8 S.E. 767 (N.C. 1889), Puckett v. Alexander

Citation:8 S.E. 767, 102 N.C. 95
Opinion Judge:SHEPHERD, J.
Party Name:PUCKETT et al. v. ALEXANDER et al.
Attorney:Grandly & Aydlett, for appellants. Pruden & Vann and R. P. Felton, for respondents.
Case Date:February 18, 1889
Court:Supreme Court of North Carolina

Page 767

8 S.E. 767 (N.C. 1889)

102 N.C. 95

PUCKETT et al.



Supreme Court of North Carolina

February 18, 1889

Appeal from superior court, Tyrrell county; GRAVES, Judge.

Action by Puckett's distributee for an accounting against the administrator, who had retained $325 from the estate for his services as physician. Judgment for plaintiff, and defendant appeals.

A contract, invalid under a law in force at the time it was made, is not validated by its repeal, especially in the absence of an express provision to that effect.

Grandly & Aydlett, for appellants.

Pruden & Vann and R. P. Felton, for respondents.


The act of assembly of 1858, c. 258, § 2, re-enacted by section 3122 of the Code, provides that "no person shall practice medicine or surgery, nor any of the branches thereof, nor in any case prescribe for the cure of diseases, for fee or reward, unless he shall have been first licensed so to do in the manner hereinafter provided: provided, that no person who shall practice in violation of this chapter shall be guilty of a misdemeanor." Section 2 of the same act, re-enacted by section 3132 of the Code, provides that such persons shall not be entitled to sue for or recover before any court for such services. The defendant has been constantly practicing medicine since he received a diploma from the regular medical college in 1867, and "for fee or reward" rendered the services in 1883 which constitute the basis of his claim in this action. The performance of such services for fee or reward was absolutely prohibited by the statute, and the contract was therefore void in its inception. It is immaterial whether the act of the defendant was malum in se or merely malum prohibitum. RUFFIN, C.J., in Sharp v. Farmer, 4 Dev. & B. 122, says that the distinction between these "was never sound, and is entirely disregarded; for the law would be false to itself if it allowed a party through its tribunals to derive advantage from a contract made against the intent and express provisions of the law". The defendant, however, insists that vitality is given to this void contract by chapter 261, acts 1885, which provides that section 3132 of the Code be amended "by adding after the last words of said section the words, 'Provided that this section shall not apply to physicians who have a diploma from a regular medical college, prior to...

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