Thomas Bonham, doctor in philosophy and physic, brought an action of false imprisonment against Henry Atkins, George Turner, Thomas Moundford, and John Argent, doctors in physic, and John Taylor, and Wm. Bowden yeomen; for that the defendants, the 10 Nov. anno 4 Jacobi, did imprison him, and detain him in prison seven days. The defendants pleaded the letters patent of King H. 8. bearing date the 23 Septemb. anno 10 of his reign, by which he recites, [112]Quod cum Regii officii sui, &c. (quod vide ante p. 7.) But the case at bar doth principally consist on two clauses in the charter. The first, concessimus etiam eisdem presidenti, &c. (quod vide ante p. 10). The second clause is, which immediately follows in these words, præterea voluit, &c. (quod vide ante p. 10.) And afterwards, by act of Parliament made anno [113]14 H. 8. it was enacted, that the said corporation, and every grant, article, and other things in the said letters patent contained and specified, should be approved, granted, ratified, and confirmed, &c. in tam amplo & largo modo prout poterit acceptari, cogitari, et construi per easdem literas patentes. And further it was enacted, that the said six persons named in the said letters patent, as principal of the said college, should elect to them two other of the said college, who should be named electi, and that the said elects should chose one of them to be president, as by the said act appears: and further, they pleaded the act of [114]1 Mariæ, by which it is enacted, Quod quædam concessio, &c. And further it was enacted, “That whensoever the president of the college, or commonalty of the faculty of physic at London for the time being, or such as the said president and college shall yearly, according to the tenor and meaning of the said act, authorize to search, examine, correct, and punish all offenders and transgressors in the said faculty, &c. shall send or commit any such offender or offenders for his or their offence or disobedience, contrary to any article or clause contained in the said grant or act, to any ward, gaol, or prison, &c.” (see p. 26.) And further pleaded, that the said Thomas Bonham, 10 April, 1606, within London, against the form of the said letters patent, and the said acts, exercebat artem medicinæ, non admissus per literas præd’ presidentis & collegii sigillo eorum communi sigillat’ ubi revera præd’ Tho. Bonham fuit minus sufficiens ad artem medicinæ exercend’. By force of which, the said Thomas Bonham, 30 Aprilis 1606, was summoned in London by the censors or governors of the college, ad comparend’ coram præsiden’ & censor’ sive gubernatorib’ collegii præd’ at the college, &c. the 14th day of April next following, super præmissis examinand’. At which day the said Tho. Bonham came before the president and censors, and was examined by the censors de scientiâ suâ in facultate suâ in medicin’ administrand’. Et quia præd’ Thomas Bonham sic examinatus minus apte & insufficienter in præd’ arte medicinæ respondebat, & inventus fuit super examinationem præd’ per præed’ præsident’ censores minus insufficiens & inexpert’ ad artem medicinæ administrand’ ac pro eo quod præd’ Tho. Bonham multoties ante tunc examinatus, & interdictus per præsident’ & censores, de causis præd’ ad artem medicinæ administrand’ per unum mensem et amplius post talem interdictionem facultatem illam in Lond’ præd’ sine licentia, &c. ideo adtunc & ibid’ consideratum fuit per præd’ præsident’ censores, quod præd’ Thomas Bonham pro inobedientia et contempt’ suis præd’ amerciaretur to 100s. in proximis comitiis præd’ præsident’ et collegii persolvend’ et deinceps abstineret, &c. quousque inventus fuerit sufficiens, &c. sub pœna conjiciendi in carcerem si in præmissis delinqueret. And that the said T. Bonham, 20 Octo. 1606, within London did practice physic, and the same day he was summoned by the censors to appear before the president and them, 22 Octob. then next following, at which day Bonham made default: ideo consideratum fuit per præd’ censores, that for his disobedience and contempt he should be amerced to 10l. and that he should be arrested and committed to custody; and afterward, 7 Nov. 1606, the said T. Bonham, at their assembly came before the president and censors, and they asked him if he would satisfy the college for his disobedience and contempt, and submit himself to be examined, and obey the censure of the college, who answered, that he had practised and would practise physic within London, nulla a collegio petita venia, and that he would not submit himself to the president and censors, and affirmed, that the president and censors, had no authority over those who were doctors in the university; for which cause, the said four censors, sc. Dr. Turner, Dr. Moundford, Dr. Argent, and Dr. Dun, then being censors or governors, pro offensis et inobedientia præd’ adtunc & ib’ ordinaverunt & decreverunt, quod præd’ T. Bonham in carcerem mandaretur ib’ remansur’ quousque abinde per præsident’ & censores, seu gubernatores collegii præd’ pro tempore existen’ deliberaretur, and there then by their warrant in writing, under their common seal, did commit the plaintiff to the prison of the Compter of London, &c. absque ballio sive manucapt’ ad custagia & onera ipsius T. Bonham, donec præd’ T. Bonham per præcept’ præsiden’ & censor’ collegii præd’ sive successor’ suor’ liberatus esset; and Dr. Atkins then president, and the censors, and Bowden and Taylor as their servants and by the commandment of the said president and censors, did carry the plaintiff with the warrant, to the gaol, &c. which is the same imprisonment. The plaintiff replied and said, that by the said act of 14 H. 8. it was further enacted, “And where that in the dioceses of England, out of London, it is not like to find alway men able sufficiently to examine (after the statute) such as shall be admitted to exercise physic in them, that it may be enacted in this present Parliament, that no person from henceforth be suffered to exercise or practise physic through England, until such time that he be examined at London by the said president and three of the said elects, and to have from them letters testimonial of their approving and examination, except he be a graduate of Oxford or Cambridge, which have accomplished all things for his form without any grace;” and that the plaintiff, anno Dom. 1595, was a graduate, sc. a doctor in the university of Cambridge, and had accomplished all things concerning his degree for his form without [115]grace, by force whereof he had exercised and practised physic within the city of London until the defendants had imprisoned him, &c. upon which the defendant demurred in law. And this case was often argued by the Serjeants at bar in divers several terms; and now this term the case was argued by the Justices, and the effect of their arguments who argued against the plaintiff (which was divided into three parts) shall be first reported. The first was, whether a doctor of physic of the one university or the other, be by the letters patent, and by the body of the act of 14 H. 8. restrained from practising physic within the City of London, &c. The second was, if the exception in the said act of [116]14 H. 8. has excepted him or not. The third was, that his imprisonment was lawful for his said disobedience. And as to the first, they relied upon the letter of the grant, ratified by the said act of 14 H. 8. which is in the negative, sc. nemo in dictâ civitate, &c. exerceat dictam facultatem nisi ad hoc per prædict’ præsidentem & communitatem, &c. admissus sit, &c. And this proposition is a general negative, but [117]generale dictum est generaliter intelligendum; and nemo excludes all; and therefore a doctor of the one university or the other, is prohibited within this negative word nemo. And many cases were put where negative statutes shall be taken stricte et exclusive, which I do not think necessary to be recited here. Also they said, that the statute of [118]3 H. 8. c. 11. which in effect is repealed by this act of [119]14 H. 8. has a special proviso for the universities of Cambridge and Oxford, which being here left out, doth declare the intention of the makers of the act, that they did intend to include them within this general prohibition, nemo in dictâ civitate, &c. As to the second point they strongly held, that the said latter clause, “and where that in the dioceses of England, out of London,” &c. this clause, according to the words, extends only to places out of London, and so much the rather, because they provided for London before, nemo in dictâ civitate, &c. Also the makers of the act put a distinction betwixt those who shall be licensed to practise physic in London, &c. for they ought to have the admittance and allowance of the president and college in writing, under their common seal; but he who shall be allowed to practise physic throughout England, out of London, ought to be examined and admitted by the president and three of the elects, and so they said, that it was lately adjudged in the King’s Bench, in an information exhibited against the said Dr. Bonham for practising physic in London for divers months. As to the third point they said, that for his contempt and disobedience before them at their assembly in their college, they might well commit him to prison for they have authority by the letters patent and act of Parliament, and therefore for a contempt or misdemeanor before them they may commit him. Also the act of [120]1 M. has given them power to commit them for every offence or disob. contrary to any article or clause contained in the said grant or act. But there is an express negative article in the said grant, and ratif. by the act of 14 H. 8. Quod nemo in dictâ civitate, &c. exerceat, &c. and the defendants have pleaded, that the plaintiff had practised physic in London by the space of one month, &c. and therefore the act of 1 Mariæ has authorised them to imprison him in this case; wherefore they concluded against the plaintiff. But it was argued by Coke Chief Justice, Warburton and Daniel Justices of the Common Pleas, to the contrary. And Daniel Justice conceived, that a doctor of physic, of the one university or the other, &c. was not within the body of the act, and if he was within the body of the act, that he was excepted by the said latter clause; but Warburton argued against him for both the points; and the Chief Justice did not speak to those two points, because he and Warburton and Daniel agreed, that this action was clearly maintainable for two other points, and therefore in this action the Chief Justice omitted to speak to the said two points; but to two other points, he and the said two other Justices, Warburton and Daniel, did speak, sc. 1. Whether the censors have power, for the causes alledged in their bar, to fine and imprison the plaintiff. 2. Admitting that they have power to do it, if they had pursued their power. But the Chief Justice, before he argued the points in law, because much was said in commendation of the doctors of physic of the college in London, and somewhat (as he conceived) in derogation of the dignity of the doctors of the universities, he first attributed much to the doctors of the said college in London, and confessed that nothing was spoke in their commendation which was not due to their merits: but yet that no comparison was to be made between that private college, and either of the universities of Cambridge and Oxford, no more than between the father and his children, or between the fountain and the small rivers which descend from it; the university is alma [121]mater, from whose breasts those of that private college have sucked all their science and knowledge (which I acknowledge to be great and profound) but the law saith, erubescit lex filios castigare parentes: the university is the fountain, and that and the like private colleges are tanquam rivuli, which flow from the mountain, et melius est petere fontes quam sectari rivulos. Briefly, Academiæ [122]Cantabrigiæ & Oxoniæ sunt Athenæ nostræ nobilissimæ, regni soles, oculi & animæ regni, unde religio, humanitas, et doctrina in omnes regni partes uberrimè diffunduntur: but it is true, nunquam sufficiet copia laudatoris, quia nunquam deficiet materia laudis; and therefore these universities exceed and excel all private colleges, quantum inter virburna cupressus. And it was observed that K. H. 8. in his said letters patent and the K. and the Parliam. in the act of 14 H. 8. in making of a law concern. physicians, for the more safety and health of men, therein follow the order of a good physician (Rex [123]enim omn’ artes censetur habere in scrinio pect’ sui) for, medicina est duplex, removens, [124]& promovens; removens morbum, & promovens ad salutem: and therefore five manner of persons (who more hurt the body of man than the disease itself, one of which said of one of their patients, fugiens morbum incidit in medicum) are to be removed; 1. Improbi. 2. Avari, qui medicinam magis [125]avaritiæ suæ causa quam ullius bonæ conscientiæ fiducia profitentur. 3. Malitiosi. 4. Temerarii. 5. Inscii. And of the other part five manner of persons were to be promoted, as appears by the said act, sc. those who were, 1. profound. 2. sad. 3. discreet. 4. groundly learned. 5. profoundly studied. And it was well ordained, that the professors of physic should be profound, sad, discreet, &c. and not youths, who have no gravity and experience; for as one saith, [126]In juvene theologo conscientiæ detrimentum, in juvene legista bursæ detrimentum in juvene medico cœmiterii incrementum. And it ought to be presumed, every doctor of any of the universities to be within the statutes, sc. to be profound, sad, discreet, groundly learned, and profoundly studied, for none can there be master of arts (who is a doctor of philosophy) under the study of seven years, and cannot be doctor in physic under seven years more in the study of physic; and that is the reason that the plaintiff is named in the declaration doctor of Philosophy, and doctor of physic; quia oportet medicum esse philosophum, [127]ubi enim philosophus desinit, medicus incipit: as to the two points upon which the Chief Justice, Warburton and Daniel, gave judgment. 1. It was resolved by them, that the said censors had not power to commit the plaintiff for any of the causes mentioned in the bar; and the cause and reason thereof shortly was, that the said clause, which gives power to the said censors to fine and imprison, doth not extend to the said clause, sc. quod nemo in dictâ civitate, &c. exerceat dictam facultatem, &c. which prohibits every one from practising physic in London, &c. without licence from the president and college; but extends only to punish those who practise physic in London, pro delictis suis in non bene [128]exequendo, faciendo & utendo facultate medicinæ, by fine and imprisonment: so that the censors have not power by the letters patent, and the act, to fine and imprison any for practising physic in London, but only pro delictis suis in non bene exequendo, &c. sc. for ill, and not good use and practice of physic. And that was made manifest by five reasons, which were called vividæ rationes, because they had their vigour and life from the letters patent, and the act itself; and the best [129]expositor of all letters patent, and acts of Parliament, are the letters patent and the acts of Parliament themselves, by construction, and conferring [130]all the parts of them together, [131]Optima statuti interpretatrix est (omnibus particulis ejusdem inspectis) ipsum statutum; and [132]injustum est nisi tota lege inspecta una aliqua ejus particula proposita judicare vel respondere. The first reason was, that these two were two absolute, perfect, and distinct clauses, and as parallels, and therefore the one did not extend to the other; for the second begins, præterea voluit et concessit, &c. and the branch concerning fine and imprisonment is parcel of the 2d clause. 2. The first clause prohibiting the practice of physic, &c. comprehends four certainties: 1. Certainty of the thing prohibited, sc. practice of physic. 2. Certainty of the time, sc. practice for one month. 3. Certainty of penalty, sc. 5l. 4. Certainty in distribution, sc. one moiety to the King, and the other moiety to the college, and this penalty he who practises physic in London incurs, although he practises and uses physic well, and profitable for the body of man; and on this branch the information was exhibited in the King’s Bench. But the clause to punish delicta in non bene exequendo, &c. on which branch the case at bar stands, is altogether uncertain, for the hurt which may come thereby may be little or great, leve vel grave, excessive or small, &c. and therefore the King and the makers of the act could not, for an offence so uncertain, impose a certainty of the fine, or time of imprisonment, but leave it to the censors to punish such offences, secundum quantitatem delicti, which is included in these words, per fines, amerciamenta, imprisonamenta corporum suorum, et per alias vias rationibiles et congruas. 2. The harm which accrues by non bene exequendo, &c. concerns the body of man; and therefore it is reasonable that the offender should be punished in his body, sc. by imprisonment; but he who practises physic in London in a good manner, although he doth it without licence, yet it is not any prejudice to the body of man. 3. He who practises physic in Lon. doth not offend the statute by his practice, unless he practises it by the space of a month. But the clause of non bene exequendo, &c. doth not prescribe any certain time, but at what time soever he ministers physic non bene, &c. he shall be punished by the said second branch: and the law hath great reason in making this distinction, for divers nobles, [133]gentlemen, and others, come upon divers occasions to London, and when they are here they become subject to diseases, and thereupon they send for their physicians in the country, who know their bodies, and the cause of their diseases; now it was never the meaning of the act to bar any one of his own physician; and when he is here he may practise and minister to another by two or [134]three weeks, &c. without any forfeiture; for any one who practises physic bene, &c. in London (although he has not taken any degree in any of the universities) shall forfeit nothing, unless he practises it by the space of a month; and that was the reason that the time of a month was put in the act. 4. The censors cannot be [135]judges, ministers, and parties; judges to give sentence or judgment; ministers to make summons; and parties to have the moiety of the forfeiture, quia [136]aliquis non debet esse Judex in propriâ causâ, imo iniquum est aliquem suæ rei esse judicem; and one cannot be judge and attorney for any of the parties, Dyer 3 E. 6. 65. 38 E. 3. 15. 8 H. 6. 19. b. 20. a. 21 E. 4. 47. a. &c. And it appears in our books, that in many cases, the common law will [137]controul acts of Parliament, and sometimes adjudge them to be utterly void: for when an act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void: and therefore in 8 E. 3. 30. a. b. Thomas Tregor’s case on the statute of W. 2. c. 38. & artic’ super chartas, c. 9. Herle [138]saith, some statutes are made against law and right, which those who made them perceiving, would not put them in execution: the stat. of W. 2. [139]c. 21 gives a writ of Cessavit hæredi petenti super hæredem tenent’ & super eos quibus alienatum fuerit hujusmodi tenementum: and yet it is adjudged in 33 E. 3. [140]Cessavit 42. where the case was, two coparceners lords, and tenant by fealty and certain rent, one coparcener had issue and died, the aunt and the niece shall not join in a Cessavit, because the heir [141]shall not have a Cessavit for the cesser in the time of his ancestor, F. N. B. 209. F. and therewith agrees Plow. Com. 110. a. and the reason is, because in a Cessavit the tenant before judgment may render the arrearages and damages, &c. and retain his land, and that he cannot do when the heir brings a Cessavit for the cesser in the time of his ancestor, for the arrearages incurred in the life of the ancestor do not belong to the heir: and because it would be against common right and reason, the common law adjudges the said act of Parliament as to that point void. The statute of [142]Carlisle, made anno 35 E. 1. enacts, that the order of the Cistercians and Augustines, who have a convent and common seal, that the common seal shall be in the keeping of the Prior, who is under the Abbot, and four others of the most grave of the house, and that any deed sealed with the common seal, which is not so in keeping shall be void: and the opinion of the court (in an. 27 H. 6. Annuity 41.) was, that this statute was [143]void, for it is impertinent to be observed, for the seal being in their keeping, the Abbot cannot seal any thing with it, and when it is in the Abbot’s hands, it is out of their keeping ipso facto; and if the statute should be [144]observed, every common seal shall be defeated upon a simple surmise, which cannot be tried. Note reader the words of the said statute at Carlisle, anno 35 E. 1. (which is called Statutum religiosorum) are, Et insuper ordinavit dominus Rex & statuit, quod Abbates Cisterc’ & Præmonstraten’ ordin’ religiosorum, &c. de cætero habeant sigillum commune, et illud in custodia Prioris monasterii seu domus, et quatuor de dignioribus et discretioribus ejusdem loci conventus sub privato sigillo Abbatis ipsius loci custod’ depo, &c. Et si forsan aliqua scripta obligationum, donationum, emptionum, venditionum, alienationum, seu aliorum quorumcunque, contractuum alio sigillo quam tali sigillo, communi sicut præmittit’ custodit inveniant’ a modo sigillat’, pro nullo penitus habeantur omnique careant firmitate. So the statute of 1 E. 6. c. 14. gives chauntries, &c. to the King, saving to the donor, &c. all such rents, services, &c. and the common law controuls it, and adjudges it void as to services, and the donor shall have the rent, as a rentseck, distrainable of common right, for it would be against common right and reason that the [145]King should hold of any, or do service to any of his subjects, 14 Eliz. Dyer 313. and so it was adjudged Mich. 16 & 17 Eliz. in Com’ Banco in [146]Strowd’s case. So if any act of Parliament gives to any to hold, or to have conusans of all manner of pleas arising before him within his manor of D. yet he shall hold no plea, to which he himself is party; for, as hath been said, iniquum est aliquem suæ rei esse judicem. 5. If he should forfeit 5l. for one moiety by the first clause, and should be punished for practising at any time by the second clause, two absurdities should follow, 1. That one should be punished not only twice but many times for one and the same offence. And the divine saith, Quod [147]Deus non agit bis in idipsum; and the law saith, Nemo debet bis puniri pro uno delicto. 2. It would be absurd, by the first clause, to punish practising for a month, and not for a lesser time, and by the second to punish practising not only for a day, but at any time, so he shall be punished by the first branch for one month by the forfeit of 5l. and by the second by fine and imprisonment, without limitation for every time of the month in which he practises physic. [148]And all these reasons were proved by two grounds, or maxims in law; 1. [149]Generalis clausula non porrigitur ad ea quæ specialiter sunt comprehensa: and the case between Carter and [150]Ringstead, Hil. 34 Eliz. Rot. 120. in Communi Banco, was cited to this purpose, where the case in effect was, that A. seized of the manor of Staple in Odiham in the county of Southampton in fee, and also of other lands in Odiham aforesaid in fee, suffered a common recovery of all and declared the use by indenture, that the recoverer should stand seised of all the lands and tenements in Odiham, to the use of A. and his wife, and to the heirs of his body begotten; and further, that the recoverer should stand seised to the use of him, and to the heirs of his body, and died, and the wife survived, and entered into the said manor by force of the said general words; but it was adjudged, that they did not extend to the said manor which was specially named: and if it be so in a deed, a fortiori, it shall be so in an act of Parliament, which (as a will) is to be expounded according to the intention of the makers. 2. [151]Verba posteriora propter certitudinem addita ad priora quæ certitudine indigent sunt referenda. 6 E. [152]3. 12. a. b. Sir Adam de Clydrow Knight, brought a Præcipe quod reddat against John de Clydrow, and the writ was, Quod juste, &c. reddat manerium de Wicomb et duas carucatas terræ cum pertinentiis in Clydrow, in that case the town of Clydrow shall not relate to the manor, quia non indiget, for a manor may be demanded without mentioning that it lies in any town, but cum pertinentiis, although it comes after the town, shall relate to the manor, quia indiget. Vide 3 E. 4. 10. the like case. But it was objected, that where by the second clause it was granted, that the censors should have supervisum et scrutinium, correctionem et gubernationem omnium et singulorum medicorum, &c. they had power to fine and imprison. To that it was answered, 1. That that is but part of the sentence, for by the entire sentence it appears in what manner they shall have power to punish, for the words are, ac punitionem eorum pro delictis suis in non bene exequendo, faciendo, vel utendo illa facultate; so that without question all their power to correct and punish the physicians by this clause is only limited to these three cases, sc. in non bene exequendo, faciendo, vel utendo, &c. Also this word punitionem, is limited and restrained by these words, ita quod punitio eorundem medicorum, &c. sic in præmissis delinquentium, &c. which words, sic in præmissis delinquentium, limit the former words in the first part of this sentence, ac punitionem eorum pro delictis suis in non bene exequendo, &c. 2. it would be absurd, that in one and the same sentence the makers of the act should give them a general power to punish without limitation; and a special manner how they shall punish, in one and the same sentence. 3dly, Hil. 38 Eliz. in a Quo warranto against the Mayor and Commonalty of London, it was held, that where a grant is made to the Mayor and Commonalty, that the Mayor for the time being should have [153]plenum et integrum scrutinium, gubernationem, et correctionem omnium et singulorum mysteriorum, &c. without granting them any court, in which should be legal proceedings, that it is good for search, whereby a discovery may be made of offences and defects, which may be punished by the law in any court, but it doth not give, nor can give them any irregular or absolute power to correct or punish any of the subjects of the kingdom at their pleasure. 2. It was objected, that it is incident to every court created by letters patent, or act of Parliament, and other courts of record, to punish any misdemeanor done in court, in disturbance or contempt of the court, by imprisonment. To which it was answered, that neither the letters patent nor the act of Parliament has granted them any court, but only an [154]authority, which they ought to pursue, as it shall be afterwards said. 2. If any court had been granted them, they could not by any incident authority implicitè granted them, for any misdemeanor done in court, commit him to prison without bail or mainprize, until he should be by the commandment of the president and censors, or their successors, delivered, as the censors have done in this case. 3. There was not any such misdemeanor for which any court might imprison him, for he only shewed his case to them, which, he was advised by his counsel, he might justify, which is not any offence worthy of imprisonment. The second point was, admitting that the censors had power by the act, if they had pursued their authority, or not? And it was resolved by the Chief Justice, Warburton and Daniel, that they had not pursued it for six reasons. 1. By the act, the censors only have power to impose a fine, or amerciament; and the president and censors imposed the amerciament of 5l. upon the plaintiff. 2. The plaintiff was summoned to appear coram presidente et censoribus, &c. et non comparuit, and therefore he was fined 10l. whereas the president had no authority in that case. 3. The fines or amerciaments to be imposed by them, by force of the act, do not belong to them, but to the King, for the King had not granted the fines or amerciaments to them, and yet the fine is appointed to be paid to them, in proximis comitiis, and they have imprisoned the plaintiff for non-payment thereof. 4. They ought to have committed the plaintiff presently, by construction of law, although that no time be limited in the act, as in the statute of W. 2. cap. 11 [155]De servientibus, ballivis, &. qui ad compotum reddend’ tenentur, &c. cum dom’ hujusmodi servientium dederit eis auditores compoti, et contingat ipsos in arrearagiis super compotum suum omnibus allocatis et allocandis, arrestentur corpora eorum, et per testimonium auditorum ejusdem compoti mittantur et liberentur proximæ gaolæ domini Regis in partibus illis, etc. In that case, although no time be limited when the accomptant shall be imprisoned, yet it ought to be done [156]presently, as it is held in 27 H. 6. 8. a. and the reason thereof is given in Fogassa’s case, Plowd. Com. 17. b. that the generality of the time shall be restrained to the present time, for the benefit of him upon whom the pain shall be inflicted, and therewith agrees Plow. Com. 206. b. in Stradling’s case. And a Justice [157]of Peace upon view of the force, ought to commit the offender presently. 5. Forasmuch as the censors had their authority by the letters patent and act of Parliament, which are high matters of record, their proceedings ought not to be by parol, & eo potius, because they claim authority to fine and imprison, and therefore, if judgment be given against one in the Common Pleas in a writ of [158]recaption, he shall be fined and imprisoned, but if the writ be vicontiel in the county, there he shall not be fined nor imprisoned, because a writ of the court is not of record, F. N. B. in Recaption; so in F. N. B. 47. a. a plea of trespass vi et armis doth not lie in the county court, hundred court, &c. for they cannot make a record of fine and imprisonment; and regularly they who cannot make [159]a record, cannot fine and imprison. And therewith agrees 27 H. 6. 8. Book of Entries, tit. Account, fol. —. The auditors make a record when they commit the defendant to prison; a Justice of Peace upon view of the force may commit, but he ought to make a record of it. 6. Forasmuch as the act of 14 H. 8. has given power to imprison till he shall be delivered by the president and the censors, or their successors, reason requires that it should be taken strictly, for the liberty of the subject (as they pretend) is at their pleasure: and this is well proved by a judgment in Parliament in this very case; for when this act of 14 H. 8. had given the censors power to imprison, yet it was taken so literally, that the gaoler was not bound to receive such as they should commit to him, and the reason thereof was, because they had authority to do it without any court: and thereupon the statute of 1 Ma. [160]cap 9. was made, that the gaoler should receive them upon a penalty, and yet none can commit any to prison, unless the gaoler receives him: but the first act, for the cause aforesaid, was taken so literally, that no necessary incident was implied. And where it was objected, that this very act of 1 Mar. cap. 9. has enlarged the power of the censors, and they urged it upon the words of the act; it was clearly resolved, that the said act of 1. Mar. did not enlarge the power of the censors to fine or imprison any person for any cause for which he ought not to be fined and imprisoned by the said act of [161]14. H. 8. For the words of the act of Queen Mary are, “according to the tenor and meaning of the said act:” also “shall send or commit any offender or offenders for his or their offence or disobedience, contrary to any article or clause contained in the said grant or act, to any ward, gaol, &c.” But in this case Bonham has not done any thing which appears within this record, contrary to any article or clause contained within the grant or act of 14 H. 8. Also the gaoler who refuses shall forfeit the double value of the fines and amerciaments that any offender or disobedient shall be assessed to pay; which proves that none shall be received by any gaoler by force of the act of 14 H. 8. but he who may be lawfully fined or amerced by the act of 14 H. 8. and that was not Bonham, as by the reasons and causes aforesaid appears. And admitting that the replication be not material, and the defendants have demurred upon it; yet forasmuch as the defendants have confessed in the bar, that they have imprisoned the plaintiff without cause, the plaintiff shall have judgment: and the difference is, when the plaintiff [162]replies, and by his replication it appears that he has no cause of action, there he shall never have judgment: but when the [163]bar is sufficient in matter, or amounts (as the case is) to a confession of the point of the action, and the plaintiff replies, and shews the truth of the matter to enforce his case, and in judgment of law it is not material, yet the plaintiff shall have judgment, for it is true that sometimes the declaration shall be made good by the bar, and sometimes the bar by the replication, and sometimes the replication by the rejoinder, &c. but the difference is, when the declaration wants time, place, or other [164]circumstance, it may be made good by the bar, so of the bar, replication, &c. as appears in 18 E. 4. 16. b. But when the declaration wants substance, no bar can make it good; so of the bar, replication, &c. and therewith agrees 6. E. 4. 2. a good case, and nota there dictum Coke. Vide 18 E. 3. 34. b. 44 E. 3. 7, a. 12 E. 4. 6. 6 H. 7. 10. 7 H. 7. 3. 11 H. 4. 24. &c. But when the plaintiff makes replication, sur-rejoinder, &c. and thereby it appears, that upon the [165]whole record the pl. has no cause of action, he shall never have judgment, although the bar or rejoinder, &c. be insufficient in matter; for the court ought to judge upon the whole record, and every one shall be intended to make the best of his own case. Vide [166]Ridgeway’s case, in the Third Part of my Reports 52. b. and so these differences were resolved and adjudged between [167]Kendal and Helyer, Mich. 25 & 26 Eliz. in the K.’s Bench, and Mich. 29 & 30 Eliz. in the same court, between [168]Gallys and Burbry. And Coke Ch. Just. in the conclusion of his argument observed seven things for the better direction of the president and commonalty of the said college for the future. 1. That none can be punished for practising physic in London, but by forfeiture of 5l. by the month, which is to be recovered by the law. 2. If any practise physic there for a less time than a month, that he shall forfeit nothing. 3. If any person prohibited by the statute offends in non bene exeq’ &c. they may punish him according to the stat. within the month. 4. Those who they may commit to prison by the stat. ought to be commit. [169]presently. 5. The fines which they set, according to the statute, belong to the King. 6. They cannot impose a fine, or imprisonment without a record of it. 7. The cause for which they impose fine and imprisonment ought to be certain, for it is [170]traversable: for although they have letters patent, and an act of Parliament, yet because the party grieved has no other remedy, neither by writ of error, or otherwise, and they are not made Judges, nor a court given them, but have an [171]authority only to do it, the cause of their commitment is traversable in an action of false imprisonment brought against them; as upon the statute of [172]bankrupts, their warrant is under the great seal, and by act of Parliament; yet because the party grieved has no other remedy, if the commissioners do not pursue the act and their commission, he shall traverse, that he was not a bankrupt, although the commissioners affirm him to be one; as this term it was resolved in this court, in trespass between Cutt [173]and Delabarre, where the issue was, whether Will. Cheyney was a bankrupt or not, who was found by the commissioners to be a bankrupt; a fortiori in the case at bar, the cause of the imprisonment is traversable; for otherwise the party grieved may be perpetually, without just cause, imprisoned by them; but the record of a force made by a Justice of Peace is not traversable, because he doth it as Judge, by the statutes of [174]15 R. 2. and 8 H. 6. and so there is a difference when one makes a record as a Judge, and when he doth a thing by special authority, (as they did in the case at bar) and not as a Judge. And afterwards, for the said two last points, judgment was given for the plaintiff, nullo contradicente, as to them. And I acquainted Sir Thomas Fleming, Chief Justice of the King’s Bench, with this judgment, and with the reasons and causes of it, and he well approved of the judgment which we had given: and this is the first judgment on the said branch concerning fine and imprisonment which has been given since the making of the said charter and acts of Parliament, and therefore I thought it worthy to be reported and published.