24 Wend. 15 | N.Y. Sup. Ct. | 1840
By the Court,
A preliminary point taken by the counsel for the defendant in error is, that we have no right to notice any of the testimony entered on the record. By the 2 R. S. 306, 2d ed. § 48, the court ordering the reference may require the referees to report their decision [ *19 ] in admitting or rejecting any witness, in allowing or disallowing *a question to or answer by a witness, and all other proceedings by the referees, with the testimony before them, and their reasons for allowing or disallowing any claim of either party. The report in question was, in these respects, sufficient for the purposes of the court below ; and it warranted the judgment which they rendered, unless the report be exceptionable in some other respects.
In this case, it may be said that the court below must necessarily have held that the testimony showing that the plaintiff below had a license was sufficient. The answer is, that the facts going to make out the license are not stated as facts found, but only the evidence of them is given ; for instance, the exemplification is stated to have been produced, and certain oral and other proof received tending, as supposed, to make out a license. Again, the court may have determined that it was not necessary to prove a license. If it be said that certain parts of the evidence tending to show a license were objected to, but received by the referees, it is impossible to say what part was viewed as competent by the court, or whether they held that no proof was necessary beyond the fact that the plaintiff was retained and acted as the defendant’s physician. The referees left it for the court to decide whether a license was proved, if such proof were necessary. This left the question to the court below, thus : Was the evidence sufficient to show a license ? If not, was there evidence enough to conclude the defendant, with
Then, as to another point taken by the defendant, viz. that the credits entered by the plaintiff within the six years would not take the case out of the statute of limitations, the court decided nothing in terms. The referees submitted to them whether the statute attached or not, under the cir- [ *21 ] cumstances. The court decided simply that the plaintiff should Recover a certain sum. We may infer that they allowed the credit against the plaintiff, and held that these took the case out of the statute; but they might have proceeded on other grounds. Neither the dates nor other particulars as to the credits are set forth. Beside, I do not see that the point was made before the referees that these credits could not be allowed as taking the case out of the statute. Had it been raised, perhaps the objection might have called out farther proof.
It is enough, however, to say that a writ of error does not go to the referees, any more than to a jury ; it lies for error of the court below only, apparent on the record itself. To allow a writ of error at all from a decision on a report of referees, is an anomaly. It is no where expressly given by statute, nor is the method of making the report a part of the record prescribed by the statute. A special verdict was always a part of the record. A bill of exceptions was made so virtually by statute. It is only in analogy to a special verdict, or, if you please, under the equity of the rule which allows a special verdict, and the equity of the statute allowing a bill, that a report can be made any part of the record. If it do not, therefore, present neat points of law, appearing to have been expressly or necessarily decided by the court, the whole is impertinent, and must be disregarded. It is not on the record for the purposes of error, as was held in Denning v. Smith, 2 Wendell, 303, 306. If there be no point of law decided upon the report, the court below ought to disallow any entry on the record beyond what belongs to it by the common law. If there be a point of law, they must, in the name of the referees, find and enter facts, or rather conclusions of fact alone, raising the question of law, saying they have decided it expressly, or putting it in such a posture and relation upon the record, that the question plainly appears to be involved in the judgment rendered. The substance of all I have
*But if the evidence be all considered as stricken out, there is [ *22 J a defect in the record itself, which leaves it quite doubtful whether the judgment can be sustained. I allude to the form of the general report. This is an essential part of the record. The referees are required by 2 R. S. 305. 2d ed. § 43, to hear and determine the matter in controversy. By id. 306, § 48, they may be compelled to report thh amount they find due to either party; and by id. § 49, if the report be confirmed, judgment shall be entered thereon in the same manner and with like effect as upon the verdict of a jury. The general report must, therefore, by statute, and indeed in the nature of things, be entered like a general verdict; and thus it becomes examinable on error. How in the case at bar, the referees did not report any amount as definitely due to the plaintiff. They merely stated the evidence to the court below, subject to their opinion, in four different aspects. They say, if the court are of a certain opinion on the facts, then they find one sum; if of another opinion, then a different sum; if of a third opinion, still another sum ; and, if of a fourth opinion, they find for the defendant. And the court gave judgment for the plaintiff, after finding that one out of the four hypotheses proposed, was true. The report determines nothing except upon a contingency ; whereas the statute requires the referees generally to determine and report the amount due to either party. It mentions no condition; nor is there anything in the nature of the proceeding or the analogy of awards or verdicts, which would warrant the referees in thus throwing off the responsibility committed to them by the law. They might as well report the facts, and say they could not find one way or the other, and leave the whole open. Indeed they have here come little short of that. A jury may find a special verdict, and refer the law to the court; but they cannot make as many alternatives as they please. They find the facts; and say, if on these the court is for the plaintiff (in the language of the issue) then we find for him ; if otherwise, then for the defendant. But in no case can they state merely the evidence which *came before them, and demand [ *23 ] that the court should find the facts which go to make up the question of Jaw. The report is in nature of a verdict subject to the opinion of the court below on a case. But such can never be noticed as part of the record on a writ of error. An issue having been joined, it could be determined only by a verdict or report of referees. There being no verdict, and the report being defective in substance, probably no judgment could be rendered on an entry upon the record in the form before us. But I advert to the defect, merely because we do not wish to be considered as sanctioning.
So much for the mode in which the matter before us is presented. It is entirely clear that we cannot notice the point raised as to the statute of limitations. It is impossible to conjecture with any safety, or even probability, that it was raised. The only hint as to the credits given by the plaintiff, is in that part of the case where the defendant abandoned all claim t'o credit or set off, without saying one word of the purpose he had in view. His very object, perhaps, was, to obscure the bearing it might have at the hearing, and present it for the first time on error brought.
I think it also quite certain, on the principles stated, though the conclusion is not so direct, that the points decided by the referees on admitting or denying evidence adduced to prove the qualifications of the plaintiff below, are not sufficiently stated. But suppose I am mistaken, and it is our duty to examine their decisions, let us see to what they amount,
But if the plaintiff be put to the strictest proof, bow will he then stand ? He produced a regular license under the act of March 23d, 1797. 3 Greenl. 417, § 1. That act required him to produce satisfactory evidence to some judge of the common pleas of this state, or other officer mentioned, that he had practised physic, or surgery, or both, for the term of two years previous to October 1,1797, or satisfactory evidence that he had studied, &c. It also required him to obtain a certificate of such satisfactory evidence, from the officer, under his hand and seal, file it with the clerk of the county where he resided, and take a certified copy subscribed by the clerk ; otherwise he incurred a penalty of $25 for every act of professional practice. The license produced was perhaps not strictly formal; but no defect was specifically pointed out. It is said, however, *non constat that Si- [ *26 ] mon Veeder was a judge when he made the certificate of Septem
But this veteran practitioner having, as he believed, fought his way through the adverse legislation of nearly half a century, it is thought must at all events surrender a part of his claim under the new and point blank provision which found its way among the numerous alterations introduced into the revision of 1830. 1 R. S. 450, 2d ed. § 16. This section provides that no person shall practice physic or surgery unless he shall have received a license or diploma for that purpose from one of the incorporated medical societies in this state, or the degree of doctor of medicine, &e. ; or shall have been duly authorized, in a certain form, under the laws of some other state or country. The plaintiff below produced no license or diploma from any society. His certificates, it was objected, were neither of them technically such ; and if a license was necessary, he could only resort to the certificate of 1797. This latter was substantially according to the law of that day, and conferred a right which continued for life; unless divested by some disfranchising statute. The provision in the revised statutes is, general. It prohibits all persons practising, unless they have the license required. It is not in terms confined to persons taking licenses after 1806, when, for the first time, medical corporations could be formed ; nor does it expressly say it means not to touch those who were previously licensed. There are classes to whom it may be equitably applied, probably most persons now in practice, for the granting of corporate licenses or diplomas commenced so early as 1806 ; vide Sess.
But if it were necessary for the plaintiff below to renew his license, non constat that it was not done. Such a defect would reach but to the latter part of his practice in the defendant’s family. He had been retained long before 1830, and continued to practice generally after that time. The presumption is, therefore, that he had obtained the proper diploma under the revised statutes ; in other words, renewed his license, within the principle of Pearce v. Whale, before cited. I refer to the case and reasoning of the judges, as in point, that to resist a claim of this kind, for want of qualification, it lies with the defendant to prove clearly that the person whom he retained and who performed the services, has not renewed his license. There he proved it had not been renewed in the king’s bench. The court said he must go farther, and prove an omission to renew in the common pleas; for a renewal in either court entitled the plaintiff to practice. Vid. also 2 Phil. Ev. 72, 1st Am. from 7th Lond. ed. Also 1 Phill. Ev. ed. by Cowen & Hill, p. 227, and note, p. 298. No attempt was made in the case at bar to disprove the fact of the plaintiff having a license. The express statutory declarations running through the* various revisions, that any person practising without the proper authority, shall be disqualified to sue and collect any compensation for his services, do not vary the rule of evidence. They were but impositions of an additional penalty. None of the statutes declare on which side the onus lies. None of them profess to be statutes of evidence. We are left for that to the common law; and on looking into adjudications in many cases precisely analogous in principle, it will be found that the defence labored throughout under the difficulty of assuming that the plaintiff was bound, in the first instance, to prove his license affirmatively; whereas the law presumed that he had one, until the contrary was proved. The rule in such a case as this is more obvious and reasonable in its application, inas- [ *30 ] much as the defendant all along *admitted, by the very act of retaining the plantiff, that he was-a regular physician. There was no pretence that- he was employed as a mere Sangrado, like a steam or root doctor. Such, I admit, would have been prima fade evidence that he was not legally qualified. Vide Collins v. Carnegie, 1 Adolph. § Ellis, 695. Pickford v. Gutch, 8 T. R. 305, note. Moises v. Thornton, id. 303.
In any view which can be taken of the case, I think the judgment of the court below must be affirmed.
The other judges concurred in the result, without expressing any opinion on the question whether a physician can recover his fees without producing a license to practice.
Judgment affirmed.