There were two objections made at the trial, 1. To the admission in evidence of the writing, called a contract, signed by the defendant and other physicians of the town oí Salisbury. 2. To the charge of the judge to the jury.

1. The writing was admitted, as part of the proof, to show that the defendant had, by an arrangement with the other physicians, assumed the duty of inoculating the inhabitants of the town ; and that the defendant’s district embraced the plaintiff.

It was offered in connection with other proof by parol, that, this was the agreement of the defendant ; and that Rollin Sprague was his agent in performing this duty. The court has found, that the proof of the undertaking of the defendant to inoculate all those who should offer in his district, was satisfactory, without the writing.

The utmost that can be objected to this writing, is, that it was unnecessary. But surely, it would be worse than useless to send the cause again to trial on jsuch an objection. But be this as it may, the facts in the first count were submitted to the jury, in the charge of the judge. Suppose then, that there is a material variance between the writing set up in the two last counts, and the one offered in proof; if the proof is sufficient to support the first count without the writing, and that first count be sufficient, it all stands well; for the verdict may be applied to that count. In any view, then, the first objection cannot prevail.

2. But an objection is made to-the charge. The defendant prayed the court to charge the jury, that unless the plaintiff *224had proved the defendant guilty of great and gross negligence in vaccinating the plaintiff, she could not recover. The court told the jury, on this point, that if there was either carelessness, or a want of ordinary diligence, care and skill, then the plaintiff was entitled to recover. The principle laid down by the court below, is entirely correct. The doctrine in 3 Bla. Comm. 165. is, that any one, who undertakes any office, employment, duty or trust, contracts to perform it with integrity, diligence and skill; and if by the want of either of those qualities, any injury accrues to individuals, they have their remedy in damages, by special action on the case. This is the doctrine in Slater v. Baker, 2 Wils. 359. Seare v. Prentice, 8 East 353. and Sumner v. Utley, 7 Conn. Rep. 263. It is believed, that all the elementary treatises agree, substantially. The case was put to the jury as favourably for the defendant as the law would justify. If in the performance of the operation there was a want of ordinary diligence, care and skill; or if there was carelessness, then he was liable.

The motion for a new trial must be denied,.

New trial not to be granted.