INDIAN JUDICIAL APPROACH TOWARDS COMPENSATION FOR MEDICAL NEGLIGENCE-A LEGAL ANALYSIS

 

-DR. K. LATHA[1]

 PRINCIPAL (FAC),

GOVERNMENT LAW COLLEGE,

 TIRUNELVELI.

 

 

 

ABSTRACT

When a patient visits a physician, he or she expects the doctor to use all of their knowledge and expertise to address their condition. The connection takes the form of a contract that keeps the fundamental components of tort law. A doctor has obligations to his patients, and if any of these are broken, the patient may sue the doctor for negligence. Prior to conducting diagnostic procedures or initiating therapeutic therapy, the physician is required to acquire the patient's informed permission. Patients who have complaints about their treatment can take them to the Consumer Courts, and the Consumer Protection Act of 2019, covers the services provided by the doctors. Case laws are a valuable source of legal precedent for resolving the The Indian Judiciary awards compensation for medical negligence in India based on different yardsticks. The liability should be fixed uniform and the quantum of compensation must be provided in a fair manner. This study analyses the approach of the Indian Judiciary in awarding compensation for medical negligence.

 

 

 

 

 

 

 

 

INTRODUCTION

In India, compensation for medical negligence is determined by the judicial system. The Indian judiciary has taken a proactive approach towards compensating victims of medical negligence and has evolved its approach over the years to address the unique challenges posed by these cases. The Indian judiciary recognizes the right of patients to receive compensation for harm or injury suffered due to the negligence of healthcare providers. When the doctors performed their duties towards the patient negligently in the government hospitals, the servants of the state violated the fundamental right of the patient, guaranteed under Art. 21 of the Indian Constitution. The legal framework for medical negligence in India is based on the principles of tort law, which holds that an individual who has suffered harm or injury due to the actions or omissions of another party is entitled to compensation.

Over the years, the Indian judiciary has refined its approach to compensation for medical negligence. Initially, compensation was primarily awarded for economic losses, such as medical expenses and loss of income. However, in recent years, the judiciary has expanded its approach to include non-economic losses, such as pain and suffering, loss of enjoyment of life, and emotional distress. One notable case that set a precedent for compensation for medical negligence in India is the case of Kusum Sharma vs. Batra Hospital and Medical Research Centre[2]. In this case, the Supreme Court of India held that patients have the right to receive compensation for harm or injury suffered due to the negligence of healthcare providers, and that compensation should include both economic and non-economic losses.

In addition to compensation for harm or injury suffered due to medical negligence, the Indian judiciary has also awarded punitive damages in cases of gross negligence or willful misconduct. Punitive damages are intended to punish the healthcare provider for their actions and to deter similar behavior in the future.

 

PROOF OF INJURY AND AWARD OF COMPENSATION

Proof of injury and award of compensation are two crucial components in establishing a claim for compensation in cases of medical negligence and consumer protection. Proof of injury refers to the evidence that the patient or consumer suffered an injury or harm as a result of the healthcare provider's negligence or the service provider's deficient service or defective product. This evidence can include medical records, photographs, witness statements, and expert opinions. To receive compensation, the claimant needs to prove that the injury or harm suffered has resulted in damages such as medical expenses, lost income, pain and suffering, or a reduced quality of life. The amount of compensation awarded will depend on the severity of the injury or harm suffered.

In medical negligence cases, compensation may also be awarded for future medical expenses, loss of future income or earning capacity, and future pain and suffering. Establishing proof of injury and receiving an award of compensation are crucial components in receiving justice and redressal for the harm suffered by the patient or consumer. It is essential to gather and present all relevant evidence and seek expert legal advice to maximize the chances of receiving adequate compensation. In addition to the factors mentioned earlier, the court may also consider the circumstances surrounding the injury or harm suffered. For example, if the healthcare provider or service provider acted recklessly or intentionally, the court may award punitive damages in addition to compensatory damages. Punitive damages are intended to punish the defendant for their actions and to deter similar behavior in the future.

In some cases, the claimant may also be required to prove that they took reasonable steps to mitigate their damages. For example, in a medical negligence case, the claimant may be required to show that they followed the prescribed treatment plan and took all necessary steps to minimize the impact of the injury or harm suffered.

It is important to note that the process of proving injury and receiving compensation can be complex and time-consuming. It is crucial to seek the advice and guidance of an experienced attorney who specializes in medical negligence and consumer protection cases. A skilled attorney can help gather and present the necessary evidence, negotiate with the defendant or their insurance company, and ensure that the claimant receives the compensation they deserve. In some jurisdictions, there may be a limit on the amount of compensation that can be awarded for certain types of damages, such as pain and suffering or loss of enjoyment of life. This is known as a "cap" on damages, and it varies from state to state or country to country.

The process of proving injury and receiving compensation can also involve the use of expert witnesses. Expert witnesses are professionals who have specialized knowledge or experience in a particular field, such as medicine or engineering. They can provide testimony to help establish the cause of the injury or harm suffered and the extent of damages incurred. In cases of medical negligence, it is important to establish that the healthcare provider breached their duty of care by failing to provide a reasonable standard of care. This can be challenging as healthcare providers are held to a high standard, and it can be difficult to prove that they did not meet this standard. It is crucial to gather all relevant medical records, consult with other healthcare providers, and seek the advice of medical experts to build a strong case.

In consumer protection cases, the claimant may need to prove that the service provider or manufacturer was aware of the defect or deficiency and failed to take adequate measures to rectify the issue. This can involve gathering documentation, conducting investigations, and seeking the advice of industry experts. Hence, the process of proving injury and receiving compensation in cases of medical negligence and consumer protection can be complex and challenging. It is crucial to seek the advice and guidance of experienced attorneys and experts to maximize the chances of receiving adequate compensation.

 

DOCTRINE OF RES IPSA LOQUITUR

The doctrine of Res Ipsa Loquitur is a Latin phrase that means "the thing speaks for itself". It is a legal principle that applies in cases where the plaintiff lacks direct evidence of negligence but can prove that the injury would not have occurred without negligence. In medical negligence cases, the doctrine of Res Ipsa Loquitur can be used to establish a prima facie case of negligence against the healthcare provider. To establish a case under the doctrine of Res Ipsa Loquitur, the plaintiff must prove the following elements.  The injury would not have occurred in the absence of negligence, the plaintiff must show that the injury is of the type that would not normally occur in the absence of negligence. The defendant had exclusive control over the instrumentality or condition that caused the injury, the plaintiff must prove that the defendant had control over the object or the situation that caused the injury. The injury was not caused by any action of the plaintiff; the plaintiff must prove that they did not contribute to the injury in any way. If these three elements are satisfied, then the court may presume negligence on the part of the defendant and shift the burden of proof to the defendant to prove that they were not negligent. The doctrine of Res Ipsa Loquitur has been applied in a variety of medical negligence cases. For example, it has been used in cases where surgical instruments were left inside a patient's body after surgery, in cases where a foreign object was found in food or medication, in cases of anesthesia overdose, and in cases where a patient suffered injury due to a slip or fall while in the hospital.

It is important to note that the doctrine of Res Ipsa Loquitur is not a conclusive proof of negligence. It is merely a presumption that shifts the burden of proof to the defendant. The defendant can still present evidence to refute the plaintiff's claim of negligence .The doctrine of Res Ipsa Loquitur can be a powerful tool for plaintiffs in medical negligence cases. It allows them to establish a prima facie case of negligence against the healthcare provider, even in the absence of direct evidence of negligence. However, it should be noted that the doctrine is not a conclusive proof of negligence, and the defendant can still present evidence to refute the plaintiff's claim.                                                                                                                          

The doctrine of Res Ipsa Loquitur is not always applicable in medical negligence cases, and its application may vary depending on the jurisdiction. In some jurisdictions, the doctrine is limited to cases where the injury is of a type that would not normally occur without negligence. In other jurisdictions, the doctrine may be applied more broadly to cases where the injury is merely consistent with negligence. Also, the application of the doctrine of Res Ipsa Loquitur in medical negligence cases has been the subject of much debate and controversy. Some critics argue that the doctrine is outdated and should be abolished, while others argue that it is a necessary tool for plaintiffs to prove negligence in cases where direct evidence of negligence is lacking.

In addition to the doctrine of Res Ipsa Loquitur, there are other legal principles and doctrines that are relevant to medical negligence cases, such as the standard of care, informed consent, and causation. The standard of care refers to the level of care that a healthcare provider is expected to provide to their patients, while informed consent refers to the requirement that healthcare providers obtain the patient's informed consent before performing medical procedures or treatments.

Causation refers to the requirement that the plaintiff must prove that the defendant's negligence was the direct cause of their injury. In medical negligence cases, causation can be particularly challenging to prove, as the plaintiff must show that the defendant's negligence caused their injury and that the injury would not have occurred in the absence of negligence.

One landmark Indian case that dealt with the proof of injury and award of compensation in cases of medical negligence is the case of Malay Kumar Ganguly vs Dr. Sukumar Mukherjee &b Ors.[3] In this case, the Supreme Court of India established the principle of "res ipsa loquitur" in cases of medical negligence, which means "the thing speaks for itself."

The case involved the death of Anuradha Saha, who had been admitted to a hospital in Kolkata for the treatment of a skin condition. She developed a severe allergic reaction to a drug prescribed by the doctors and subsequently died. Anuradha's husband. Malay Kumar Ganguly, filed a case of medical negligence against the doctors and the hospital, alleging that they had breached their duty of care and were responsible for her death.

The Supreme Court of India held that the principle of "res ipsa loquitur" could be applied in cases of medical negligence. This principle states that if an event occurs that would not have occurred in the absence of negligence and the event is under the control of the defendant, and the plaintiff has not contributed to the event, then the defendant is presumed to be negligent.

The court also held that in cases of medical negligence, the burden of proof is on the plaintiff to establish that the doctor or hospital breached their duty of care and caused the injury or harm suffered. This can be established through expert medical evidence, documentation, and other relevant information. The court awarded compensation of Rs. 1.7 crore to Malay Kumar Ganguly, noting that Anuradha's death was a direct result of the negligence of the doctors and the hospital. The compensation included both economic and non-economic losses, such as medical expenses, loss of income, and pain and suffering.

 

VICARIOUS LIABILITY

Vicarious liability is a legal doctrine that holds one party responsible for the actions of another party, even though the first party did not directly cause the harm. In the context of medical negligence, vicarious liability may apply to hospitals or other healthcare institutions that employ healthcare providers who commit acts of negligence.

There are several reasons why vicarious liability may be applied in medical negligence cases. First, healthcare providers are often seen as agents of the hospital or healthcare institution where they work, and are therefore subject to the control and supervision of the institution. This means that the institution has a duty to ensure that its healthcare providers are competent and provide adequate care to patients. Second, hospitals and healthcare institutions often have greater resources than individual healthcare providers, making them better able to bear the costs of compensating injured patients. By holding institutions vicariously liable for the actions of their employees, injured patients may be more likely to receive compensation for their injuries.

            Indian Medical Association V. V.P. Shantha[4] it is one important case law that dealt with vicarious liability in the field of medical negligence and consumer protection act in India. In this case, the Supreme Court of India had to decide whether a hospital can be held vicariously liable for the negligence of a doctor who was an independent contractor. The case arose when a patient, V.P. Shantha, underwent a sterilization procedure at a private hospital in Bangalore and subsequently suffered complications that left her disabled. She sued the hospital and the doctor who performed the procedure for medical negligence.

The hospital argued that it should not be held liable for the negligence of the doctor, as he was an independent contractor and not an employee of the hospital. The Supreme Court rejected this argument and held that the hospital was vicariously liable for the negligence of the doctor. The court reasoned that the hospital held itself out as a provider of medical services and had a duty to ensure that the doctors it engaged to provide those services were competent and qualified. The hospital also had control over the doctor's work and the facilities where the procedure was performed. As such, the court held that the hospital had a non-delegable duty to ensure that the procedure was performed with due care and skill.

The court also noted that the hospital had a commercial interest in providing medical services and that patients rely on the reputation and resources of the hospital when seeking medical treatment. Therefore, the court held that the hospital could not avoid liability for the negligence of the doctor on the grounds that he was an independent contractor.

The case of Indian Medical Association v. V.P. Shantha[5] established the principle of vicarious liability for hospitals in India, even when the doctor is an independent contractor. The case has significant implications for consumer protection in India, as it ensures that patients can hold hospitals accountable for the actions of their staff and contractors. The case was first heard by the Karnataka State Consumer Disputes Redressal Commission, which held the hospital and the doctor liable for medical negligence and awarded compensation to the patient. The hospital appealed the decision to the National Consumer Disputes Redressal Commission, which upheld the decision of the lower court.

The hospital then appealed to the Supreme Court of India, arguing that it could not be held liable for the negligence of the doctor, who was an independent contractor and not an employee of the hospital. The hospital also argued that it had no control over the doctor's work and that the doctor was solely responsible for any negligence.

The Supreme Court rejected these arguments and held that the hospital was vicariously liable for the negligence of the doctor. The court noted that the hospital had a duty to ensure that the doctor was competent and qualified and that the procedure was performed with due care and skill. The court also held that the hospital had control over the facilities where the procedure was performed and that it had a commercial interest in providing medical services.

The court emphasized the importance of consumer protection in cases of medical negligence and held that patients have a right to expect a certain standard of care from hospitals and their staff. The court also noted that the hospital could seek indemnity from the doctor for any damages awarded to the patient. The decision in this case had a significant impact on the medical profession in India. The case established the principle of vicarious liability for hospitals and emphasized the importance of ensuring that medical procedures are performed with due care and skill. The case also highlighted the need for consumer protection in cases of medical negligence, ensuring that patients have a legal recourse in the event of negligence.

In Dr. Laxman Balkrishna Joshi v. Dr. TrimbakBapu Godbole[6] is a landmark case in the field of medical negligence law in India. The case was decided by the Supreme Court in 1969 and established important legal principles for determining liability in cases of medical negligence.  Dr. Laxman Balkrishna Joshi was a patient who underwent surgery for removal of a small swelling in his right leg. During the course of the surgery, the femoral artery in his leg was damaged, resulting in gangrene and the need for an above-the-knee amputation. Dr. Joshi sued Dr. TrimbakBapu Godbole, the surgeon who had performed the surgery, for medical negligence.

The court held that a doctor owes a duty of care to his or her patients, and that breach of this duty can result in liability for damages caused. In order to establish negligence, the plaintiff must show that the doctor breached this duty by failing to provide the standard of care expected of a reasonable medical practitioner, and that this breach caused the injury.

The court also held that the standard of care expected of a doctor varies depending on the circumstances of the case. In medical negligence cases, the standard of care is determined by considering what a reasonable medical practitioner would have done in similar circumstances. The court stated that a doctor is not liable for every error in judgment or for every mishap during a surgery, but only if the error is so gross as to indicate a lack of proper care and skill.

In this case, the court held that Dr. Godbole had breached the duty of care owed to Dr. Joshi by damaging the femoral artery during surgery. The court found that this breach was the direct cause of the amputation and subsequent disability suffered by Dr. Joshi. The court therefore awarded Dr. Joshi a sum of Rs. 20,000 as compensation for his injuries.

This case is significant because it established the principle of vicarious liability in medical negligence cases. The court held that an employer can be held liable for the negligent acts of its employees if the employee was acting within the scope of their employment at the time of the negligence.In this case, the hospital where Dr. Godbole worked was also held liable for his negligence, as he was acting within the scope of his employment as a surgeon when he caused the injury to Dr. Joshi. This established an important legal precedent in Indian law, making it easier for patients to hold hospitals and other medical institutions accountable for the negligent acts of their employees.

 

COMPARATIVE NEGLIGENCE

Comparative negligence is a legal principle that is used to allocate fault and damages in personal injury cases where more than one party has contributed to the harm. It is based on the idea that each party is responsible for their share of the harm that was caused, and the amount of compensation that each party is entitled to receive should be reduced in proportion to their level of fault. Comparative negligence is important in cases of medical malpractice, as patients may be partially responsible for their own injuries if they fail to follow medical advice or engage in behaviors that contribute to their condition.

Comparative negligence is an important legal principle in cases of medical malpractice, as patients may be partially responsible for their own injuries if they fail to follow medical advice or engage in behaviors that contribute to their condition. For example, if a patient is instructed to take medication for a certain condition but fails to do so, and their condition worsens as a result, the patient may be found to be partially at fault for their own injuries.

One important case law on comparative negligence in India is the case of               Poonam Verma v. Ashwin Patel[7]. In this case, the Supreme Court of India held that comparative negligence can be applied in cases of medical malpractice, and that patients may be found partially responsible for their own injuries if they fail to follow medical advice or engage in behaviors that contribute to their condition. In the Poonam Verma case, the plaintiff underwent a sterilization procedure performed by the defendant doctor. After the procedure, the plaintiff developed an infection and had to undergo further surgeries to treat the infection. The plaintiff claimed that the defendant doctor was negligent in performing the sterilization procedure, and sought damages for her injuries.

The court found that the defendant doctor was negligent in performing the sterilization procedure, but also found that the plaintiff was partially responsible for her own injuries because she failed to take adequate post-operative care and did not follow the doctor's instructions. The court apportioned fault between the parties, and reduced the plaintiff's damages by 50% to reflect her share of the fault.

Comparative negligence is an important legal principle in cases of medical malpractice, as it recognizes that patients may be partially responsible for their own injuries if they fail to follow medical advice or engage in behaviors that contribute to their condition. The principle helps to ensure that damages are fairly allocated between the parties and that patients receive compensation that is commensurate with their level of fault.

 

GROSS NEGLIGENCE

Gross negligence is a higher degree of negligence than ordinary negligence and involves a greater degree of carelessness or recklessness. In the context of medical negligence, gross negligence refers to the failure of a medical professional to provide care that is expected of them, which leads to severe harm or injury to the patient. It involves a wilful disregard for the safety and well-being of the patient. Gross negligence may involve a lack of skill, knowledge, or diligence on the part of the medical professional or the failure to follow standard procedures. It may also involve intentional misconduct, such as performing a medical procedure without the patient's consent or administering a treatment that is known to be harmful.

In India, gross negligence is a criminal offense and can result in criminal prosecution of the medical professional. The Indian Penal Code defines criminal negligence as a wanton or reckless act that endangers the life or safety of another person. The punishment for gross negligence can range from a fine to imprisonment depending on the severity of the harm caused. In medical negligence cases involving gross negligence, the compensation awarded to the victim or their family is typically higher than in cases of ordinary negligence, as the degree of recklessness or wilful disregard for the patient's safety is much higher. The compensation awarded must be just, fair, and reasonable, and must reflect the severity of the harm caused to the patient and their family.

Gross Negligence is a serious offense in the context of medical negligence and can lead to severe harm or injury to the patient. It is essential for medical professionals to provide care that meets the expected standard of care and to ensure the safety and well-being of their patients.

In Dr. Suresh Gupta v. Government of NCT of Delhi[8] is a landmark case in medical negligence law in India. The case was heard by the Supreme Court of India and the judgment was delivered on October 13, 2004.The case involved a pregnant woman named Manju Devi who died due to gross negligence on the part of the doctors at a government hospital in Delhi. Manju Devi was admitted to the hospital in an advanced stage of pregnancy. She was in labor and needed an emergency cesarean section. The doctors performed the surgery but did not take adequate care. The woman suffered from severe bleeding after the surgery and ultimately died due to medical complications.

The family of Manju Devi filed a complaint of medical negligence against the doctors and the hospital. The case went through various stages of litigation, and finally, the Supreme Court of India delivered its judgment in 2004.The court held that the doctors were guilty of gross medical negligence. The court observed that the doctors did not take adequate care during the surgery and did not even bother to check the patient's condition after the operation. The court also noted that the doctors did not take any action to control the bleeding, which ultimately led to the death of the patient.

The court emphasized that doctors have a duty to provide proper medical care to their patients, and failure to do so can have serious consequences. The court also noted that in cases of gross negligence, the doctors cannot claim the defense of error of judgment or a bona fide mistake. With regards to the quantum of compensation, the court awarded a total of Rs. 25 lakhs to the family of the deceased. This included compensation for loss of dependency, loss of consortium, and mental agony.

The case of Dr. Suresh Gupta v. Government of NCT of Delhi is significant because it laid down the standard of care that doctors need to maintain while treating their patients. It also emphasized the importance of taking adequate care during medical procedures, and the consequences that can arise from gross negligence.

In Jacob Mathew v. State of Punjab &Anr.[9] is a landmark case in the field of medical negligence in India. The case is significant as it addressed the issue of the standard of care that a doctor should provide to a patient, and the circumstances in which a medical practitioner can be held liable for medical negligence.

The facts of the case is Jacob Mathew, a doctor, was driving his car and hit two young boys who were playing on the roadside, causing their deaths. The father of the children filed a complaint against Dr. Mathew, alleging that he was driving the car in a rash and negligent manner. Dr. Mathew was charged with the offence of causing death due to rash and negligent driving under Section 304A of the Indian Penal Code.

Dr. Mathew challenged the charge, arguing that the accident was not due to his negligence, but rather a case of unfortunate circumstances. The issue before the court was whether Dr. Mathew could be held liable for causing the deaths of the children due to his negligent driving.

The Supreme Court of India, in its judgement, examined the concept of medical negligence and the standard of care that a doctor should provide to a patient. The court observed that a doctor owes a duty of care to his patient and that he should exercise reasonable skill and care in the diagnosis and treatment of the patient. The court held that a doctor would be held liable for medical negligence if he deviates from the standard of care that is expected of a reasonably competent doctor in the same field.

The court also laid down the principle of ‘res ipsa loquitur',[10] which means that the thing speaks for itself. This principle is applicable in cases where the cause of the injury is not known or is shrouded in mystery. In such cases, the burden of proof is on the defendant to prove that he was not negligent.  The court in the Jacob Mathew case also discussed the concept of 'gross negligence', which is a higher degree of negligence than ordinary negligence. The court held that gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to the patient.

In the case, the court ultimately held that Dr. Mathew was guilty of gross negligence and that he had failed to exercise reasonable care while driving the car, resulting in the deaths of the children. The court also observed that a medical practitioner who is charged with gross negligence must be tried by a court of competent jurisdiction, and the court must take into account the degree of negligence and the harm caused to the patient while determining the quantum of compensation to be awarded.

The Jacob Mathew case has set a precedent in Indian medical negligence law and continues to be a crucial reference point in judicial proceedings related to medical malpractice.In addition to the legal implications, the case has also led to a larger discourse on the ethics of medical practice and the responsibilities of healthcare professionals towards their patients. It highlights the importance of informed consent, the need for doctors to act with due diligence, and the role of the medical community in self-regulation and quality control.

Moreover, the case also emphasizes the need for a robust legal framework to ensure that the rights of patients are protected and justice is served in cases of medical negligence. It underscores the role of the judiciary in interpreting and enforcing these laws to ensure that medical professionals are held accountable for their actions. 

The Jacob Mathew case has been a significant milestone in the development of medical negligence law in India. It has established the standard of care that a doctor should provide to a patient and has laid down the principles of res ipsa loquitur and gross negligence, which are crucial in determining the liability of a medical practitioner for medical negligence. It has also helped to raise awareness about the importance of patient rights and medical ethics

 

CONCLUSION

The doctors are life-savers and the medical profession is a noble one it is undeniable. However, instances of medical negligence and the lax attitudes of some healthcare professionals have resulted in irreparable harm to patients, including death, which could have been prevented with ordinary care. Death due to medical negligence is the serious violation of the right to health as a fundamental aspect of the right to life under Article 21. To protect the rights of the people government has enacted the Consumer Protection Act to provide compensation for the victims of medical negligence. It is recommended that a unified, comprehensive legislation be enacted for the adjudication of medical negligence. The CPA does not have a uniform approach, and there is no independent legislation specifically dealing with medical negligence. A unified legislation would ensure that all cases of medical negligence are dealt with in a consistent and fair manner, and would provide greater clarity and certainty to victims and their families.  The issue of medical negligence is a complex and multifaceted one that requires a comprehensive and coordinated response from all stakeholders. By adopting the recommendations outlined above, the Indian judiciary and the Government can reduce the medical negligence in India and also can provide adequate and fair compensation to the victims of medical negligence for betterment of their life.

 

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[1] Principal (FAC), Government Law College, Tirunelveli.

[2]. Civil Appeal No. 1385 of 2001

[3] Criminal Appeal 1191-1194 of 2005 Dated 23.10.2009

[4] AIR 1996 SC 550.

[5] AIR 1996 SC 550.

[6]. AIR 1969 SC 128,)

[7]  AIR 1996 SC 2111,

[8]Criminal Appeal No. 778of 2004, (2005) 6 SCC 422,

[9]APPEAL (crl.) 144-145 of 2004 dated 5.8.2005, (2005) 6 SCC 1

[10]Byrne v. Boadle, 159 Eng. Rep. 299 (1863)