
    Dr. THOMAS ADAMS’ Adm’r. vs. LEVIN STEWART.
    A physician cannot recover a medical bill without proving his license to practice.
    Sussex,
    April term, 1849.
    Action for a physician’s bill. Trial and verdict for plaintiff $80 00, subject, &c.
    
      The question was, whether plaintiff could recover on a medical bill, without proving his license.
    
      Saulsbury, for plaintiff.
    
      Cullen, for defendant.
    
      Mr. Cullen.
    The act of 1822, § 6, provides that “no person who is not at the time of passing this act a practitioner of medicine and surgery in this State, or who is not residing in and regularly admitted to practice medicine and surgery, in some other State, shall hereafter practice medicine or surgery and receive or demand any fee or reward therefor in this State, without having first obtained a license,” &c. The act of 1835, [8 vol. 355,] exempts Thompsonian doctors from the penalties of this act, but does not enable them to sue for fees; and the act of 1843, [9 vol. 549,] exempts Homcepathic physicians, and allows them to sue:
    Doctor Adams, without showing himself within the exceptions of the act of 1822, has no right to maintain suit. The question is, whether plaintiff shall be required to show his right to sue, or whether defendant shall be obliged to negative the qualifications. lion assumpsit puts in issue the plaintiff’s right, on the whole case, to recover. [1 Ch. Pl. 469; 2 Hall’s Rep. (N. Y.) 465; 41 Com. L. R. 155; 3 Mees & Welsby 521; 14 Johns. Rep. 369; 21 Com. L. R. 395; 19 Ib. 300.]
    
      Mr. Saulsbury.
    The matter relied on as a defence should have been pleaded, or proved by the defendant. [2 Camp. R. 144,441; 2 Harrison’s Dig. 15, 91. The cases cited are under a statute of 55 Ceo. 3, chap. 194, which enacts that the plaintiff shall prove at the trial his qualifications, &c. The old statute of 8 Hen. 8 chap., under which the case in 2 Campbell’s Reports arose, was like our statute, and the court held that the defendant must prove the disqualification, to defeat the action.
   The Court,

after a curia advisare, on the 18th of June, 1849, set

aside the verdict and ordered a nonsuit, on the ground that the plaintiff had not proved his license.

Judgment of nonsuit.  