majority">Saffold, J.

the action was assumpsit, in which Turner was plaintiff, and Matthews defendant,-to recover the value of services rendered by the former,as a physician. The plea was non-assumpsit. Upon the trial, Turner proved he was a practising physician, in 1823, and when the act passed to establish medical boards, he proved by Dr. Littlefield, that he-requested the witness, within the time prescribed by the act, to have his name enrolled with the board of Huntsville, as a practising physician; and that the witness applied to Dr. Fearn, a member of the board, to make the enrollment: but he did not know that the enrollment was made.

Dr. Fearn’s evidence shewed, that he was a' member of the board, and the secretary ; that it had been his uniform practice, whenever he received an application, to enroll it immediately, if where the book was kept- — if not, to make a memorandum at the time *241the application was made, and make the enrollment as soon as he went to where the book was; that Turner had never been enrolled, and he had no ’recollection that any application for the purpose had ever been made to him. He did remember, distinctly, that Dr. Littlefield made application for himself, when the board was in session, and was' then enroll* ed; and Littlefield proved, also, that he made application for Turner when he applied for himself.

Upon this evidence, the court determined that, if the plaintiff could prove his account, he was entitled to recover. The court, also, instructed the jury, they had nothing to do with the question of enrollment, or the right of the plaintiff to recover as a physician, as the defendant could not avail himself of a defence upon that ground, as he had not relied upon it in a special plea, either in abatement, or in bar.

It is assigned for error, that the court made the decision, and instructed the jury as stated.

If, from the exceptions, as stated, we are to conclude, that the court below determined the fact, that the enrollment had been made; or, even that, through Lit-tlefield, an application had been made for the purpose, we could not hesitate to decide, that those, being questions of fact, the jury alone, had a right to determine them; and that the different course, was an invasion of their province.

If the decision be viewed in a different light, and according to the more explicit instructions to the jury, that they had no concern with such inquiries, because not specially pleaded — that the objection was unavailable under the general issue — the law of the court may be well questioned.

It is said by Chitty,a that, in assumpsit, under the *242general issue, any matter -which shews that the plaintiff never had any cause of action, may be given in evidence; and also, that most matters, in discharge of that action, which shew, that, at the time of the commencement of the suit, the plaintiff had no subsisting cause of action, may be taken advantage of. It is, as observed by Lord Holt, a proctice which has crept in improperly, but is now, perhaps, too settled to be altered.

He also says,a“ under this plea, the defendant may give in evidence, various matters of defence, which, in effect admit that a contract was made, but deny, that it was or is obligatory upon him — as the want of sufficient or legal consideration for the contract: or, illegality in the contract itself, may be given in evidence, under this plea — as gameing, usury, &c.”

It is, however, contended, that admitting the opinion of the court to have been erroneous, it sufficiently appears, that Turner had substantially complied with the requisition of the statute, and was entitled to recover; so that the error cannot prejudice ,the plaintiff in error, or entitle him to a reversal and new trial. — On the contrary, it is insisted, that the evidence shews the fact of enrollment was not proved; therefore, the judgment ought to be totally reversed.

The question, whether the enrollment, or application for the purpose, was duly made, must depend on the comparative weight of the testimony of Drs. Littlefield and Fearn, the superiority of tlfeir recollections, and what preference is due to affirmative., over negative testimony. These are questions, proper for the determination of the jury; and- which the court was incompetent to decide.., If jt.be conceded, that the mere application of Turner, made through *243his friend or agent, to have his name enrolled, was a virtual compliance with the statute, (on which no decisive opinion is now expressed,) jet, that fact, no less than any other, required a finding by the jury, it having been contested. We are, therefore, of opinion, there was error in the judgment below, for wbich the same must be reversed, and,.that the cause be remanded for a new trial.

Vol.1:473.

page 471.

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