
    
      Bailey A. Barton vs. Elizabeth Sutherland.
    
    Assumpsit on a promissory note, payable to A. F. or beaver, and transferred after due to plaintiff: plea the general issue: the note was given for medical services rendered by A. F. and the defence was that A. F. was not a licensed physician : neither the plaintiff nor A. F. had notice of the nature of the defence before the trial: Held, that the amis should have been thrown on defendant to show that A. F. had no license.
    
      Before Frost, J. at Pickens, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows.
    
      “ This action was brought on a note of the defendant for one hundred dollars, payable, one day'-aft|r dafi^to A. M. Folger or bearer, with interest after si^'pícinthsTroi^ de|e. The consideration of the note was the a^cppnt of; Forger %>r medical servi ces, rendered to the defendant. ip'Thekfpte vfas tjiinsferred to the plaintiff after it was due. £1 3
    “ The defence was, that th“b :npje w^s iliig^i and void under the Act of 1817, Folger not hav^i^. a.¿L^lpnífforlicense to practice medicine.
    “A subpoena, requiring Folger to produce his diploma or license, had been left at his residence the day before the-trial.
    “For the defendant it was contended, without any formal notice for a nonsuit, that the plaintiff could not recover, unless he produced the diploma or license of A. M. Folger. On the authority of the case of Wéstmoreland vs. Bragg, (2 Hill, 414,) I was inclined to think the plaintiff could not recover. It being averred by the plaintiff’s attorneys, that Folger had prac-tised for many years 'as a physician in this State, and that such practice' was sufficient evidence of his having a license or diploma, the plaintiff was allowed to produce evidence to that point. Three witnesses had known him as a physician in large practice since 1841, in the districts of Spartanburgh and Pickens ; but two of them testified that it was reported that he had no diploma or license.
    “ On this evidence the plaintiff was nonsuited.”
    
      The plaintiff appealed. and now moved that'the non-suit be set aside, on the following grounds.
    1. Because his Honor erred in holding that it was the duty of the plaintiff, who was the assignee of the note sued on, to produce the diploma, or prove that Dr. Folger was a licensed physician, when it was shown that the note was given for a medical account.
    
      2. Because it was incumbent on the part of the defendant to prove that Dr. Folger was not a licensed physician before the plaintiff would be nonsuited on the note given by the defendant.
    3. Because there was no proof which warranted the conclusion that Dr. Folger was not a licensed physician, and the testimony as to the report in circulation was not competent, and should not have been received; and being received could not outweigh the evidence that he had been a practicing physician for the last ten or twelve years, with an extensive practice.
    4. Because it was the duty of the defendant to give Dr. Fol-ger notice to produce his diploma, and the plaintiff should not have been nonsuited without such notice had been duly served.
    5. Because the nonsuit was founded on the failure of the plaintiff to disprove an assertion of counsel for defendant, when it should have been ordered on the proof the defendant made in the case.
    
    
      Perry, for the motion.
    
      Young, contra,
    cited 6 Stat. 63, 597.
   Curia, per Waedlaw, J.

The action was assumpsit: the only plea, the general issue. Of the nature of the defence, it does not appear that either the plaintiff or Folger had notice before the trial; for even the attempt made by the defendant to serve a subpoena duces tecum upon Folger, was not, so far as we can perceive, effectual.

Under these circumstances, the plaintiff could not have been, expected to produce Folger’s license, and the defendant should have been required to make out his defence, by adding to proof that medical services constituted the consideration of the note, legal evidence, by Folger's admissions or otherwise, that the practitioner who rendered the services was unlicensed.

The mol ion to set aside the nonsuit is granted.

Q’Neall, Evans, Withers and Whitner, JJ. concurred.

Motion granted.  