Barton v. Sutherland , 39 S.C.L. 57 ( 1851 )

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.