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 ,11 . • 
 
 THE FIRST MEDICAL CASE IN THE PROVINCE 
 
 Before Upper Canada became a separate province, and 
 in 1788, Lord Dorchester divided the country afterwards to 
 be Upper Canada into four Districts, Luneburgh, Mecklen- 
 burgh, Nassau and Hesse, the chief part of whose inhabi- 
 tants were in the settlements at and near Cornwall, Kingston, 
 Niagara and Detroit respectively ; — Toronto was then a trad- 
 ing post of no consequence. 
 
 In each District was instituted a Court of civil jurisdic- 
 tion called the Court of Common Pleas: over each Court 
 presided three judges, all laymen, but the Detroit people 
 objected to laymen in their Court, and in 1789 William 
 Dummer Powell, a lawyer in Montreal of Boston birth, m-^s 
 made first (and only) judge of that Court. 
 
 In the other Districts, however, the original scheme pre- 
 vailed: in Mecklenburgh the judges were Richard Cart- 
 wright, Neil McLean and James Clark. 
 
 Before that Court in the summer of 1790 came the first 
 medical case ever tried within the territory afterwards 
 Upper Canada, and now Ontario. 
 
 Macauley and Markland sued Jarafes Connor, a surgeon 
 (he is found in the United Empire list as " Surgeon, Hospi- 
 tal Mate") for £43 " 18s. currency ($175.60) balance of ac- 
 count. On March 31st, 1790, the Court sat, all three judges 
 being present — the Sheriff returned the summons duly 
 served — the plaintiffs filed a declaration. Dr. Connor ap- 
 peared and stated "that the accounts rendered him by the 
 plaintiffs were very inaccurate and many charges made 
 against him which he could not agree to settle in the state 
 it was rendered him. and that the overcharges amounted to 
 £1 " 11 " G " ($6.30). Besides he claimed to have an account 
 against Robert Macauley one of the plaintiffs for "medi- 
 cines and attendance amounting to the sum of £30" ($200). 
 He admitted in answer to a question from the Bench that 
 the firm were not liable for a private ddbt of Macauley and 
 that in any case Mlacauley had a private account against 
 
 AT' 
 
him not included in the amount sued for. The Court de- 
 termined that they must take time to consider the merits 
 of the case and order the parties to appear on the first day 
 of July. 
 
 The plaintiffs did so, but the defendant did not, and ac- 
 cording to the practice of the Court a default was entered 
 against him ; on the 3rd however he appeared in person and 
 had the default removed, and an order made for trial on the 
 following Monday, July 5th. 
 
 On that day, Robert Macauley produced his private ac- 
 count for a box of medicine against the defendant £60 
 ($240), and this account was by order of the Court added 
 to the amount demanded by the declaration. The defendant 
 said the " said chest of medicines was not really worth sixty 
 shillings," but admitted getting it — he produced his account 
 against Macauley for " medicines and attendances in Cureing 
 a broken Leg, amounting to £50." Macauley declared that 
 "the Charge is exoi<bitant for the Miedicine and Attendance 
 that have been given." 
 
 Connor " alledges that his charge is not extravagant nor 
 without a precedent and that the Cure he performed was 
 of a dangerous Nature and that he is Justly entitled to the 
 Amount he demands for the said Cure." 
 
 He called a witness, Mr. Joseph Forsyth, who swore that 
 he had " heard it publickly reported in Montreal that Mr. 
 Murray had paid Dr. Bleak Fifty pounds for Cureing a 
 Broken Leg, which was allowed by the Court in that Dis- 
 trict" whereupon the Court did "not consider themselves 
 Competent to Judge of the Nature of the defendants charge 
 without Consulting the oppinion of professional men upon 
 the Subject and do therefore call upon Jas. Latham and 
 Jas's Gill, Surgeons, for their oppinion." 
 
 Dr. Latham said that " charges Generally depend on the 
 Circumstances of the patient and that he had known from 
 Two pounds to One Hundred Guineas paid for cures of this 
 kind " ; and that " considering all the circumstances in this 
 Case "he would think himself very Honorably paid by 
 Thirty Guineas" and would think himself entitled to charge 
 that amount. 
 
 Dr. Gill had only attended Soldiers, but Professional men 
 in the Province charged from Ten to Seventy Pounds accord- 
 ing to Circumstances, he would charge at least Ten Pounds 
 
k 
 
 for each Fracture for reducing it alone and for Medicine 
 extra. 
 
 The Court took the case under consideration and on the 
 following Thursday, July 6th, 1790, they gave judgment 
 against the defendant for £13 " 6 " 6 currency (=$53.30) 
 and costs. It is invpossible to say how this sum was arrived 
 
 at — perhaps the original bill for , £43 " 18 " 
 
 was reduced by the amount claimed as reduc- 
 tion by defendant £1 " 11 " 6 
 
 to £42 "6 "6 
 
 and the defendant was allowed on the balance of 
 his claim for Medical Service over the value of 
 the Chest of Medicine, "not worth 60 shill." £29 " " 
 
 leaving net balance £13 " 6 " 6 
 
 but this is a mere guess. 
 
 There are several matters of interest in this case which 
 may be noted. 
 
 The personnel of the Court — three judges, not one, and 
 these all laymen, not lawyers. Richard Cartwright came 
 from New York State a United Empire Loyalist and be- 
 came a merchant with a large business and trade connec- 
 tion ; he was afterwards one of the memliers of the first Legis- 
 lative Council of Fpper Canada, being appointed July 16th, 
 1792, and was one of the two Legislative Councillors whom 
 Simcoe charged (most unjustly) with "Republican sentiments. 
 He was the grandfather of Sir Richard Cartwright, James 
 S. Cartwright, K.C., formerly Master in Chambers, both now 
 deceased, and of John R. Cartwright, K.C., our efficient 
 Deputy Attorney- General. . 
 
 The other two judges were well-known residents and 
 magistrates. 
 
 The practice was regulated by the Ordinance passed at 
 Quebec of April 21st, 1785, 25 George III., cap. 2, as modified 
 by the Ordinance of May 7th, 1789, 29 George III., cap. 3. 
 Where, as in this case, the claim was for more than £10 ster- 
 ling, the plaintiff drew up a declaration setting up his causes 
 of complaint and presented it to a judge. The judge made 
 an order which was presented to the Clerk of the Court who 
 issued a Writ of Summons commanding the defendant tf» 
 appear upon a day named. A copy of the Writ and of the 
 
 3 
 
 ^-^0 50 5^ 
 
Summons was serwtl by the Sheriff, and tlie defendant ap- 
 pearing, the matter was tried. Either party might appear 
 in person, or by attorney, or by written and formal Power of 
 Attorney have some other layman appear and not for him. 
 
 By tho Ordinance of 1789, sec. 11, in cases in the new 
 Districts any evidence in cases where the title to the free- 
 hold was not in question was allowable which satisfied either 
 " the ancient or present Laws of this Province," {i.e., the 
 French Canadian Law) or "the Laws of England." 
 
 Either party might call for a jury: but unless a jury 
 were demanded, the case was tried by the judges. 
 
 In allowing the set off or counterclaim to be set up. the 
 Court went far beyond the limits at that time observed in 
 English Courts: the evidence as to the amount allowed a 
 surgeon in the Court at Montreal would not now be allowed 
 in any British Court, being the grossest hearsay. 
 
 And in conclusion notwithstanding the increase in pro- 
 fessional fees and the high price of living, many a medical 
 man even now would consider £50 or £200 a pretty good fee 
 for setting a broken leg — much more 100 guineas. 
 
 William Eenwick Riddell.