Hewitt v. Wilcox , 42 Mass. 154 ( 1840 )

Shaw, C. J.

It may be admitted, we think, that it was the policy of St. 1818, c. 113, upon the construction of which this action depends, to throw a discouragement in the way of unlicensed and irregular practitioners of medicine and surgery, and lay them under a disability in this respect. The provision was, that no person, entering the practice after the day therein named, should be entitled to the benefit of law for the recovery of any debt or fee accruing for his professional services. Taking the terms together, the word “ recovery,” with that of “ benefit of law,” the construction, we think, is, “ benefit of legal proceedings including all modes in which payment of a debt may be obtained by process of law, or other legal proceedings, such as set-off, claim before commissioners of insolvency, and the like. It results from this, that the policy of the statute was intended to be reached and effected, not by providing that a debt should not accrue, by force of the common law, from services done on request, but that the debt should not be enforced by legal proceedings of any kind. It therefore affected the remedy, but not the right. If this was the purpose of the law, then it left in force that great principle of the common law, that when services are performed on request, and no agreement is made in respect to them, the law raises an implied promise, to pay so much as the person performing them deserves to have ; and when there n no restraint upon the remedy, an action lies on such promise. When therefore the statute was repealed, which imposed this -estraint upon the plaintiff’s remedy, he had a right, at com-non law, to commence and maintain his action. Such repeal was effected by the revised statutes, and the repealing act which accompanies them.

It has however been insisted, that the repeal was qualified and restrained by the provision of the Rev. Sts. c. 146, § 5, that the repeal shall not affect any act done, or any right accruing, or accrued, or established, or any suit or proceeding had or commenced before such repeal should take effect. The construction already put upon this act, that it affected the remedy and not the right of the plaintiff, is an answer to this argument. No right accrued to the defendant under the statute of 1818 ; he was shielded from any liability to an action, whilst the statute was in force, but no right vested or accrued, or begun to accrue, under it. This clause, therefore, does not take the act of 1818 out of the operation of the general repealing clause of the revised statutes.

Judgment for the plaintiff.