Sheldon v. Clark — 1 Johns. 513

Majority

p. 513

Sheldon against Clark, senior.

Headnote

In an action against a person for practising physic again st the act, it is incumbent on the defendant to show himself within some of the provisos, and the plaintiff is not bound to negative the provisos in his declaration.

ON return to the certiorari, in this cause, it appeared, that an action of debt had been brought by the defendant in error, against the plaintiff in error, before the justice, to recover the penalty of 35 dollars, for practising and administering medicine, contrary to the act,^[1] and without obtaining the certificate, or making such proof as is required by the 1st section of the act. The defendant requested an adjournment, that he might procure two witnesses from the state of Vermont, to prove that he practised physic for more than two years before the 1st March, 1797, which was objected to, unless the defendant made the oath, and gave the security required by the 18th section of the act.^[2] The justice proceeded to try the cause. It was proved that the defendant had administered medicine within six months before. The justice gave judgment for the penalty, in favour of the plaintiff, who prosecuted as well for himself, as for the people of the county of Cayuga.

W. Woods, for the plaintiffin error.

1. The declaration is defective in not stating any time or place, and it does not negative any of the provisos in the act.^[3] 2. The justice proceeded to the trial of the cause, without granting the adjournment requested by the defendant, 3. The evidence docs not show any offence committed within the state, or that it was within the jurisdiction of the court. 4. The justice docs not adjudge that the defendant has been guilty of any offence, nor does he order one half of the penalty to be paid to the people of the county of Cayuga.

Gold, contra.

1. The authorities cited, relate only to summary convictions where a greater strictness is observed. 2. The evidence wanted was immaterial, and was to be obtained from Vermont, and was no good reason for the adjournment of the cause. 3. On the return, it appears that. the town of Dry den is stated to be in the county óf Cayuga, and when Dry den is referred to, it must be intended to be in that county. 4. The act is merely directory as it regards

p. 514

the paying over the penalty, and it was not necessary that it should be so ordered in the judgment. It was not requisite for the plaintiff to negative any of the provisos. The defendant, by resting his defence on a practice for two years, negatived every other ground of defence.

The averment, that the defendant practised physic contrary to the statute, was sufficient; and it was incumbent on the defendant, by his plea, to have brought himself within some of the provisos of the act. As he has not done so, either by pleading or evidence, we are of opinion that the judgment ought to be affirmed.

Judgment affirmed.