Durand v. Grimes

By the Court. Lumpkin, J. delivering the opinion. [1.] One of the grounds of error assigned in this case is, that it is not averred in the declaration, neither was it proven, that the plaintiff was a licensed physician, and as such, authorized to sue for and recover his medical account. By reference to the forms in CMtty, it will be found not to be necessary to make this allegation. The plaintiff declared in his writ, as a physician; and the defendant, instead of demurring, pleaded to the merits of the action. He is too late to take this exception on the trial term of the appeal. [2.] It is objected, that the books of Dr. Grimes should [696] bave been produced. And as a matter of practice, the defendant is right. But then, one of the witnesses, Mrs. King, proved the actual rendition of the services. And this is better than the books. [3.] The Judge’s charge is excepted to, because he did not instruct the Jury that they should find that King was insolvent, before Grimes could go against Durand. But this complaint proceeds upon the idea, that King was the hirer of the slave; the proof did not warrant this assumption. But suppose it did, Counsel should have called the attention of the Court to this point. The charge was right, so far as it went. It is no ground for a new trial that it did not go far enough. We affirm the judgment of the Circuit Court over-ruling the objections to the testimony of Judge Hill and Major Morgan. And although there may have been some irregularity as to the mode of establishing the account, still, as there was no motion made for a new trial, and we are entirely satisfied with the finding, we shall decline to disturb the judgment.