LIABILITIES 87 



opportunity to present his evidence to the con- 

 trary. The question of malpractice is one of fact, 

 and the burden of proof is upon the plaintiff. "*- 



58. Defenses. It is no defense in a suit for mal- 

 practice, that the practitioner was practicing ille- 

 gally, unless, sometimes, this illegal practice was 

 known to the person so employing him.^^ "How- 

 ever, if the party employ a person as a surgeon, 

 knowing him not to be one, he has no civil rem- 

 edy."*^ In a suit against a veterinarian for un- 

 skilled treatment, it appeared that the defendant 

 had sued plaintiff for the services rendered, and 

 that the plaintiff had, without protest paid the 

 bill before suit was entered. However, the court 

 held that this settlement was no bar to suit for 

 malpractice.^^ In a number of cases it has been 

 held that if suit has been brought for fees a judg- 

 ment for the physician will bar future suits for 

 malpractice, even when the claim of malpractice 

 has not been made in defense of claim for fees; ^^ 

 but in other cases it has been held that a suit for 

 fees will not bar future damages suits, unless the 

 claim of malpractice shall have been raised in the 

 action for fees.^^ 



42 Chase v. Nelson, 39 111. 4g Gates v. Preston, '41 N. Y. 

 App. 53; Winner v. Lathrop, 113; Blair v. Bartlett, 75 N. Y. 

 67 Hun, 511; Haire v. Keese, 7 150; Bellinger v. Craigue, 31 

 Phila. 138; Georgia N. R. Co. Barb. 534; Ely v. Wilbur, 49 

 V. Ingram, 114 Ga. 639; Styles X. J. L. 685; Dale v. Donald- 

 V. Tyler, 64 Conn. 432. son Lumber Co., 48 Ark. 188, 



43 Musser's Exr. v. Chase, 29 2 S. W. 703. 



Ohio 577. 4T Eessequie v. Byers, 52 Wis. 



44 Chitty's Blackstone (1858) 650; Lawson v. Conaway, 37 W. 

 B. Ill, 122, note, citing cases. Va. 159 ; Goble v. Dillon, 86 



45 Deeves v. Lockhart, 51 N. Ind. 327. 

 Y. Super. Ct. 302. 



