plevin suit. There is no hardship in this; for, upon a proper application, the trustee would doubtless be permitted to intervene and defend the replevin case.

The order of the Circuit Court is affirmed.

Petition for rehearing denied.

MONTANA SUPREME COURT.

A. C. LEGGAT, Respt.,

V.

JOHN GERRICK, Appt.

(Mont., 88 Pac. 788.)

Appeal-order denying new trial-pleadings.

1. Upon an appeal from an order denying defendant a new trial after verdict in plaintiff's favor, the question of the sufficiency of the complaint to support a cause of action cannot be raised, unless it was properly raised in the trial court. Physician-suit for compensation-li

cense.

2. A physician suing for the value of services rendered is not bound, in the first instance, to show that he had a license to practise medicine.

the bankrupt's property and credits, but | possession of this property, and therefore that no one can litigate with the assignee that it should retain jurisdiction of the recontested rights in any other court, except in so far as the circuit courts have concurrent jurisdiction, and that other courts can proceed no further in suits of which they had at that time full cognizance; and it was a prevalent practice to bring any person who contested with the assignee any matter growing out of disputed rights of property or of contracts into the bankrupt court by the service of a rule to show cause, and to dispose of their rights in a summary way. This court has steadily set its face against this view. The debtor of a bankrupt, or the man who contests the right to real or personal property with him, loses none of those rights by the bankruptcy of his adversary. The same courts remain open to him in such contests, and the statute has not devested those courts of jurisdiction in such actions. If it has, for certain classes of actions, conferred a jurisdiction for the benefit of the assignee in the circuit and district courts of the United States, it is concurrent with and does not devest that of the state courts." And in Bardes v. First Nat. Bank, 178 U. S. 532, 44 L. ed. 1180, 20 Sup. Ct. Rep. 1000, it was said: "It was also repeatedly held by this court that the right of an assignee in bankruptcy to assert a title in property transferred by the bankrupt before the bankruptcy to a third person, who now claimed it adversely to the assignee, could only be enforced by a plenary suit, at law or in equity, under the 2d section of the act of 1867; and not by summary proceedings under the 1st section thereof, notwithstanding the declaration in that section that the jurisdiction in bankruptcy should extend 'to the collection of all the assets of the bankrupt,' and 'to all acts, matters, and things to be done under and in virtue of the bankruptcy,' until the close of the proceedings in bankruptcy." Again, in Louisville Trust Co. v. Comingor, 184 U. S. 18, 46 L. ed. 413, 22 Sup. Ct. Rep. 293, it was held that, where an assignee asserted adverse claims existing at the time the petition was filed, they could not be disposed of on summary proceedings. The case of Mueller v. Nugent, 184 U. S. 1, 46 L. ed. 405, 22 Sup. Ct. Rep. 269, upon which counsel relies as supporting his claim, is not at variance with this rule, if we understand it aright, as we think appears from a review of that case in York Mfg. Co. v. Cassell, 201 U. S. 344, 50 L. ed. 782, 26 Sup. Ct. Rep. 482. See also Re Wells, 114 Fed. 222; Kennedy v. Pierce's Loan Co. 100 Mo. App. 269, 73 S. W. 357; Re Smith, 9 Am. Bankr. Rep. 590, 119 Fed. 1004. If correct in these conclusions, it would seem to follow that the state court was the first to acquire

Interest-professional services.

3. A claim for services rendered by a physician carries interest, under a statute providing that every person entitled to damages certain, or capable of being made cerwhich is vested in him upon a particular tain by calculation, the right to recover day, is entitled to interest from that day.

(February 5, 1907.)

Case Note.-Burden of proof as to physician's license in suit to recover for services.

There is a conflict of authority as to whether a physician who brings an action to recover for professional services rendered by him has the burden of proving that he is a duly licensed or registered physician, or whether the burden rests upon the defendant, as a matter of defense, to show that the plaintiff does not possess such a license. It is generally conceded, where there is a statute requiring that physicians shall secure a license before being permitted to practise their profession, that noncompliance with such statute will be a bar to a recovery for services rendered.

The following cases hold that the burden of proving that the physician possesses such license rests upon the plaintiff, on the theory that, as the statute forbids a recovery for professional services rendered by an unlicensed physician, or makes it a misdemean

A

PPEAL by defendant from an order of, Leggat to recover a balance of $100 for prothe District Court for Silver Bow Coun- fessional services rendered for the defendty denying a motion for new trial after ant. The action appears to have originated verdict in plaintiff's favor in an action in the justice of the peace court. In the brought to recover compensation for serv- district court it was tried to the court sitices rendered. Affirmed. ting without a jury, a jury having been expressly waived. The court made findings of fact and conclusions of law in the plaintiff's favor, and rendered judgment that he recover from the defendant the sum of $100 with interest thereon from May 26, 1902.

The facts are stated in the opinion. Mr. John A. Shelton, for appellant: One who has not procured a certificate cannot recover compensation for services rendered as a physician.

Roberts v. Levy (Cal.) 31 Pac. 570; Bohn From an order denying defendant a new

. Lowery, 77 Miss. 424, 27 So. 604.

The burden is on the physician suing to recover compensation to allege and prove a compliance with the statute.

trial, this appeal is prosecuted.

The questions argued in this court are: (1) Does the complaint state facts sufficient to constitute a cause of action? (2) Is the evidence sufficient to support the decision of the court? and (3) Did the court err in allowing interest on the amount recovered?

Adams v. Stewart, 5 Harr. (Del.) 144; Cooper v. Griffin, 13 Ind. App. 212, 40 N. E. 710; Dow v. Haley, 30 N. J. L. 354; Wilson v. Vick (Tex. Civ. App.) 51 S. W. 45; Conkey v. Carpenter, 106 Mich. 1, 63 N. W. 990; Wooley v. Bell, 33 Tex. Civ. App. 399, 76 S. W. 797; Bower v. Smith, 8 Ga. 74. Messrs. Kremer & Kremer, for re- is not any appeal from the judgment. The spondent:

The physician and surgeon who seeks to recover the value of his professional services is, in the absence of evidence to the contrary, presumed to have authority or right to practise.

9 Enc. Ev. p. 823; McPherson v. Cheadell, 24 Wend. 15; Jo Daviess County v. Staples, 108 Ill. App. 539; Lacy v. Kossuth County, 106 Iowa, 16, 75 N. W. 689; Dickerson v. Gordy, 5 Rob. (La.) 489; Lyford v. Martin, 79 Minn. 243, 82 N. W. 479; Cather v. Demerell, 5 Neb. (Unof.) 490, 99 N. W. 35; Crane v. McLaw, 12 Rich. L. 129.

1. There does not appear to have been any objection that the complaint does not state facts sufficient to constitute a cause of action, urged in the trial court. There

appeal is from the order denying the defendant a new trial, and on such appeal the question of the insufficiency of the complaint to state a cause of action cannot be raised unless it was properly raised in the district court. Charles Schatzlein Paint Co. v. Passmore, 26 Mont. 500, 68 Pac. 1113; Campbell v. Great Falls, 27 Mont. 37, 69 Pac. 114.

2. It is urged that the evidence is insufficient to sustain the decision of the court, in that there was not any evidence offered on behalf of the plaintiff to show "that the plaintiff holds a certificate granted by the state medical board of the state of Mon

Holloway, J., delivered the opinion of tana, entitling him to practise medicine." If the court:

This action was brought by Dr. A. C.

the fact affirmatively appeared that, at the time the services were rendered, the plainor to practise without a license, it rests upon Iowa, 16, 75 N. W. 689; Thompson v. Sayre, the plaintiff to show, before he can recover1 Denio, 175; McPherson v. Cheadell, 24 for services, that he has complied with the Wend. 15; Good v. Lasher, 99 Ill. App. 653; requirements of the statute: Adams v. Jo Daviess County v. Staples, 108 Ill. App. Stewart, 5 Harr. (Del.) 144; Cooper v. 539; Lyford v. Martin, 79 Minn. 243, 82 N. Griffin, 13 Ind. App. 212, 40 N. E. 710; W. 479; Cather v. Damerell, 5 Neb. (Unof.) Dow v. Haley, 30 N. J. L. 354; Spaulding 490, 99 N. W. 35; Dickerson v. Gordy, 5 Rob. v. Alford, 1 Pick. 33; Wooley v. Bell, 33 (La.) 489; Prevosty v. Nichols, 11 Mart. Tex. Civ. App. 399, 76 S. W. 797. This doc- (La.) 21; Webster v. Lamb, 15 S. D. 292, trine is also recognized in Rider v. Ashland 89 N. W. 473. County, 87 Wis. 160, 58 N. W. 236; Westbrook v. Nelson, 64 Kan. 436, 67 Pac. 884; Bower v. Smith, 8 Ga. 74; Durand v. Grimes, 18 Ga. 693; Kenedy v. Schultz, 6 Tex. Civ. App. 461, 25 S. W. 667; Wilson v. Vick (Tex. Civ. App.) 51 S. W. 45.

While the following cases, in addition to LEGGAT V. GERRICK, hold that the burden of proving that the physician was not duly licensed rests upon the defendant, as a compliance with the requirements of the statute on the part of the physician may rightfully be presumed until the contrary is made to appear: Lacy v. Kossuth County, 106

But in several states it is provided by statute that, in an action by a physician to recover for professional services, if the defendant wishes to interpose the defense that the physician is unlicensed, he must give the plaintiff notice to produce his license; and a failure to give such notice will relieve the plaintiff from the necessity of producing and proving his license. Crane v. McLaw, 12 Rich. 129; Barton v. Sutherland, 5 Rich. L. 57; Berry v. Scott, 2 Harr. & G. 92; Jordan v. Brewin, 19 Ala. 238; Mays v. Williams, 27 Ala. 267.

tiff did not have a certificate, then the question of his right to recover would be raised directly. But, as that fact does not appear, the only question presented here is: Upon whom rests the burden of proof? Was the burden upon the plaintiff in the first instance to show that he had such certificate? or, Was it upon the defendant to show that he did not have it? The testimony given at the trial on behalf of the plaintiff by the witness Kremer is as follows: "I knew Dr. Leggat at that time and I can state that I knew him to be a physician and surgeon in the city of Butte, and at that time was the city physician." After a careful review of the authorities the court of appeals of Illinois, in Williams v. People, 20 Ill. App. 92, said: “Where the question of license or qualification of a physician arises collaterally in a civil action between party and party, or between the doctor and the one who employed him, then the license or due qualification under the statute to practise will be presumed. McPherson v. Cheadell, 24 Wend. 15; Thompson v. Sayre, 1 Denio, 175; Pearce v. Whale, 5 Barn. & C. 38." The reason for the rule is stated by the same court in Chicago v. Wood, 24 Ill. App. 40, as follows: "The reason why the license will be presumed where there is no evidence to the contrary rests upon the principle that, when an act is required, by positive law, to be done, the omission of which would be a misdemeanor, the law presumes that it has been done, and therefore the party relying on the omission must make some proof of it though it be a nega

207. In view of the testimony given by the witness Kremer as set forth above, we think the presumption follows that Dr. Leggat had complied with the law, and that the burden of proof was upon the defendant to show that he had not done so. In the absence of any attempt on the part of the defendant to make this proof, we think the evidence is sufficient to sustain the decision of the court.

3. We do not think that the trial court erred in allowing interest on the amount recovered. Its action appears to be warranted by § 4280 of the Civil Code, which provides: "Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor, from paying the debt," and by the construction given to that section by this court in Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201.

Not finding any error in the record, the order denying defendant's motion for a new trial is affirmed.

Brantly, Ch. J., and Smith, J., concur.

NORTH CAROLINA SUPREME
COURT.

MOSES PETERSON

V.

(N. C. 55 S. E. 618.)

Carrier-duty to licensee.

A railroad company owes no duty not to start its cars with a jerk, to one who, in accordance with a practice carried on without its objection, has entered a car to purchase fruit of one not in the employ of the railroad company; nor is it bound, in the absence of knowledge of his presence, to give a signal that the train is about to start.

(December 4, 1906.)

tive." While there is some conflict in the SOUTH & WESTERN RAILROAD, Appt. decisions, the decided weight of authority seems to be in favor of the rule stated above in Williams v. People. McPherson v. Cheadell, supra; Jo Daviess County v. Staples, 108 Ill. App. 539; Lacy v. Kossuth County, 106 Iowa, 16, 75 N. W. 689; Dickerson v. Gordy, 5 Rob. (La.) 489; Lyford v. Martin, 79 Minn. 243, 82 N. W. 479; Cather v. Damerell, 5 Neb. (Unof.) 490, 99 N. W. 35; Rider v. Ashland County, 87 Wis. 160, 58 N. W. 236; Good v. Lasher, 99 Ill. App. 653. The same general rule is recognized by the court of appeals of Indiana in Cooper v. Griffin, 13 Ind. App. 212, 40 N. E. 710, but, by reason of a special statute in that state, the contrary rule is upheld. A somewhat analogous question is presented in an action brought in a court of this state by a for- The fundamental doctrine of PETERSON V. eign corporation. It has been held that it SOUTH & WESTERN R. Co., and the uniform is not necessary for the foreign corporation holding of all courts on the subject, is that, to prove, in the first instance, that it has where a person, without invitation from or complied with the laws of this state en- compensation to the railroad company, goes titling it to do business here. Zion Co-op. and in which it has neither interest nor conupon its cars for a purpose wholly his own Mercantile Asso. v. Mayo, 22 Mont. 100, 55 cern, with its bare permission or acquiesPac. 915; 6 Thomp. Corp. § 7965; Lang-cence, he is a mere licensee, to whom the worthy v. Garding, 74 Minn. 325, 77 N. W. company owes no duty except to use ord

Case Note.-Duty of carrier to one whom it permits to enter its cars upon his own business, and not as a passenger.

Statement by Connor, J.:

Moses Peterson, on his own behalf, testifies: "I was at Huntdale, in this county, 2d May, 1903. I went up on the train to that place and got off about 12 o'clock. The train returning passed there about 5 or 6 on its way to Johnson City. I live in Yancey county, and was about to start home on my wagon when the train came on; but while it was stopped at station I went on the train to purchase some lemons. It was a mixed train, and I got on a freight car where the lemons were. There was a door on each side. There were steps to the door, up which I went. Moses Wilson and Van Adkins went on with me. There was a man in there standing in one corner, and nary care for his preservation after discovering his peril, and to refrain from inflicting wilful or wanton injury.

had lemons and some other fruit to sell. They were in the rear end of the car. The car doors were about 4 feet wide. Both doors were' open. I reached him a dollar and told him to give me three lemons. He says, "The train is going to start in a minute.' I says, 'Well, hand me the dollar, and I'll get out of here.' He handed me the dollar, and as he reached it to me it dropped on the floor. I stooped down to pick it up. The train started, and gave a jerk, and threw me out of the door. I had picked up the dollar, and was straightening up, when the train gave the jerk. There was no signal given of the movement of the train, either by the bell or whistle. It threw me 5 or 6 feet to the door, and out of the door on the ground. The door was nearly 4 feet from the ground, and I fell 5 or 7 feet from the car on my left side and leg, and broke both bones in my left leg. I don't know that it was the custom of the railroad company to sell lemons and other fruit from that car. It was the first time I had ever 458, 36 Am. Rep. 675, where a boy was on defendant's train from day to day, not as a passenger or employee of the company, but by the connivance of the conductor in order to sell newspapers, he was a trespasser, and the company owed him no duty. It is not like the case of a person allowed by the conductor to ride in the car as a passenger with

In Padgitt v. Moll, 159 Mo. 143, 52 L.R.A. 854, 81 Am. St. Rep. 347, 60 S. W. 121, a newsboy, following a practice that had continued so long that the company had ceased to remonstrate, boarded a car with the knowledge of the gripman, and, while stand-out paying fare. ing on the running board, was, in con- In Philadelphia Traction Co. v. Orbann, sequence of the gripman's negligence, 119 Pa. 37, 12 Atl. 816, it was held that a knocked off by a wagon tongue. The court newsboy twelve years of age, who, accordsaid, in effect, that he was in no sense a ing to a custom, was permitted to pass passenger, and that the carrier was not in and out of cars at his pleasure, was bound to exercise the high degree of care neither a trespasser nor a person "enowing to passengers, but was bound to ex-gaged or employed in or about the car," withercise only ordinary care; distinguishing the in the meaning of a statute declaring, in efcase from that class of cases in which the fect, that such persons shall be entitled to person injured was on the train or car with recover against the company only under the the consent of the servant in charge, for the same circumstances that an employee would purpose of being carried. be entitled. In this case the court said, in effect, that the company would be liable for compensatory damages for the negligence of the conductor in pushing the boy off the car; but a judgment giving the plaintiff punitive damages was reversed upon the ground that the evidence was not sufficient to show that the conductor acted wantonly.

A newsboy who jumped on the front platform of a car in order to sell a paper was at most a mere licensee, to whom the company owed no duty except to refrain from wantonly or wilfully injuring him, notwithstanding that newsboys were permitted to get on and off the cars, and sometimes got on the front platform, and were not ordered off; there being some evidence that defendant had a rule, enforced to some extent, directing conductors not to let newsboys get on the front platforms. North Chicago Street R. Co. v. Thurston, 43 Ill. App. 587. A street railway company is not charged with the duty of looking after the safety of a boy eight years old, who, with the conductor's permission, goes upon a car to sell papers; nor is it bound to stop or slacken the speed of the car for him to leave. Fleming v. Brooklyn City R. Co. 1 Abb. N. C.

433.

In Duff v. Allegheny Valley R. Co. 91 Pa.

One who boards a train standing at a crossing to buy oranges from the fruit vender thereon, and is injured in jumping off after the train starts, is not a passenger, to whom the company owes the duty of keeping the train standing for a reasonable or statutory period, nor one wishing to cross the track, to whom the company owes the duty of giving statutory signals. Carter v. Charleston & W. C. R. Co. 64 S. C. 316, 42 S. E. 161.

One who, after leaving a train at his station, boards the same again after it has started, in order to get change which the conductor has promised to give him at that

been there. I was not intoxicated. I had, the custom of the train at that point to only taken one drink that day. That was give notice before starting. It started that just before dinner. When the jerk came, I day with a sudden jerk. There were two was 5 or 6 feet from the door, towards the or three trains a day passing along there. back end. Adkins and Wilson were both I can't say whether the bell rang or the out before I was thrown. When the man whistle sounded the 3d of May, but was the said, "The train is about to start,' they common thing for them to do it. I don't went out the other door from the one I know whether the car had doors in the ends was thrown out. The train had been de- or not. I think Moses went in the side of layed at the stop at that station for about the door." half an hour on account of their screwing up some parts of the engine. I did not get out when the others got out, because I wanted my dollar. It dropped on the floor. I can't say whether the man dropped it, or I."

Enoch Bennett testified: "I don't know that the railroad company kept fruit for sale in the car; but I know that somebody sold fruit in that car, for I have purchased it there myself, and I have seen other people than passengers get things in there. They would go in there, and come out eating oranges or other things. I was there for four months. There was no alarm given of the starting of the train that I know of. I was near enough to have heard it. It was point, while not a passenger, is rightfully | upon the train; and the company owes him the duty to slacken or stop the train to let him alight in safety, and is therefore liable for injuries sustained by him in jumping from the moving train at the conductor's suggestion. Pittsburgh, C. & St. L. R. Co. v. Krouse, 30 Ohio St. 220.

An employee of a shipper, who, with the knowledge, but without the invitation, of the employees of the railroad company, enters a car, loaded and billed for shipment, to do certain work on the freight therein, is at most a mere licensee, to whom the railroad company owes no duty to block its cars for his safety, being liable only for active misconduct. Chicago, I. & L. R. Co. v. Martin, 31 Ind. App. 308, 65 N. E. 591.

In Baltimore & O. S. W. R. Co. v. Cox, 66 Ohio St. 276, 90 Am. St. Rep. 583, 64 N. E. 119, where one who had been occasionally employed by the company with the consent of the conductor boarded a caboose without intending to pay fare, and afterwards, at the invitation of the engineer, got upon the engine in order to talk with him about employment, the company was held to owe him no such duty of care as to render it liable for his death in consequence of the negligence of a brakeman in failing to close a switch. The court expressly held that the conductor had no authority to create the relation of carrier and passenger between the parties.

So, a boy eleven years old, who, with the knowledge of the conductor, goes upon the caboose of a freight train for the purpose of delivering lunches to the train employees, pursuant to an arrangement of two years standing, to which the company was not a

J. R. Hughes testified: "It was the general custom that they sold the fruit in them at the different stations. They sold oranges, lemons, and other fruits. They had been selling that way for two or three months. What I saw of people purchasing fruit was generally they went to the door and the fruit was handed out to them; but I had seen persons that I remember now go in the car and purchase the fruit. I saw it sold, besides Huntdale, at Poplar station and Relief,-the first, once; the last, twice. Part of the time they would ring the bell, or the conductor would throw up his hands and hollow, 'All aboard!' The train started out faster than I ever knew it to do before. I think I recollect that the conductor party, between his father and the conductor and other trainmen, is at best a mere licensee, to whom the company owes no duty to warn him of the danger to be apprehended from the "running out of the slack," which the conductor and the other trainmen know will occur. Wencker v. Missouri, K. & T. R. Co. 169 Mo. 592, 70 S. W. 145.

But in Day v. Brooklyn City R. Co. 12 Hun, 435 (Affirmed without opinion in 76 N. Y. 593), a street railway company was held liable for injuries to a boy thirteen years old, who, at the driver's request and in order to give the latter a drink of water, went upon the platform of a street car, and was injured in consequence of the negligence of the driver in starting up the horses as he was attempting to alight. The court reasoned that the driver had implied authority to invite persons on the car to supply him with food or drink, and that the acts of such persons were connected with the business of the company.

In Danbeck v. New Jersey Traction Co. 57 N. J. L. 463, 31 Atl. 1038, a street railway company was held liable to a boy ten years of age, who, at the invitation of the conductor, the latter desiring to send him for cigarettes, got upon the front platform of a car and was injured in consequence of the driver's striking the horses and starting them off at a high rate of speed. The decision, however, rests upon the duty of a street car company to prevent children, except under proper safeguards, from entering its cars,-highly dangerous machines placed in the public street; and the court declined to pass upon the question of liability if the plaintiff had been of mature years.