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.’’44 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. 
42Chase v. Nelson, 39 I. 
App. 53; Winner v. Lathrop, 
67 Hun, 511; Haire v. Reese, 7 
Phila. 138; Georgia N. R. Co. 
v. Ingram, 114 Ga. 639; Styles 
vy. Tyler, 64 Conn. 432, 
43 Musser’s Exr. v. Chase, 29 
Ohio 577. 
44 Chitty ’s Blackstone (1858) 
B. III, 122, note, citing cases. 
45 Deeves v. Lockhart, 51 N. 
Y. Super. Ct. 302. 
46 Gates v. Preston, 41 N. Y. 
113; Blair v. Bartlett, 75 N. Y. 
150; Bellinger v. Craigue, 31 
Barb. 534; Ely v. Wilbur, 49 
N. J. L. 685; Dale v. Donald- 
son Lumber Co., 48 Ark. 188, 
28. W. 703. 
47 Ressequie v. Byers, 52 Wis. 
650; Lawson v. Conaway, 37 W. 
Va. 159; Goble v. Dillon, 86 
Ind. 327. 
