A Physician cannot maintain an action for his fees, for they are honorary, and not demandable of right; “and it is much more for the credit and rank of that body, (the physicians) and perhaps for their benefit also that they should be so considered; and I much doubt, says Lord Kenyon, whether they themselves would not altogether disclaim such a right, as would place them upon a less respectable footing in society, than that which they at present hold.” Chorley against Bolcot, 4 T. R. 317, see Appendix. It was contended in this case, that there was no authority in the books for placing physicians and barristers fees^[137] on the same footing; the regulation with regard to barristers being founded on grounds of public policy, as appears by a passage in Tacitus to which Mr. Justice Blackstone refers; in which passage it is taken for granted that Medici^[138] were entitled to a remuneration, because their situation was dissimilar to that of advocates.^[139]

But though a physician cannot recover his fees by process of law, yet pro concilio impenso et impendendo is a good and valuable consideration for an annuity; (9 Co. Rep. 50: 7 Co. Rep. 10. 28.) And this was formerly a very frequent mode of remuneration for professional services both in law and physic, though at the present day it does not frequently occur.

If a bond, bill, or note were given for medical attendance, the consideration would be good, though the original fees could not have been recovered. A distinction might we think be drawn between the fees of a physician and his travelling expenses, which are frequently considerable; but the case of Chorley and Bolcot, before cited, is against it.

If a medical practitioner passes himself off as a physician, (by no means an unfrequent practice in distant parts of the country) although he has no diploma, and no right to assume that character, he cannot maintain an action for his fees. Lipscombe v. Holmes, 2 Camp. 441. see Appendix. Though as a surgeon he might have recovered compensation: and even if he were no regular surgeon, the doctrine in Gremare v. Le Clerc Bois Valor, 2 Camp. 144. would entitle him to recover in an action of assumpsit. But query the authority of this case.^[140]

If there be any promise, a physician may receive on a quantum meruit, Shepherd v. Edwards; Hill 11. Jac. 2. Croke 370. In this case the plaintiff declared that he being a professor of physic and surgery had cured the defendant of a fistula and he had judgment. All physicians may practise surgery; (32 Hen. 8.) though surgeons may not encroach in physic; therefore query whether in this case the plaintiff did not sue as a surgeon; and the disease was one which in this day would clearly be classed as a surgical case. It was not so however in Dale against Copping, (Bulst. part 1. p. 39) when the promise of an infant to pay a certain sum to the defendant for curing him of the falling sickness was held binding, “for that this shall be taken as a contract, and that to be for a thing in the nature of necessity to be done for him, and the same as necessary as if it had been a promise by him made for his meat, drink, or apparel, and in all such cases his promise is good and shall bind him.”