Timmerman v. Morrison — 14 Johns. 369

Majority

p. 371

Timmerman against Morrison.

NEW-YORK,

October, 1817.

Headnote

Where a appears by attorney in a justice’s court, it the attorney is called on to produce his power, the of it must be proved. 4. declaration in assumpsit in a justice's be to, for uot stating anytime, or not averring a request. sSluo™ or°the Mcttora dof2th£ pose of ft$JtcttCons sur£err¡ i71 Mis s«s¡k =?• ®a- 223) taken in connection,» commencing™ ¡,itCefJ|%laii°be capable of suing for services or every person so subject to a penalty of dollars unless he proves that he practised gratuitously, or that he administered only roots, barb, or kerbs, ike growth or produce of ike United States. Iu rendering judgment for a plaintiff in a justice’s court, it is erroneous to include costs incurred by th e such as subpoenas for, and swearing his witnesses.

IN ERROR, on certiorari to a justice’s court.

The defendant in error brought an action, in the court below, against the plaintiff in error, and on the return of the summons one Wilbor appeared for the plaintiff below, the defendant in error; and, on his authority, for that purpose, being denied by the defendant below, Wilbor produced a paper purporting to be a power of attorney, with the name of the plaintiff subscribed. The defendant denied the execution of the power, but the over-ruled the objection, and admitted Wilbor to prosecute, as attorney for the plaintiff, without any proof of the execution of the power. The plaintiff’s attorney then presented a written declaration, containing the general counts for goods sold, money had and received) money paid, and services rendered, also for attending the defendant’s family in sickness, but .... « in xvithout stating any time, or averring a request on the part of the defendant. To this declaration the defendant demurred, spe5 1 cifying these omissions, as causes of demurrer, but the justice, xvithout xvaiting for any answer to the demurrer, decided that

p. 372

the declaration was sufficient. The defendant then pleaded the general issue and the plaintiff proved thaf he had attended the , defendant’s family as a physician, and had furnished medicines during their sickness. It was, however, proved, that the plaintiff was not a licensed physician, according to the statute; but he endeavoured to support the action, by attempting to show that he administered to the defendant’s family nothing but roots, bark cmd herbs, the growth or produce of the United States ; although on this point the proof was equivocal and extremely doubtful, the justice gave judgment for the plaintiff below, and the judgment for costs included several items of fees incurred by the defendant, such as subpoenas for, and swearing the defendant’s witnesses.

The justice erred. 1. In not requiring proof of the execution of the pretended power of attorney.

2. The demurrer to the declaration was well taken, and the defendant was entitled to judgment thereon.

3. The justice erred in his construction of the statute for regulating the practice of physic and surgery. (2 R. L. 219.) The 12th section of that act forbids any person to practise physic or surgery wdthout a diploma, and declares that, “ if any “ person shall so practice without a diploma, he shall forever “ thereafter be disqualified from collecting any debt incurred by “ such practice in any court in this state.” The 20th section superadds a penalty of 25 dollars for practising without a regular license, with a proviso, that no person shall be subject to such penalty, who practises without fee or reward: and with this further proviso, “ that nothing in this act contained shall be construed to extend to debar any person from using or applying, for the benefit of any sick person, any roots, bark or herbs, the growth or produce of the United States.” The true construction of all these sections and provisoes, taken together, is, that no person commencing to practise without license, after the date of the act, shall be capable of suing for services rendered, or medicines furnished as a physician or surgeon ; and that every person so practising without license, is subject to a penalty of 25 dollars, unless he proves that he practised gratuitously, or that he administered only roots, bark, or herbs, the growth or produce of the United States.

p. 373

4. The jostice erred in rendering judgment in favour of the pFiintiff, for the costs voluntarily incurred by the defendant in making his defence.

Judgment reversed,^[1]

(a) (a) Vide, Pinfield v. Carpender, 13 Johns. Rep. 350 . Bronson v. Mann, 13 Johns. Rep 460 .