Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	defendant_n	king_n	plaintiff_n	1,446	5	10.0346	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A50695	A collection of acts of Parliament, charters, trials at law, and judges opinion concerning those grants to the Colledge of Physicians London, taken from the originals, law-books, and annals, commanded by Sir Edward Alston Kt., president, and the elects and censors / made by Christopher Merret ...	Merret, Christopher, 1614-1695.	1660 (1660)	Wing M1836; ESTC R18709	67,476	139

and for their Successors for ever that they may choose four every year that shall have the overseeing and searching correcting and governing of all in the said City being Physicians using the faculty of Medicines in the said City and other Physicians abroad whatsoever using the faculty of Physicking by any means frequenting and using within the City or Suburbs thereof or within seven miles in compass of the said City and of punishing them for the said offences in not well executing making and using that And that the punishment of those Physicians using the said faculty so in the premises offending by Fines Amercements Imprisonments of their Bodies and by other reasonable and fitting waies shall be executed Note the preamble of these Letters Patents is Quod cum ●●regii officii nostri munus arbitremur ditionis nostrae Hominum felicitati omniratione Consulere Id autem vel inprimis fore si improborum conaminibus tempestive occurramus apprime necessarium fore deximus improborum quoque hominum qui medicinam magis avaritiae suae causa quam ullius bonae conscientiae fiducia profitebuntur unde Rudi credulae plebi plurima incommoda oriuntur audaciam compescere And that the Plaintiff practised in London without admission of the Colledge and being Summoned to appear at the Colledge and examined if he would give satisfaction to the Colledge according to the said Letters Patents and Statute he answered that he had received his decree to be Doctor of Physick by the University of Cambridge and was allowed by the University to practise and confest that he had practised within the said City and as he conceived it was lawful for him to practise there that upon that the said President and Commonalty fined him to a hundred shillings and for not paying that and his other contempt committed him to prison to which the Plaintiff replied as aforesaid and upon this demurrer was joyned And Harris for the Defendant saith that this hath Serjeant Harris the younger been at another time adjudged in the Kings Bench where the said Colledge imposed a Fine of five pound upon a Doctor of Physick which practised in London without their admission and for the non payment of that brought an Action of Debt and adjudged that it lay well and that the Statute of 32. H. 8. extends as well to Graduats as to others for it is general and Graduats are not excepted in the Statute nor in the Letters Patents and all the mischiefs intended to be redressed by this are not expressed in that and the Statute shall not be intended to punish Impostors only but all other which practise without examination and admittance for two things are necessary to Physicians that is learning and experience and upon that there is the proverb Experto crede Roberto And the Statute intends that none shall practise here but those which are most learned and expert more then ordinary And for that the Statute provides that none shall practise here without allowance and examination by the Bishop of London and the Dean of Pauls and four learned Doctors But in other places the examination is referred only to the Bishop of the Diocess and the reason of the difference is for that that London is the heart of the Kingdome And here the King and his Court the Magistrates and Judges of the Law and other Magistrates are resident and with this agreed the government of other well governed Cities in Italy and other Nations as it appears by the preamble of the said Letters Patents and it appears by the Statute that this was not intended to extend to Impostors only for that the word Impostor is not mentioned in the Statute And the Statute provides that they shall be punished as well for doing and using as for ill using And also it is provided that the Statute of 1. Marie 1. Parliament chap. 9. That the Guardians Goalers or Keepers of the Wards Goals and Prisons within the City and Precinct of that shall receive unto his Prison all such person and persons so offending which are sent or committed to them and those safely shall keep without Bayl till the party so committed shall be discharged by the said President or other person by the said Colledge to that authorised by which it appears that the Goalers Keepers of Prisons have power to retain such which are committed That then the President shall have power to commit for things Implyed are as strong as things Expressed as it appears by the Com. Stradling and Morgans Case and also in the Earl of Leicesters Case where it is agreed that Joynture before Coverture cannot be waved and this is implyed within the Statute of 27. H. 8. And so the Statute of 2. Ed. 6. Provides that after seven years Tythes shall be paid by which it is Collected by Implication that during seven years Tythes shall not be paid and so he prayed Judgement for the Defendants Dodridge Serjeant of the King for the Plaintiff said that the Statute of ●4 H. 8. chap. 5. and the Letters Patents give power to four Censors to punish for ill executing doing and using the faculty of a Physician and the Plantiff was not charged for ill executing of it doing or using But it is averred where Revera the Plaintiff was nothing sufficient to exercise the said Art and being examined less apt to answer and thereupon they forbade him and being sent for and not appearing was amerced five pound and order that he should be Arrested and being Arrested upon his appearance being examined if he would submit himself to the said Colledge he answered and confessed that he had practised within the said City being a Doctor of Physick as aforesaid as well to him it was lawful and that he would practise here again for which he was committed to Prison So that he was amerced for his contempt in the using of the said Art and committed to Prison for his answer upon his examination And he conceived that there are two questions considerable First if the Colledge may restrain a Doctor of Physick of his practise in London Secondly admitting that they may then if these are the causes for which they may commit by their Letters Patents the first reason is drawn from the Letters Patents and the said Statutes in which he said that the intent of the King was the Walter end of his work And this intent shall be expounded for three reasons apparent in the words contained in the Grant First Intempestive conatibus occurrere Secondly Improborum Hominum qui medicinam magis avaritiae suae causa quam ullius bonae Conscientiae fiducia profitebantur audaciam Compescere Thirdly which would invite learned men to practise here and for that would quod collegium 〈◊〉 Doctorum graviorum virorum qui medicinament in urbe nostra Londino suburbibus infra septem millia passuum in urbe quaquaversus publice Exerceant institui volumus imperanus And further he said that

and knowledge c. or Drink for the Stone and Strangury in any part of the Realm without suit vexation c. any Act or Statute to the contrary notwithstanding And that he having skill in the nature of Herbs Roots and Waters by speculation and practise applied to persons requiring his skill Herbs Ointments Baths Drinks c. to their Sores Uncomes Wounds and for the Stone and Strangury or Agues and to all other Diseases in the said Statute mentioned prout ei benelicuit Et quoad aliquam aliam practisationem seu facultatem medicinae aliter vel alio modo quod non est culpabilis Et de hoc ponit c. And makes his averment Et hoc paratus est verificare The Plaintiff replies and shews the Statute of primo Mariae capite nono which confirms the Charter of decino Henrici octavi and the Statute of decimo quarto Henrici octavi and appoints that it shall be in force notwithstanding any Statute or Ordinance to the contrary And upon this it was demurred because it is a departure for it intitles him by another Act viz. the Statute of primo Mariae which is not mentioned in the Count and therefore 't was assigned for Error But all the Court here conceived That it is no departure Because it fortifies the Count and is as to revive the Statute of decimo quarto Henrici octavi if it were repealed in this particular by the Statute of tricesimo quarto Henrici octavi And for that the Case of Woodhead was shewn to the Court Mich. 42. 43. Eliz. rot 397. where the President of the Colledge of All-Souls bringing an Action upon the Case for taking Toll in and shews a Charter of vicesimo sexto Henrici sexti to be discharged of Toll the Defendant pleaded the Act of Resumption of Liberties granted by Henry the sixth made and so the Liberty gone The Plaintiff pleaded a Reviver of them by the Statute of quarto Henrici septimi And it was held to be no departure but as it were a confession and avoiding The third and principal Error assigned was if the Statute of tricesimo quarto Henrici octavi be not repealed by the Statute of primo Mariae and if not Whether the Defendant hath made a sufficient Jusification And quoad that Whether the said Statute be repealed the Court was not resolved But Richardson Chief Justice conceived it was repealed by primo Mariae by the general words any Act or Statute to the contrary of the Act of decimo quarto Henrici octavi notwithstanding But I conceived that the Act of tricesimo quarto Henrici octavi not mentioning the Statute of decimo quarto Henrici octavi was for Physicians but the part of the Act of trices quar Henrici octavi was concerning Chirurgeons and their applying outward Medicines to outward Sores and Diseases And Drinks only for the Stone Strangullion and Ague That Statute was never intended to be taken away by the Act of primo Mariae But to this point Jones and Woitlock would not deliver their Opinions But admitting the Statute of tricesimo quarto Henrici octavi be in force yet they all resolved the Defendants Plea was naught and not warranted by the Statute for he pleads That he applied and ministred Medicines Plaisters Drinks ulceribus Morbis Maladiis Calculo Strangurio Febribus aliis in Statuto mentionatis so he leaves out the principal word in the Statute Externis And doth not refer and shew That he ministred potions for the Stone Strangullion or Ague as the Statute appoints to these three Diseases only and to no other And by his Plea his Potions may be ministred to any other sickness wherefore they all held his Plea was nought for this cause and that Judgment was well given against him Whereupon Judgment was affirmed Termino Trinitatis anno quarto Jacobi Regis in Banco Regis Crokes Reports the Second Part. Doctor Langhton versus Gardener DEbt upon the Statute 14. H. 8. cap. 5. by the 4 Plaintiff as President of the Colledge of Physicians in London and of the Corporation of Physicians there For that the Defendant used the Art of Physick in London without Licence from the Colledge there against the Statute and their Charter For which he demanded 5 l. for every moneth being the penalty given by the Statute The Defendant pleaded the Statute of 34. H. 8. which enables every one to practise Physick or Chirurgery being skilful therein notwithstanding any Act to the contrary The Plaintiff replies and shewes the Statute primo Mar. cap. 9. which confirms their Charter and every Article thereof to stand in force Any Act Statute Law or Custome to the contrary notwithstanding Hereupon the Defendant demurred First because this general clause in this Law doth not restrain the Statute of 34. H. 8. Secondly that this pleading is a departure For it ought to have been shewn before Stephens argued for the Plaintiff First That the Act of 34. H. 8. is repealed by the Statute of of Prim. Mar. Quoad the Colledge of Physicians in London as fully as if it had been by express words recited and repealed For when it confirms the Charter of 14. H. 8. and appoints that it and every part thereof shall stand and be available The Statute of 34. H. 8. cannot stand with it Quia leges posteriores leges priores contrarias abrogant 4. Ed. 4. Porters Case Co. 1. fol 25. Secondly That it is not any departure Because there is not any new matter but matter pleaded in reviving of the former or fortification thereof And a Record was shewn Mich. 10. 11. Eliz. betwixt Bomelins ..... where the Record was in the same manner as this Record is and there the Plaintiff had Judgement Wherefore c. And there being none on the Defendants part to argue The Court upon hearing of the Record gave rule that Judgment should be entred for the Plaintiff unless c. Termino Paschae anno quinto Jacobi Regis in Banco Regis Doctor Atkins versus Gardener Scir fac Upon a Judgment in Debt upon the ●● Statute 14. H. 8. by Doctor Langhton President of the Colledge of Physicians in London who died before execution had and thereupon the successor brought a Scir fac to have execution It was thereupon demurred because the Scir fac ought to be brought by the Executor or Administrator of him who recovered and not by the successor But upon hearing of the Record without argument the Court held that the successor might well maintain the Action For the Suit is given to the Colledge by a private Statute And the Suite is to be brought by the President for the time being And he having recovered in right of the Corporation the Law shall transfer that duty to the successor of him who recovered and not to his Executors The Action being brought for that he practised Physick in London without Licence of the Colledge of Physicians against the

there are three sorts of men which meddle with the Body of a man First is the learned man which reads all Books extant and his knowledge is speculative and by that he knew the nature of all simples And the second is practive the knowledge of which is only his experience he may give Probatum est But the ignorance of the cause of the disease and the nature of the things which he applies for the cure of that And the third is an Impostor which takes upon him the knowledge which he hath not and every of them the Colledge may punish for Male utendo faciendo vel exequendo by what they will And this was not the first care which was had for in the 9. H. 5. was a private Act made for Physicians by which there is great regard to them which are learned and educated in the University And for that the Act provides that they shall not be prejudicial to any of the Universities of Oxford and Cambridge and with this agrees 3. H. 8. 11. and the priviledges of them and the Docti graves homines mentioned in the Letters Patents are the learned men mentioned in the Act for the Statute provides that they shall punish according to these Statutes and late edicts And by the former Lawes the Universities that their priviledges were excepted and by their former Statutes the Letters Patents ought to be directed for it is referred them Also the Statutes of this Realm have alwaies had great respect to the Graduats of the Universities and it is not without cause for Sudavit Alsit and hath no other reward but this degree which is Doctor and for that the Statute of 21. H. 8. prefers Graduates and provides that Doctors of Divinity or Bachelors shall be capable of two Benefices with Cure without dispensation And so 13. Eliz. provides that none shall be presented to a Benefice above the value of thirty pound per annum if he be not a Doctor or Bachelor of Divinity And to the objection that none shall practise in London or seven miles circuit of it without license that this clause shall be expounded according to the matter and to that he agreed for the other branches of the Statute are made to cherish grave and learned men and for that it shall not be intended that this branch was made for the punishment of those but of others which the Statute intended to punish And to the second objection that every Doctor is not the learned and grave man intended within the Statute for the knowledge of many of them is only speculative without practise to that he answered that all their Study is practise and that if they have no practise of themselves then they attend upon others which practise and apply themselves to know the nature of Simples And to the third objection that in London ought to be choice men for the Statute appoints that they shall be examined by the Bishop and Dean and four others at least and for that there is a more strict course for them then in other places to that it is agreed But he said that in the University there is a more strict course then this for here he ought to be publickly approved by many after he hath been examined and answered in the Schooles to divers questions and allowed by the Congregation-house And 35. H. 6. 55. Doctor is no addition but a degree quia gradatim progressione Doctrinae provenit to that and that Doctor is teacher and that he was first taught by others as Scholars afterwards he is Master and Doctor dicitur à docendo quia docere permittitur and they are called Masters of their faculty and that the Original of Doctor came of the Synagogue of Jewes where there were Doctors of Law and it appears that they had their ceremonies in time of H. 1. And when a man brings with him the Ensign of Doctrine there is no reason that he should be examined again for then if they will not allow of him he shall not be allowed though he be a learned and grave man and it was not the intent of the King to make a Monopoly of this practise And to the second point that he propounded it seems that the Justification is not good which is Quia non comparuit upon Summons he was amerced and ordered that he shall be arrested and being arrested being examined if he would submit himself to the Colledge he answered that he was a Doctor and had practised and would practise within the said City as he conceived he might lawfully do and for that shewing of this case he was committed to prison and he conceived two things upon the Charter First That it doth not inhibit a Doctor to practise but punisheth him for ill using exercising and making and may imprison the Emperick and Impostor and so prayed Judgement for the Plaintiff and after in Hillary Term in the same year this case was argued by all the Justices of the Common Bench and at two several daies and the first day it was argued by Foster Daniell and Warburton Justices at whose Arguments I was not present but Foster argued against the Plaintiff and Daniell and Warburton with him and that the Action of false imprisonment was well maintainable And the second day the same case was argued again by Walmesley Justice and Coke chief Justice and Walmesley argued as followeth that is that the Walmesley Statute of 3. H. 8. was in the negative that no person within the City of London or seven miles of that take upon him to exercise or occupy as Physician or Chirurgeon c. And he doth not know in any case where the words of the Statute are negative that they admit any Interpretation against that but one only and that is the Statute of Marlebridge chapter 4. Which provides that no Lord shall distrain in one County and the beasts distrained drive into another County in which case though that the words are negative yet if the Lord distrain in one Country he may drive his beasts to his Mannor in another County of which the Lands in which the distress was taken were held but it is equity and reason in this case that the Statute should admit such exception for it is not of malice but for that that the Beasts may remain within his Fee but in the principal case there is not the like reason nor Equity And also the King H. 8. in his Letters Patents recites as followeth that is Cum Regii officii nostri munus arbitremur ditionis nostrae hominum selicitati omni ratione consulere id autem vel imprimis fore si Improborum conatibus tempestive occurremus apprime necessarium duximus improborum quoque hominum qui medicinam magis avaritiae suae causa quam ullius bonae conscientiae fiducia profitebantur c. By which it appears that it is the office of a King to survey his Subjects and he is as a Physician to cure

sealed with the Common Seal which is not so in keeping shall be void and the opinion of the Court that this is a void Statute for it is imperttinent to be observed being the Seal in their keeping the Abbot cannot Seal any thing with it and when that it is in the hands of the Abbot it is out of their keeping ipsofacto And if the Statute shall be observed every common Seal shall be defeated by one simple surmise which cannot be tried and for that the Statute was adjudged void and repugnant And so the Statute of Glocester which gives Cessavit after Cesser by two years to be brought by the Lessor himself was a good and equitable Statute But the Statute of Westminster 2. chap. 3. which gives Cessavit to the Heir for Cesser in time of his Ancester and that that was judged an unreasonable Statute in 33. Ed. 3. for that that the Heir cannot have the arrearages due in the time of his Father according to the Statute of Glocester and for that it shall be void And also the Physicians of the Colledge could not punish any by Fine and also by Imprisonment for no man ought to be twice punished for one offence and the Statute of 1. Mariae doth not give any power to them to commit for any offence which was no offence within the first Statutes for that he ought not to be committed by the said Statute of 1. Mariae But admitting that they may commit yet they have mistaken it for they demand the whole hundred shillings and one half of that belongs to the King And also they ought to commit him forthwith as well as Auditors which have Authority by Parliament to commit him which is found in arrearages But if he do not commit him forthwith they cannot commit him afterward as it appears by 27. H. 6. 9. So two Justices of the Peace may view a force and make a Record of that and commit the offenders to Prison but this ought to be in Flagranti Oriente and if he do not commit those immediately upon the view he cannot commit them afterwards and the Physicians have no Court but if they have yet they ought to make a Record of their commitment for so was every Court of Justice But they have not made any Record of that And Auditors and Justices of Peace ought to make Records as it appears by the Book of Entries So that admitting that they may commit yet they ought to do it forthwith but in this case they cannot commit till the party shall be delivered by them for this is against Law and Justice and no Subject may do it but till he be delivered by due course of Law for the commitment is not absolute but the cause of that is traversable and for that ought to justifie for special cause for if the Bishop returns that he refuses a Clerk for that he is Schismaticus Inveteratus this is not good but they ought to return the particular matter So that the Court may adjudge of that Though it be a matter of Divinity and out of their Science yet they by conference may be informed of it and so of Physick And they cannot make any new Lawes but such only which are for the better government of the old and also he said plainly that it appears by the Statute of 1. Mariae That the former Statutes shall not be taken by equity for by these the President and Commons have power to commit a Delinquent to Prison and this shall be intended if they shall be taken by equity that every Goaler ought to receive him which is so committed But when it is provided by 1. Mariae specially that every Goaler shall receive such offenders That by this appears that the former Statute shall not be taken by equity And so he concluded that Judgement shall be entred for the Plaintiff which was done accordingly Coke in the conclusion of his argument observed these 7. things for the better direction of the President and Comminalty of the said Colledge for the time to come 1. That none may be punished for practise of Physick in London but by the forfeiture of 5 l. a Month which is to be recovered by Law 2. If any one practise Physick there less then a Moneth that he shall forfeit nothing 3. If any person prohibited by the Statute offend in non bene exequendo c. they may punish him according to the Statute within the Month. 4. Those whom they may commit to prison by the Statute ought to be committed presently 5. The fines which they impose according to the Statute belong to the King 6. They may not impose a fine or imprisonment without Record thereof 7. The cause for which they impose fine or imprisonment must be certain The Proceedings of the Colledge against Christopher Barton Weaver UPon the complaint of divers persons against the said Barton for practising of Physick the said Barton was sent for by a Messenger of his Majesties Chamber who appearing before the President and Censors the 6. of Septemb. 1639. and many things being laid to his charge yet for some reasons he was bound with sureties to appear again before them the 4. of October following And he then also appearing was for the Causes in the Censors Warrant expressed committed Bartons Commitment to the Prison of Woodstreet-Compter London where he remained till the 19. of October following never having by all that time petitioned the Colledge for his liberty and then by vertue of a Writ of hab Corpus which he had sued forth of the Kings-Bench he was carried with his Cause to the Kings-Bench Bar at Westminster The Copy of which Warrant and the return thereof here immediately ensueth Nos Johannes Warner Thomas Adams vic Civit London ss ● Sheriffs R●●●turn London Serenissimo Dno Regi in brevi huis schedul annex noiat ad diem locum in eodem bri content certificamus quod ante adventum nob predct bris scilt duodecimo die Sept. Anno Regni dci Dni Regis nunc Angl. c. decimo quinto Christophorus Barton in dco bri noiat comissus fuit prisone Dni Regis scilt Computator situat in Woodstreet London predct in eadem prisona sub Custodia Isaaci Pennington Johannis Wollaston tunc vic Civit. predct in eorum exit ab officio suo sub custodia nr detent virtute cujusdam Warranti Otwelli Meverell Laurentii Wright Edmundi Smith Willmi Goddard in Medicinis Dctor et Censor Collegii Medicor in London sub sigillo Coi Collegii Medicor London pred Custod predct computorii London predct vel ejus deputat direct cujus quidem Warranti tenor sequitur in haec verba ss We Otwell Meverell Lawrence Wright Edmund Colledge Warrant Smith and William Goddard Doctors in Physick and Censors of the Colledge of Physicians in London being chosen by the President and Colledge of Physicians aforesaid to govern and punish for this present