
    John Hazlip et al. Administrator and Administratrix of Joseph Galtney, deceased, vs. Hachaliah H. Leggett.
    The plea, to an action to recover for services as physician, that the account had not accrued within three years, is bad. The limitation of three years does not apply to such a case.
    In an action against the maker of a note payable to a bank by the indorsee of the bank, since the statute of 1840 prohibiting assignments by banks, if the maker of the note desire to avail himself of that statute in his defence, he must do so by plea in abatement; he cannot do so under the general issue.
    In an action by a physician to recover fees due him, it is not necessary that all the items of his account should be strictly proved ; where, however, the proof of the various items is not clearly made out, the physician would strengthen his proof by showing that he kept correct books, and that the account was correctly copied from his books.
    L., a physician, sued the administrators of G. for medical services rendered, extending from 1836 to 1842, and proved by Dr. M. that he (L.) had attended in the family of G. as physician during his (M.’s) absence, who was G.’s regular physician ; that he knew nothing of the particular visits and prescriptions charged, but had seen L. two or three times at the house of G. ; that he had heard G. in his lifetime frequently say that in the absence of witness he had employed L. ; and he had two or three times been called in consultation with L. at G.’s house, over some of his sick family. Held, that the evidence was not sufficient to entitle L. to recover on the account.
    In error, from the Adams circuit court; Hon. C. C. Cage, judge.
    Hachaliah H. Leggett sued John Hazlip and Charlotte Galtney, administrator and administratrix of Joseph Galtney, in assumpsit, on a note made by their intestate for one hundred and eighty-four dollars, payable to Elizabeth Fuller, and by her indorsed to the plaintiff, which was credited by $100; also on a note made by Joseph and Robert Galtney, for four hundred dollars, dated November 26, 1839, payable twelve months after date, to the president, directors and company of the Agricultural Bank of Mississippi, or order, at their banking-house at Natchez, and which had been duly indorsed by the cashier, who had authority, by the name of A. P. Merrill, to the plaintiff; and also upon an open account for medical services rendered Galtney, his wife, children and servants during the years from 1836 to 1842, and which amounted in the aggregate to one hundred and forty dollars.
    The defendants plead, first, non assumpsit by their intestate; second, that the causes of action had not accrued within three years preceding the commencement of the suit.
    To this last plea a demurrer was filed and sustained. A jury was empanelled to try the issue, who found a verdict for the plaintiff for six hundred and seventeen dollars and seventy cents.
    At the trial the plaintiff proved by John W. Monette, that he knew the plaintiff had attended on the family of Galtney as physician in the absence of the witness, who was Galtney’s family physician ; he had seen the plaintiff at Galtney’s house two or three times, but he did not say at what time. He did not know anything about any of the charges made, nor of the plaintiff’s making any visits and prescriptions at the times as charged; he knew nothing of the items; that Galtney was a prompt paymaster, and always settled his accounts when called on; the witness had no account older than one year before the death of Galtney; that he had heard Galtney frequently say that he had employed the plaintiff as his physician when witness was absent; that Galtney’s family, white and black, numbered near one hundred persons, and they were often sick; that he had been called two or three times in consultation with the plaintiff at Galtney’s house ; that the prices charged for the services were according to the usual rates ; that Galtney and plaintiff were very intimate, and it was not unusual for men situated as they were to suffer accounts to run on uncollected for a long time.
    William Cannon, cashier of the bank, proved that the notice sued on, payable to the bank, was taken up out of the bank on the 11th day of May, 1841; but he did not know by whom the payment was made.
    A. P. Merrill, cashier of the same bank, proved that the note referred to had been transferred by the bank, about May, 1840, though the precise time he could not recollect, to Thomas Henderson, as trustee, who owned the note when it was paid, the bank holding it as agent for him ; the precise date of the deed of trust to Henderson he did not recollect; when the note was paid, its proceeds were passed to the credit of Henderson.
    On this proof the plaintiff asked the court to instruct the jury that possession of a promissory note was prima facie evidence of ownership ; when the date of an indorsement is uncertain, and not proved, the jury are warranted in presuming that it was done at the date of the note.
    “The jury are the judges, from all the circumstances of the-case, whether any and what part of an account is proved ; and it is not neeessary to prove any item by direct and positive testimony, but the same may be established by circumstances.”
    These instructions were given; and the court, at the instance of the defendants, further instructed the jury that if they believed from the evidence that the note of $400 was assigned by the bank after the 21st of February, 1840, when the law tvas passed prohibiting such assignments, they must find for the defendants.
    The court below refusing to grant a new trial, the defendants prosecute this writ of error.
    
      Dubuisson and Galtney, for plaintiffs in error.
    There is no law in this state giving to physicians and surgeons rights and privileges which do not equally belong to every other citizen; and physicians’ accounts are not more entitled to favor from the laws of the land than any other class of accounts, there being no distinction whatever made in their favor. The 91st sec. of the 43d chap, of How. & Hutch. Digest of the laws of Mississippi is general in its terms and provisions ; its language being; “ all actions of trespass quare clausum fregit, Sec., and all actions upon accounts and upon the case, except actions for slander, and except such actions as concern the trade or merchandise between merchant and merchant, &c., shall be commenced and sued within six years next after the cause of such actions shall have accrued, and not after.” By sec. 106, same chap, the period of time barring the said several actions enumerated in said 91st sec. except as therein excepted, is changed from six to three years. Tide sec. 106, 109 and 110.
    The court below erred in refusing to grant a new trial in this case, because the verdict of the jury was manifestly contrary to the authorities cited and the evidence adduced upon the trial thereof. Because the jury wrongfully found on all the accounts sued upon, due within six years next preceding the time of bringing the action, when none of the items contained in those accounts had been proved, and many of them were barred by the statute.
    The amount of the note for $400 was also wrongfully included in the verdict of the jury. The facts, presented and relied upon by defendants on the trial in the court below, bring this part of the case within the purview and meaning of the 7th sec. of an act of the legislature of the state of Mississippi, approved February 21st, 1840, which says, “It shall not be lawful for any bank in this state to transfer, by indorsement or otherwise, any note, bill receivable, or other evidence of debt; and if it shall appear in evidence, upon the trial of any action upon any such note, bill receivable, or other evidence of debt, that the same was so transferred, the same shall abate upon the plea of the defendant.” Both assignments or transfers of said note were proved to have been made after the passage and approval of the act of February, 1840. And whether we regard the assignment by the bank to Thomas Henderson, as trustee for the bank, or the transfer by the bank, as agent for Thomas Henderson, to plaintiff, it is in either case such an assignment as comes within the scope and meaning of the statute, and made in direct violation of its provisions. Payne v. Baldwin, 3 S. & M. 661.
    
      
      Montgomery and Boyd, for defendant in error.
    The first question in this case arises on the pleadings. The action is assumpsit on an account for medicines and services as 'physician, and on a promissory note, <fcc.
    The defendants to the counts on the account pleaded non assumpsit within three years, or actio non accrevit; and to this plaintiff demurred.
    All the laws on limitation of actions will be found in H. & H. 568-570. Sec. 9, which is the 4th sec. of the limitation act in the revised code, embraces this action, which may be termed an action on the case. This section was repealed 1827, (see sec. 106, H. & H. 573,) and was again revived in 1S28. Sec. 108, H. & H. 573.
    The only act of limitation of three years, is an account for goods, wares and merchandise, or articles charged in a store account. Sec. 107, H. & H. 573. It is therefore plain this plea was erroneous.
    The next questions arise on the charges of the court.
    It can hardly be necessary to say anything in vindication of the charges. They seem to be very obvious. It certainly cannot be questioned at this day that possession of a note is prima facie evidence of ownership. And it is equally clear that, for the purposes of justice, a jury may presume a note was indorsed at any time before maturity. The proof as to the time it was indorsed was a little uncertain. Merrill’s evidence was quite indefinite. As that fact could not be proved positively, it was but fair the jury should indulge such presumption as would sustain the legality of the transaction, instead of the presumption which would show it illegal. Men are never presumed to violate law; that must be proved.
    The last instruction is certainly free from objection. Its application may not be so clear. In other words, the jury may not have exercised proper vigilance in scanning the evidence.
    Physicians’ accounts are always hard to prove. Nothing but strong circumstantial evidence can commonly be brought to bear. Monette proves such circumstances as would seem to authorize a belief that the account was fair. He proves that Leggett was Galtney’s physician, and that he met him there on consultation; that the family was sickly, and large, and that the account was moderate. This evidence was certainly such as precludes this court from saying injustice had been done.' The defendants below had all the benefit of favorable instructions. The jury did not allow the whole claim ; and from all that appears of record, they have done as near right as could be expected.
    New trials are never granted in doubtful cases, when the law has been fairly stated to the jury.' They are the proper judges of the weight of evidence ; and unless it is plain that they have disregarded the evidence, or given undue weight to it, courts never interfere.
   Mr. Justice Thacher

delivered the opinion of the court.

This was an action of assumpsit upon two promissory notes, and an account for services as physician and surgeon. Plea of non assumpsit, and a special plea that the account had not accrued within three years, were filed by the defendants.

A demurrer to the special plea of limitation was properly sustained by the court below. The statutory limitation of three years was not applicable to this case.

It becomes unnecessary to examine the propriety of the charges of the court below to the jury respecting the assignment of one of the notes sued upon in this action. The defence sought to be made by virtue of the statute of 1840, prohibiting the transfer of their bills receivable and evidences of debt, by banks, could not be sustained under the general issue. Such a defence could only be reached by plea in abatement. Planters Bank v. Sharp, 4 S. & M. 27.

The evidence, however, upon which the jury found for the plaintiff some portion of the account for medical and surgical services, seems extremely vague and uncertain. The only witness called by the plaintiff to establish this account, could speak neither as to the time or the character of the services charged, and, in point of law, gave no testimony as to the account filed. It is true, that it is difficult for accounts of this character to be strictly proved, nor, indeed, is it necessary; but it would seem to be always in the power of a physician or surgeon to show that he was in the habit of keeping correct books of accounts, and that the account sued upon had been correctly copied from his books. It is also true, that this court will not lightly disturb the finding of a jury in cases of this kind, where they are peculiarly the proper judges of the weight of the evidence ; but, in the present instance, the evidence does not seem at all to warrant the verdict upon the account.

Judgment reversed, and new trial awarded.  