
    Spaulding versus The Inhabitants of Alford.
    The statutes of 1817, c. 131, and 1818, c. 113, denying the benefit of law for the recovery of fees to practitioners of physic not duly licensed, extend to physicians residing out of this State, in regard to professional services rendered within it.
    The St. 1817, c. 131, was not repealed, as to the licenses to practitioners of physic, by St. 1818, c. 113, until the first section of the last act took effect.
    Upon a bill of exceptions to the opinion of the Court of Common Pleas, this Court refused to consider an objection to a nonsuit, which did not appear by the exceptions to have been raised and overruled, the objection being such as might have been obviated by proof.
    This case came before the Court upon a bill of exceptions to the opinion of Howe, one of the justices of the Court of Common Pleas.
    The action was brought by the plaintiff upon his bill for services as a physician and for medicine delivered, in September 1820, in his attendance upon a pauper who was chargeable to the town of Alford. It was proved, that the plaintiff finished his medical studies in Pittsfield in December 1818, but that he was not examined for a license to practice, because the Medical Society of Berkshire was not then organized : — that he began at that time to practise in Pittsfield as a physician on his own account, and continued to practise there until October 1819, though he still lived with his instructer, Dr. Childs, on whose patients he occasionally attended, as he had done before he had completed his education; but Dr. Childs charged him nothing or tuition after he was entitled to an examination : — that he then established himself in the State of New York, where he obtained a license to practise in his profession, and where he has continued to reside and practise ever since.
    The defendants moved for a nonsuit, because the St. 1817, c. 131, and St. 1818, c. 113, require the plaintiff to have been licensed according to the provisions of those statutes, before he can have the benefit of law for the recovery of any debt or fee accruing for his professional services.
    It was contended, on behalf of the plaintiff, that he having been regularly educated in this Commonwealth, and having commenced and continued his practice here, as before mentioned, and it not being his fault that he was not licensed, there being at the time no regular board of officers organized in Berkshire to examine and license him ; and that he being, at the time of the services rendered, a regular licensed physician in the State of New York, the place of his residence ; he was not, by the spirit of those statutes, to be deprived of the benefit of law for the recovery of his fees for professional ser vices occasionally rendered in Massachusetts.
    
      Howe J., who tried the cause, was of opinion that the statutes were intended to operate upon all persons coming into our courts to assert their rights to recover for services perform e-d in this Commonwealth, whether citizens of this or some other State : — that to maintain an action it was necessary for the plaintiff to show that the requirements of the statutes have been regularly complied with : — that the license in New York was not a substitute for an examination and license here : —that the plaintiff having been a student when the St. 1817, c. 131, went into operation, he could not afterwards have entered upon the practice of physic within this Commonwealth, within the meaning of that statute, or of St. 1818, c. 113, without having been examined and licensed according to the provisions of one act or the other : — that his intending to have submitted himself to an examination, and being qualified therefor, and being prevented by the neglect of the Medical Society in making proper provisions for that object, could make no difference :—and that the evidence in favor of his having entered upon the practice of physic within this ‘Commonwealth before July 1819 was equivocal in its nature, without reference to St. 1817, c. 131, but, taken in connection with that statute, the jury could not infer from it that the plaintiff did enter upon the practice of physic before that time.
    A nonsuit was therefore directed, and the plaintiff excepted to this opinion.
    And now it was contended by Whiting and Hubbard, that the nonsuit was wrong, because these acts were not intended to affect regular practitioners residing out of the State. But if they were, the plaintiff was exempted from their operation, he being proved to have been a practitioner in this Commonwealth from the 19th of February 1819, when the first act was re pealed as to the time of commencing practice, until the 1st of “ July 1819, when the last act went into operation in that respect. The proof of his being a practitioner was clear, and the fact ought to have been submitted to the jury. The nonsuit was wrong also, because there was a count for goods sold and delivered. The statutes do not extend to a debt for the value of medicines administered ; they relate only to professional services.
    Bryant, for the defendants.
   The opinion of the Court was delivered at May term 1823, by

Wilde J.

The defendants object to the plaintiff’s right to recover for his professional services, on the ground that he has never been licensed to practise, according to the provisions of the statute of 1817, c. 131, or the additional act of 1818, c. 113. By the first statute it is enacted, that no person shall recover fees, &c., who shall commence practice after the 1st of July 1818, without a degree or license. The plaintiff finished his studies in December 1818, and was never licensed under that act, and, if it had continued in force, he could not now recover. The excuse given for his not being examined in compliance with the requisitions of the statute is insufficient; there is nothing in the act to confine him to the county where he studied, and he might be examined and licensed by examiners in any other county. By the additional act, no person entering the practice of physic or surgery after the first day of July 1819 shall be entitled to recover any debt or fee accruing for his professional services, unless he shall, previously to rendering those services, have been licensed by the officers of the Massachusetts Medical Society, or shall have been graduated a doctor in medicine in Harvard University.

All matters and clauses in the former act “ which are contrary to the provisions of this act” are repealed. This act passed in February 1819. And the plaintiff’s counsel contend, that the repealing clause took effect immediately, so that the plaintiff might lawfully practise in the interval between February and July, and would not come within the provisions of either act. There is, however, nothing inconsistent or contradictory in allowing the first act to operate till July 1819, as to the licenses to practitioners.

If the plaintiff commenced practice at any time between •July 1818 and July 1819, he comes within the prohibition of the first aci; if after the 1st of July 1819, he comes within the second. The legislature did not mean, by the second act, that one who had disregarded the existing law, by commencing practice without a license, should be in as good a situation as those who had complied with it. The prohibitions in the first act continued until the 1st of July, for they were not until then inconsistent with the new provisions. These were intended merely to alter the mode of examination, and some of the qualifications, to make some additional regulations for the same object, and with the same general intent, as in the first.

If this is the law, it is unimportant to inquire, why the plaintiff was not licensed in compliance with the first act. Whatever was the reason, he might probably, if duly qualified, have been licensed under the second.

If he had occasionally practised in the manner he seems to have' done, it might be considered as part of his education, and not as a regular commencing of practice. If he were in other respects entitled to a license, it would be no objection to him, that, after his regular course of study, he had spent six or twelve months with his former instructor, in acquiring practical knowledge and experience in his profession.

The statutes must apply to practitioners living without the State, as well as to those within it; there is no prohibition to foreigners to practise here, but they must comply with the laws here, or our courts cannot aid them in recovering their fees.

We cannot adopt the plaintiff’s construction of these statutes, especially that of the last. We do not think its operation is confined to practitioners settled within the State. The words of the act will well bear a more extensive meaning, and we cannot suppose that the legislature intended to deprive our own citizens of a privilege allowed to the citizens of the neighbouring States. The object of the act was to guard against the evil effects to be apprehended from the practices of ignorant and unskilful practitioners. This purpose cannot be completely obtained, if those ol this description, if any such there be, on the borders of the Commonwealth, may be permitted to practise within its limits. If it is convenient for the plaintiff, or any other respectable physician living in an adjoining State, to extend his practice within this Commonwealth, there is a provision in the last act in conformity to which he may obtain a license for so doing. The construction contended for by the plaintiff’s counsel, would leave our citizens near the borders of the State exposed to all the evils from which it was unquestionably the intention of the legislature to relieve them.

As to the other point, of the medicines sold and administered, the question is not regularly before us. We can receive no evidence of what passed at the trial in the Court of Common Pleas, except from the report of the judge who tried the cause. By his report, it does not appear that the point was raised and overruled. If evidence had been offered to this point at tile trial, the defendants might have proved that no medicines were administered, or that they had been paid for, or other grounds of defence, which, as the cause was conducted, they were not called on to produce.

This principle is fully discussed and properly settled m Beekman v. Frost, 18 Johns. Rep. 544. The rule is confined to such objections as might, if made below, have been obviated by amendment or proof. The case at bar falls within the latter branch of this rule ; if it were not observed, it would be to make this the court of original, instead of appellate jurisdiction.

Judgment of the Court of Common Pleas affirmed.  