Jones v. Sterns.

of exceptions. To support such a charge, the evidence must be clear, without conflict, and leave nothing to be done. except to draw a legal conclusion from the facts.-Abney v. Pickett, 21 Ala. 739; Knight v. Bell, 22 ib. 198; Hollingsworth v. Martin, 23 ib. 591; Woodfolk v. Sullivan, ib. 538. It is possible that, under the facts before the jury, it might have been a question whether the sale was private; but it was not the province of the court to determine that question. From the state of the record, as above described, it results that the question, which was argued by counsel, whether a note given to an administrator, upon a private renting of the lands of the estate, is void, does not arise; and the proof before the circuit court was not such as to justify the court in assuming, that the prima facie case made out for the plaintiff by the note was successfully assailed.-Merriwether v. Taylor, 15 Ala. 735. We decline to decide the question argued by counsel, because it is not presented on the record. The judgment of the court below is reversed, and the cause remanded.

[ASSUMPSIT ON COMMON COUNTS FOR SERVICES RENDERED.]

1. Relevancy of rebutting evidence.-In an action by an attorney, to recover for services rendered by him as defendant's agent in going to Louisiana, plaintiff proved a conversation between himself and defendant, in which the latter requested him to accompany him to Louisiana as his agent, and he agreed to go; and that they both left the county in which they resided at the same time. Held, that defendant, to rebut this evidence, and to show that they in fact went to Texas, and not to Louisiana, might prove that plaintiff had land and slaves in Texas, and had stated that he had gone to Texas with defendant.

2. Relevant evidence, though insufficient, admissible.-Evidence which is relevant to the issue, is admissible, without regard to its weight or sufficiency.

APPEAL from the Circuit Court of Conecuh.

Tried before the Hon. C. W. RAPIER.

Jones v. Sterns.

THIS action was brought by Henry F. Sterns against Churchill Jones, to recover $815 "for services rendered in making two trips to Shreveport, Louisiana, as agent or attorney for defendant." The exclusion of certain evidence offered by the defendant, which is stated in the opinion of the court, is the only matter assigned as error.

CHILTON, MORGAN & CHILTON, for appellant.
WATTS, JUDGE & JACKSON, contra.

RICE, C. J.-It appears from the record, that under the issues joined, one of the material questions of fact on the trial was, whether the appellee went with the appellant to Shreve port, in Louisiana, as his agent or attorney. The evidence introduced by the appellee, touching that question, was, that he and the appellant were both citizens of Conecuh county; that in a conversation between them, the appellant asked him to go to Shreveport, in Louisiana, with him, on business as his agent or attorney, the appellee being a practicing attor ney; that the appellee promised and agreed to go; and that they went off about the same time from the county. The time of their leaving was not shown, nor were any particular dates fixed by the evidence. It was shown that the appellee had for years transacted all the law business of the appellant. There was no other proof that the appellee went to Shreve port. The appellant then offered to prove by a witness, that the appellee had land and slaves in Texas; that he had stated several times to the witness, that he had gone to Texas with the appellant; that witness had seen the appellee in New Orleans, in 1851, who wished to send a slave by witness to his plantation in Texas; and that the appellee had told witness, that he had been to Texas frequently. This evidence was offered by the appellant, to rebut the presumption arising from the agreement between the parties to go to Shreveport, in Louisiana, and their leaving Conecuh county about the same time, and to show to the jury that they in fact went to Texas, and not to Shreveport. On objection by appellee, the court refused to permit the evidence thus offered by appellant to go to the jury; and the appellant excepted.

We think, that the evidence thus rejected by the court was

Richardson v. Dorman's Executrix.

admissible. It certainly tended to prove, that the appellee did not go with the appellant to Shreveport, in Louisiana. It was the right of the appellant to prove the fact that the appellee did not go with him to Shreveport, and to repel the presumption to the contrary which might have been drawn by the jury from the evidence which had been introduced by the appellee; and any evidence which tended to repel the presumption which might have been drawn from the evidenceintroduced by the appellee, or to prove that he did not go with the appellant to Shreveport, was relevant and admissible, without regard to its weight or sufficiency.-1 Greenlf. on Ev. (5th edition) § 51 a; Rutherford v. McIvor, 21 Ala. 750; Anderson v. Long, 10 Serg. & Rawle, 55; Cuthbert v. Newell, 7 Ala. 457; McNeill v. Reynolds, 9 ib. 313; Havis v, Taylor, 13 Ala. 324.

For the error of the court below in rejecting the evidence offered by the appellant, its judgment is reversed, and the cause remanded,

RICHARDSON vs. DORMAN'S EXECUTRIX.

[ACTION ON OPEN ACCOUNT FOR MEDICAL SERVICES RENDERED.]

1. Diploma of physician, when admissible evidence.-In an action on an open account for services rendered as a physician, a diploma from a medical college would be admissible evidence, if the services were rendered since the passage of the act of 1854, (Pamphlet Acts 1853-4, p. 48,) “to allow all regular graduates of any medical college in the United States to practice medicine"; but, since that act cannot retro-act so as to authorize a recovery for medical services rendered before its passage, and since the Code (§ 977) prohibits a recovery for services rendered by a physician who has not obtained a license from one of the medical boards of this State, a diploma would confer no authority to practice medicine before the passage of the act of 1854, and would therefore not be competent evidence to sustain an action for such services.

2. Entries on physician's books evidence of what facts.-The original entries in the books of a physician, which are declared by the Code (§ 2298) to be "evidence for him, in actions for the recovery of his medical services, that the service was rendered", are evidence of the items of his account for medi

Richardson v. Dorman's Executrix.

cines administered and furnished to his patients in the course of his practice; but the value of the medicines, as well as of the active services rendered, must be otherwise proved.

APPEAL from the Circuit Court of Greene.

Tried before the Hon. ANDREW B. MOORE.

THIS action was brought by Mrs. Rebecca J. Dorman, as the executrix of her deceased husband, Daniel A. Dorman, against William B. Richardson; was founded on an open account for medical services rendered by the deceased as a physician, during the months of July and August, 1853; and was commenced on the 2d March, 1854. The pleas were, non assumpsit, payment, and set-off. On the trial, as appears from the bill of exceptions, the plaintiff admitted that she had notice to produce on the trial her testator's license to practice medicine, and offered in evidence a paper, or parchment, which purported to be a diploma from the university of Vermont in the year 1852, under the seal of the university, and signed by the faculty. "The court permitted this diploma to go to the jury, as evidence of plaintiff's right to recover, provided her right of action was made out in other respects, without any proof in relation to said diploma; and thereupon defendant excepted."

"In the further progress of the trial, the plaintiff offered in evidence the books of her testator, and the entries thereof in relation to the account sued on, which were admitted by defendant to be in the handwriting of said testator. Said entries commenced on the 19th July, 1853, and continued each successive day until the 3d August following, and ran thus: For visit and prescription', each day, so much; and, 'For medicine', so much. The amount of medicine charged in this way consisted of laudanum, camphor, morphine, brandy, &c., and amounted to $12 25; and for visits and prescriptions, $118. The court permitted these entries to go to the jury, as evidence of the services rendered, and as evidence that the medicines there charged were furnished to defendant by said testator; and thereupon defendant excepted to said entries being evidence for plaintiff, so far as they related to the medicines there charged."

These two rulings of the court are now assigned as error.

Williams and Wife v. Gunter.

W. COLEMAN, for the appellant.

S. F. HALE, contra.

WALKER, J.-The Code (chapter 2, title 13, part 1) prohibits the recovery of a physician's account for services as such, unless he had a license from a medical board. The act of 1854 (Pamph. Acts 1853-4, p. 48) permits regular graduates of medical colleges to practice without license. The account sued upon in this case is for services rendered before the adoption of the latter statute, and a suit upon it must be governed by the Code. Under the Code, it is clear that the diploma afforded no authority to practice medicine, and therefore was not competent evidence for the purpose for which it was admitted.-Mays v. Williams, 27 Ala. 267.

We think that section 2298 of the Code was designed to make the books of a physician evidence of the items of his account for medicines administered and furnished to his patients in the course of his practice. The administration and supplying of medicines by a physician, under the dictates of his professional skill, constitute, at least in part, the services rendered by him as a physician. He ought, therefore, to be permitted to prove the medicines furnished by him, in his practice as a physician, by the original entries in his books. It must be observed, however, that the value of the medicines, as well as of the active services of the physician, must be proved otherwise than by his books.

The judgment of the court below is reversed, and the cause remanded.

WILLIAMS AND WIFE vs. GUNTER.

[DECREE ON FINAL SETTLEMENT OF GUARDIAN'S ACCOUNTS.]

1. Bill of exceptions necessary.—The appellate court will not revise any supposed error of the probate court in its decision upon facts, unless it was excepted to, or reserved in some other manner, in the primary court.