Parish v. Foss

Jackson, Chief Justice. The question made here is, whether a physician who, •in consequence of the fact that the clerk of the superior court did not have a book in which he could register, did not succeed in doing so, under Code, §1409 (c) et seq., but being called by a patient, did practice, can recover his fees therefor, he having registered so soon as the book was obtained by the- clerk, and as soon as by writ of mandamus the clerk could have been made to furnish the book of registry. Under these facts, we think he ought to recover. He did his best to register, and did register as soon as he could. A physician is necessary in sickness. Is nobody to have his aid because a clerk neglects his duty? We hardly think such was the intention of the general assembly in passing the act of 1880 above cited, in the Code. The case is clearly distinguishable from illegal traffic in liquor without license, which does nobody good, or selling guano contrary to law, which is no case, of necessity, as the need of a physician, which is often matter of life and death. The doctor’s only remedy in this case was by mandamus to make the clerk furnish the book; but that would take time, and he could not have registered a moment sooner. Suppose he was needed to set a limb or perform a surgical operation to save life, is he to wait on a neglectful clerk until he gets a book ? We think not. The defendant called in the doctor to attend on his son. He was a regular physician. His subsequent registry shows it. No complaint is made of charges, nor is bad practice pleaded. The doctor must be paid. Judgment affirmed.