her own life or that of the child whereof she is pregnant, if the death of such child is thereby produced is guilty of manslaughter in the second degree." This makes the crime of the woman one degree lower than that of the person who advises or assists in producing an abortion. It has already been observed that the druggist who furnishes the means to produce an abortion is equally guilty with the physician who advises it.

This paper has already grown to such a length that a further discussion of this subject is impracticable. Every physician will admit that the frequency of intentional abortion in this country is simply frightful. Yet prosecutions for this crime are rare. This is doubtless partly due to a laxity of public opinion upou this subject, and possibly ignorance as to criminality, even among well-educated persons. There is also in these cases great difficulty in obtaining competent evidence, either against the woman or against the physician or druggist. Medical testimony is almost indispensable in such a case, and, as I have already shown, the physician who acquires his information professionally cannot be compelled to testify, and the woman cannot, if particeps criminis, be made a witness against another charged with the crime, for she would thereby criminate herself. In view of this state of things, there rests upon the conscientious physician an extraordinary responsibility in thwarting attempts at child murder, and he has also an extraordinary opportunity to correct the present loose notions upon this subject.

LITTLE VALLEY, N. Y.

CHARLES Z. LINCOLN.

CORPORATIONS-POWERS-GAS TRUST.

ILLINOIS SUPREME COURT, NOV. 26, 1889. PEOPLE, EX REL. PEABODY, V. CHICAGO GAS TRSUT COMPANY.

*

A corporation formed for the purpose of manufacturing and selling gas under the General Incorporation Law, which provides (R. S. Ill., chap. 32, § 5) that corporations formed under it " may own so much real and personal estate as shall be necessary for the transaction of their business, * and may have and exercise all the powers necessary and requisite to carry into effect the objects for which they may be formed," has no power to purchase and hold or sell shares of stock in other gas companies, as an incident to the purpose of its formation, even though such power is specified in its articles of incorporation.

Under the Revised Statutes of Illinois, chapter 32, section 1, which provides a method for the formation of corporations "for any lawful purpose," a corporation cannot be formed to purchase and hold or sell the capital stock of any gas or electric company in Chicago or elsewhere in Illinois; "the object of such corporation, as tending to create a monopoly, not being a "lawful purpose."

that "if a man take upon himself an office or duty requiring skill or care, if, by his ignorance, carelessness or negligence, he cause the death of another, he will be guilty of manslaughter." Specifically, "if a per

warranto on the relation of F. B. Peabody against the Chicago Gas Trust Company. The Circuit Court overruled demurrers to defendant's pleas, and plaintiff appeals.