menced making a search against the property, and immediately drew up the papers in an action upon the bond and mortgage, which were served on the defendants on the afternoon of the day of the purchase," without making any demand; and that he gave his note for such bond and mortgage, payable on the 1st day of May thereafter, without interest. Maxon V. Cain (1897) 22 App. Div. 270, 47 N. Y. Supp. 855.

Where the evidence showed that the plaintiff took the note in suit with the intent and for the purpose of bringing suit upon it, "the burden thus rested upon him to show that he took it under circumstances bringing the case within the exception contained in" the statute. Lieberman v. Mandel (1906) 98 N. Y. Supp. 201.

The object of the statute has been stated to be to prevent purchases of things in action, for the purpose of obtaining costs by the prosecution. thereof. Baldwin v. Latson (1847) 2 Barb. Ch. 306; Moses v. McDivitt (1882) 88 N. Y. 62; De Forest v. Andrews (1899) 27 Misc. 145, 58 N. Y. Supp. 358; Wightman v. Catlin (1906) 113 App. Div. 24, 98 N. Y. Supp. 1071. The prohibition extends to suits in equity. Baldwin v. Latson, supra; Hall v. Bartlett (1850) 9 Barb. 297 (not necessary to decision); Brotherson v. Consalus (1863) 26 How. Pr. 213 (obiter); Mann V. Fairchild (1865) 2 Keyes, 106; Maxon v. Cain, supra.

In Hall v. Gird (1844) 7 Hill, 586, where the act done was not within the scope of this note, it was considered that the provisions in the Revised Statutes for a nonsuit, in case of a champertous purchase by an attorney, were confined to actions at law, and did not apply to chancery proceedings. But in Baldwin v. Latson, supra, the chancellor said: "The case of Hall v. Gird, supra, only decides that the particular remedy given to the defendant by a subsequent section of the statute does not apply to suits in chancery," and he took the view that the statute would be a good defense in chancery, as there would have been no title in the complainant.

It has been held that the statute is intended to apply only to practising attorneys. Thus, a person admitted to the bar in 1893, who maintained an office for about a year and had not practised thereafter, and who had not filed the certificate required to be filed by all practising lawyers by the Act. of 1898, was held not to be, in 1904, an attorney at law, within the statute prohibiting the purchase of claims by attorneys, etc. Thompson v. Stiles (1904) 44 Misc. 334, 89 N. Y. Supp. 876.

Limits of the act.

"As the law now stands, an attorney is not prohibited from discounting or purchasing bonds and mortgages and notes, or other choses in action, either for investment or for profit, or for the protection of other interests, and such purchase is not made illegal by the existence of the intent on his part at the time of the purchase, which must always exist in the case of such purchases, to bring suit upon them, if necessary for their collection." Moses v. McDivitt (1882) 88 N. Y. 62. See under the North Dakota statute, STARKE v. WANNEMACHER (reported herewith), ante, 167.

"It is plain that it was not within the intent of the legislature to say that an attorney should be outlawed, and deprived of the privileges which were accorded other men in the purchase of claims, bonds, notes, etc. It was only the abuse of purchasing with the intent and for the purpose of bringing the action, that the attorney might be benefited by the costs which his own action had produced, which the legislature prohibited." Wightman v. Catlin (1906) 113 App. Div. 24, 98 N. Y. Supp. 1071.

The statute does not prevent a purchase by an attorney for the purpose of protecting some other right of the assignee, such as taking a bond to secure an existing debt (West v. Kurtz (1888) 15 Daly, 99, 3 N. Y. Supp. 14), or purchasing a bond and mortgage to secure an existing right (Baldwin v. Latson (1847) 2 Barb. Ch. 306), or purchasing a bond to use it as a means of inducing the defendant to assign stock (Moses v. McDivitt, supra).

It was held to be error to instruct the jury that if the plaintiff's intention in buying a bond "was to use it to compel the defendant to do a particular thing, as to assign stock, for instance, and if he would not comply with his wishes to sue it, that would be a violation of the statute." Ibid.

In Epstein v. United States Fidelity & G. Co. (1899) 29 Misc. 295, 60 N. Y. pp. 527, it seems to have been held that the defendant in attachment might assign to her attorneys, for their services therein, her cause of action and right to recover damages under the undertaking, and that this would be within the exemptions of the statute.

The statute does not forbid the buying by an attorney of the fee of land with the intent of suing for it (Townshend v. Fromer (1888) 15 N. Y. Civ. Proc. Rep. 8, 2 N. Y. Supp. 703), nor does it relate to purchases of corporation stock (Ramsey v. Gould (1870) 57 Barb. 398, 8 Abb. Pr. N. S. 174), nor to purchases of chattels (Van Dewater v. Gear (1897) 21 App. Div. 201, 47 N. Y. Supp. 503); see under the Michigan statute Town v. Tabor (1876) 34 Mich. 262, infra, III. a.

It has been held in one case that the purchase of the cause of action in a pending suit by the plaintiff's attorneys was not against the statute, forbidding the purchase of claims for the purpose of bringing a suit thereon, as the suit was already brought. Wetmore v. Hegeman (1882) 88 N. Y. 69.

The statute does not prevent an attorney from buying a judgment for the purpose of collecting it by execution. Brotheson v. Consalus (1863) 26 How. Pr. 213; Warner v. Paine (1847) 3 Barb. Ch. 630 (not necessary to result).

In Fay v. Hebbard (1886) 42 How. Pr. 490, the court expressed the opinion that the statute did not prevent the purchase by an attorney of a judgment, with the intent and purpose of having it declared a lien on land conveyed by the judgment debtor, on the ground that the conveyance was a mortgage.

The purchase must be for the very

purpose of bringing a suit (now "action") thereon. "A mere intent to bring a suit on a claim purchased does not constitute the offense; the purchase must be made for the very purpose of bringing such suit, and this implies an exclusion of any other purpose. . . Such purchase is not made illegal by the existence of the intent on his part at the time of the purchase, which must always exist in the case of such purchases, to bring suit upon them, if necessary for their collection. To constitute the offense, the primary purpose of the purchase must be to enable him to bring a suit, and the intent to bring a suit must not be merely incidental and contingent." Moses v. McDivitt, supra.

In an action by an attorney to recover damages for the conversion of articles of personal property, it was held that an averment of the answer that while the defendant G., a constable, was in possession of the property under an attachment, the plaintiff drafted the bill of sale from the seller to himself, and procured its delivery "with the intent on the part of the plaintiff to bring this suit," was insufficient, as the mere intent to bring suit upon a claim does not offend against the statute. "There must exist an intent to obtain title for the purpose of commencing an action." Van Dewater v. Gear (1897) 21 App. Div. 201, 47 N. Y. Supp. 503.

In West v. Kurtz (1888) 15 Daly, 99, 3 N. Y. Supp. 14, where the trial court, being requested to charge "that if the jury believe that the bond was transferred to the plaintiff as collateral for an advance of moneys made in February, 1885, that that took the transaction out of the operation of the statute respecting the bringing of suits by attorneys in their own names," replied: "I can hardly say that it was not taken out of the statute unless transferred free from the intention of bringing a suit. I think, if so taken, that it is right to charge as you request," it was held that this was too broad.

In sustaining a demurrer to an answer alleging that the plaintiff took the assignment of the bond sued on in

violation of the statute, the court said: "Although the defendant avers, in terms, that the plaintiff took the assignment of the bond in suit with the intent and purpose of bringing an action thereon against the defendant, the facts which he pleads in support of this utterly fail to sustain his conclusion. It has been held that the object of the statute (Code Civ. Proc. § 73) was to prevent attorneys from buying claims for the purpose of obtaining costs by the prosecution thereof, and that to constitute the offense the purchase must be for the very purpose of bringing such suit and for none other. Baldwin v. Latson (1847) 2 Barb. Ch. 306; Moses v. McDivitt

(1882) 88 N. Y. 62. No such purpose is disclosed upon the face of the pleading." De Forest v. Andrews (1899) 27 Misc. 145, 58 N. Y. Supp. 358.

The purchase itself is not alone sufficient evidence of the intent. Hall v. Bartlett (1850) 9 Barb. 297; Creteau v. Foote & T. Glass Co. (1899) 40 App. Div. 215, 57 N. Y. Supp. 103 (obiter); Oldmixon v. Severance (1907) 119 App. Div. 821, 104 N. Y. Supp. 1042 (where the plaintiff disclaimed any personal interest). See, under the California statute, Bulkeley v. Bank of California (1885) 68 Cal. 80, 8 Pac. 643, supra, III. a.

That the assignor and the assignee both had the same lawyer, who had offices with the assignor, is no evidence that the lawyer purchased the claim, and did it contrary to the statute. Wightman v. Catlin (1906) 113 App. Div. 24, 98 N. Y. Supp. 1071.

If an attorney advises a number of owners of property assessed by a telephone line to assign their claims for damages to one person, who then employs such attorney to bring an action on a contingent fee, the attorney, not being directly or indirectly the purchaser of the claims, there is no violation of the statute. Blashfield v. Empire State Teleph. & Teleg. Co. (1892) 18 N. Y. Supp. 250.

The phrase, "for the purpose of bringing any suit," in the earlier form of the statute, did not include the purpose to prosecute a suit in another state (Roe v. Jerome (1846) 18 Conn.

138), nor the purpose to prosecute a suit in justice's court, where the attorney is not entitled to any costs (Goodell v. People (1862) 5 Park. Crim. Rep. 206); nor did it include the purpose of a proceeding to foreclose a mortgage by advertisement, as that is not a "suit" within the statute, although there are costs, as the statute is penal and not to be extended beyond its natural meaning (Hall v. Bartlett, supra). Nor do the present words, "for the purpose of bringing an action," include a special proceeding; thus, the statute does not prevent an attorney from buying a claim against the estate of a decedent which he believes has been allowed by the administratrix, with the view of calling her to account before the surrogate. Tilden v. Aitkin (1899) 37 App. Div. 28, 55 N. Y. Supp. 735.

It is, of course, clear that an assignment by the creditor to an attorney, the beginning of a suit, its discontinuance, and the reassignment to the creditor do not impair the creditor's title. Creteau v. Foote & T. Glass Co. (1899) 40 App. Div. 215, 57 N. Y. Supp. 1103.

It has been held in one case that the donee or assignee of the attorney who makes the forbidden purchase takes a good title, though knowing the illegal purpose, and that the statute is no defense to such donee or assignee. Beers v. Washbond (1903) 86 App. Div. 582, 83 N. Y. Supp. 993, where the attorney gave the bond and mortgage he had bought to his wife. The court said: "It would seem to us that every purpose of the statute would be satisfied by denying to the attorney the use of the courts for the purpose of prosecution. To give to his assignee, whether by gift or for value, the right to enforce a claim, has in it none of the mischief sought to be prevented by the statute. If that assignee be a dummy so that the prosecution be in fact made in the interest of the attorney, although in the name of another party, the court might well refuse relief. If the title of

the subsequent holder of every such security were subject to challenge by reason of the intent with which that

attorney had purchased, it would cast a suspicion upon all securities passing through the hands of attorneys, and would leave a subsequent holder at the mercy of an unscrupulous attorney through whose hands the security had passed, who might make proof of his secret intent in his purchase thereof which it would be impossible to disprove." See, in this connection, Cooke v. Pool (1885) 25 S. C. 593, supra, III. a.

There is some apparent confusion as to whether the question under the statute is one for the court or the jury. Under the early form of the statute (up to 1877) there was a provision for a nonsuit. And in Orcutt v. Pettit (1847) 4 Denio, 233, it was held that where it was defended that the plaintiff's demand had been bought and sold, or received for prosecution, contrary to law, and there was evidence tending to show a purchase by an attorney, that the court must determine the question; as, if the defense was established, the plaintiff must be nonsuited, which the jury could not do; and that, in this case, the trial court, having found that there had been no violation of the statute, correctly directed the jury to find a verdict for the plaintiff. On the other hand, in Browning v. Marvin (1885) 100 N. Y. 144, 2 N. E. 635, where the question does not seem to have been distinctly raised, it was held that the court correctly charged the jury that, if the purchase in question was made by an attorney for the purpose of putting the claims in suit, a suit would not lie upon the claims thus purchased, it being further held that the jury's finding was conclusive as to the identity of the person buying and the object

with which the claims were bought. And in Carpenter v. Cummings (1897) 20 Misc. 661, 46 N. Y. Supp. 252, in reversing, because evidence of the violation of the statute had been wrongfully excluded, the court said that the defense, "if proved at trial to the satisfaction of the jury, must compel a verdict for defendant,"-citing Browning v. Marvin, supra. The Browning Case was also cited on this point in Gescheidt v. Quirk (1883) 66 How. Pr. 272, 5 N. Y. Civ. Proc. Rep. 38, where, however, it was held that the plaintiff had waived the point. The court seems to have overlooked the change in the statute, in Gilroy v. Badger (1899; City Ct.) 27 Misc. 640, 58 N. Y. Supp. 392, holding it to be error, where the defense of the statute was set up, to send the case generally to the jury and take a general verdict for the defendant. The court quotes a reference to the early form of the statute in Hall v. Gird (1844) 7 Hill, 586, and says: "While the intent of the attorney making a purchase is a proper subject for inquiry and determination by a jury, yet that subject ought to be submitted to the jury for a special finding of fact, and on the coming in of their verdict, the court can then determine whether the plaintiff should have a recovery or the complaint be dismissed. In this case that procedure was not followed, and as a result the defendant in this action appears to have a judgment on the merits, which would make it appear that he has a good defense to the note, whereas, as a matter of fact, all that has been decided is that the plaintiff has no legal capacity to sue."

V.

B. B. B.

care in selecting substitute.

2. A physician who, upon notifying one who has employed him to attend a case, that he will be unable to do so, is requested to send a substitute, is bound to exercise ordinary care in the selection of the substitute.

[See 21 R. C. L. 390.]

- independent contractor.

3. A physician who is sent as a substitute by another physician who has been employed to attend a case is an independent contractor in performing the service.

[See 21 R. C. L. 390.] -partnership case.

4. Where the custom is for physicians unable to care for all their cases

Plaintiff's right of recovery was limited to the legal responsibility of defendant for the acts of the substitute physician, based on the relationship existing between them as charged in the pleadings of plaintiff, and there could have been no recovery on account of the existence of any other relationship between said parties, not charged therein.

Texas C. R. Co. v. Zumwalt, 103 Tex. 603, 30 L.R.A. (N.S.) 1206, 132 S. W. 113; Galveston, H. & S. A. R. Co. v. Scott, 18 Tex. Civ. App. 321, 44 S. W. 589; Southern P. Co. v. Mauldin, 19 Tex. Civ. App. 166, 46 S. W. 650; Shearm. & Redf. Neg. 6th ed. § 1a, 9 & 9b; Thomp. Neg. § 6724; Myers v. Holborn, 58 N. J. L. 193, 30 L.R.A. 345, 55 Am. St. Rep. 606, 33 Atl. 389; Hitchcock v. Burgett, 38 Mich. 501; Brown v. Bennett, 157 Mich. 654, 122 N. W. 305; De Forrest v. Wright, 2 Mich. 368; Keller v. Lewis, 65 Ark. 578, 47 S. W. 755; Youngstown Park & Falls Street R. Co. v. Kessler, 84 Ohio St. 74, 36 L.R.A.(N.S.) 50, 95 N. E. 509, Ann. Cas. 1912B, 933; Laubheim v. De Koninglyke Nederlandsche S. B.

Maatschappy Co. 107 N. Y. 228, 1 Am. St. Rep. 815, 13 N. E. 781; Ballard v. Chesapeake & O. R. Co. 144 Ky. 476, 139 S. W. 771, 2 N. C. C. A. 378; 30 Cyc. 1581; 22 Am. & Eng. Enc. Law, 805; Laugher v. Pointer, 5 Barn. & C. 547, 108 Eng. Reprint, 204, 4 L. J. K. B. 309, 8 Dowl. & R. 550; Milligan v. Wedge, 4 Perry & D. 714, 12 Ad. & El. 737, 113 Eng. Reprint, 993, 10 L. J. Q. B. N. S. 19.

It was immaterial whether, in selecting the substitute physician, defendant should be held to the exercise of ordinary care in seeing to it that the substitute possessed that degree of skill and ability usually possessed by physicians of good standing, or whether he should be held an insurer thereof.

Texas & N. O. R. Co. v. Berry, 67 Tex. 238, 5 S. W. 817; Missouri, K. & T. R. Co. v. Day, 104 Tex. 237, 34 L.R.A. (N.S.) 111, 136 S. W. 435.

Mr. L. R. Callaway for defendant in

error.

Greenwood, J., delivered the opinion of the court:

This suit was brought by defendant in error, S. E. Lee, to recover