27 Ala. 267 | Ala. | 1855
If the note sued on rested on a valid consideration at the time it was given, it would impose an obligation on the maker, tbe force of which it would be beyond the power of the legislature to impair; but the act of 1823 not only prohibits the practice of physic or surgery by unlicensed physicians, but expressly provides that all bonds, notes, promises, and assumpsits, made to any person not licensed iii the .manner thereinafter specified, the consideration of which shall be for services rendered as a physician or surgeon prescribing for the cure of diseases, shall be utterly void. — Clay’s Dig. 481, §§ 1, 2. Subsequent acts conferred the right on any physician, who had graduated at any regular medical university, to enrol his name with any of the medical boards of the State on the production of his diploma. — Clay’s Dig. 488, § 9. By force of these statutes, medical services rendered by a physician who had not been licensed, or whose name had not been enrolled in a medical board of this State, formed no valid consideration for a contract of any kind ; and as a necessary consequence, a note based upon such services would not be recoverable. The act of 1832 (Clay’s Digest, 488, § 10) repealed the sections of the act of 1823 to which we have referred, as to physicians practicing on the botanic system ; but our understanding of the last act is, that it applied to those who confined their practice to that system only. Indeed, the proviso shows conclusively that such was the intention of the legislature, as any botanic physician who administers calomel and certain other medicines in use with the regular faculty, is expressly subjected to all the penalties of the former acts.
The effect of those statutes, taken together, was to prohibit all persons from practicing as physicians, unless they were licensed by a medical board in this State, or their names were enrolled according to the provisions of the statute to which we have referred, or unless they practiced 'on the botanic system alone; and the necessary result of this prohibition would be, to prevent a recovery in all actions founded on contracts for medical services, unless it was proved that the persons rendering such service were not within the prohibition. The repeal of the law by the adoption of the Code did not give validity to the contract, if it was void under the old
But although we must look to the law in force at the time the note was given, to determine its validity and effect, in relation to the evidence which governs a suit upon it a different rule obtains. If the suit was commenced since the adoption of the Code, the rules of evidence which it prescribes must govern in all civil causes ; and although, under section 978, the plaintiff is not required to prove a license, except upon two days notice by the opposite party that such proof will be required, yet, if such notice is given, it devolves upon him, whenever it is established that the contract sued upon was for medical services, to show that he is outside of the prohibition; and this he can do by proving his license, or that he was enrolled in the medical board, or that he practiced on the Thompsonian, system only.
Applying these rules to the charges requested on the part of the plaintiff below, there was no error in their refusal.
The charge, however, which asserted that the note was not recoverable if given for medicines furnished or sold by the intestate, cannot be supported. It is true that section 980 of the Code operates as a prohibition upon the sale of drugs unless a license is obtained ; but no such law was in force at the time the note was given, and if the consideration was then valid, it could not, as we have said, be affected by any subsequent statute.
We think, also, that the court laid down the law too broadly, when it instructed the jury that, in civil causes, they were bound to find according to the preponderance of the testimony. Whatever facts are necessary to be established— whether by the plaintiff, to give him a right to recover, or by the defendant, to sustain his defence — must be proved ; and although, from the nature of things, it is impossible to say what degree or quantity of evidence amounts to proof, as it must necessarily depend upon the effect It has upon the mind (1 Greenleaf on Evidence, § 2), yet it will scarcely be denied that it would be unjust to charge a defendant with a heavy debt, when the preponderance of the evidence merely inclined the mind of the jury to the side of the plaintiff; or to mulct a man in heavy damages, when the
For the errors we have noticed, the judgment must be reversed, and the cause remanded.
