The opinion of the court was delivered by

This certiorari brings up a judgment of the Sussex Common Pleas, on appeal from a justice, rendered in favor of the plaintiff below. The action was instituted to recover for medical services.

The first four reasons alleged for reversal are, in effect, that when the summons was issued by the justice a prior suit for the same cause of action, between the same parties, was pending before another justice.

This fact was proved in the Common Pleas, but it was then proper'to disregard it, unless it had been duly presented before the justice. Clifford v. Frankford, 8 Vroom 152. The only evidence we have touching this latter point is found in the justice’s docket, which states that, on the return-day, “the defendant made a motion for a non-suit that the summons was served illegally on the day that a suit was pending before John T. Stewart, Esq.” This is not enough. It should appear before us that the motion was based on due proof of the fact alleged. In the higher courts the fact would be of no avail unless pleaded, in abatement; in courts for the trial of small causes it should also be ignored unless presented and proved in time. Hixon v. Schooley, 2 Dutcher 461.

The next eleven reasons set up a denial of the plaintiff’s right to recover, on account of his non-compliance with the “Act to regulate the practice of medicine and surgery,” approved March 12th, 1880. Famph. L.,p. 296.

But we think that act was correctly disposed of below by the court’s holding that it did not impair the plaintiff’s right to recover for services rendered before June 1st, 1880, when it took effect. The statute does not evince any design that it should be retroactive, and, if it did, such design could not be *490permitted to destroy the obligation of previous contracts or the remedies for their enforcement.

The defendant, however, insists that “An act to incorporate medical societies for the purpose of regulating the practice of physic and surgery in this state,” approved January 28th, 1830, (.Pamph. L., p. 19,) is still in force, and bars the plaintiff’s right to recover, because he has no diploma from the Medical Society of New Jersey, incorporated by that act. This contention is made in face of the fourth section of “An act to reorganize the Medical Society of New Jersey,” approved March 14th, 1864, [Pamph. L., p. 250,) which purports to repeal the act of 1830. The defendant claims that this feature of the act of 1864 is unconstitutional because it is not fairly embraced in the object expressed by the title.

We think, however, that so far as the state society was concerned, the repeal was clearly valid. An act to re-organize that society might properly embrace any change in its functions which the legislature was competent to make, and such change eould legally be effected by repealing its former powers and conferring new ones. This is what was done, and it seems to us unobjectionable.

The remaining reasons relate to the action of the Common Pleas in applying payments made after June 1st, 1880, to services rendered after that date.

This was an error. Those payments were sometimes in excess. of the charges which preceded them after the day mentioned, and therefore could not all have been intended to satisfy those charges. They were evidently made on the preexisting account, and there was nothing to indicate that they were not to follow the usual rule and be applied to the earliest items. For this error the judgment must be reversed.

Let the record be remitted to the Common Pleas for a new trial there. Steamboat Co. v. Flanagan, 12 Vroom 115.