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word_n	action_n	bring_v	plaintiff_n	2,718	5	10.1141	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A41429	The Royal College of Physicians of London, founded and established by law as appears by letters patents, acts of Parliament, adjudged cases, &c. : and An historical account of the College's proceedings against empiricks and unlicensed practisers, in every princes reign from their first incorporation to the murther of the royal martyr, King Charles the First / by Charles Goodall ...	Goodall, Charles, 1642-1712.	1684 (1684)	Wing G1091; ESTC R8914	319,602	530

use in his house according to receipts and therefore be not within the Statute 14 H. 8. And if a Gentleman had such receipts and made use of them for those diseases shall he be within this Statute 2. Admit that these diseases be within 14 H. 8. yet 34 H. 8. takes them out of 14 H. 8. clearly and for other things the Statute is onely in force as upon the Statute of 32 H. 8. in Knight's Case there the Stat. of Marlebridge is taken away although it be not named and although the words of 32 H. 8. be in the Affirmative 3. Vpon the pleading of the Statute 1 Mariae that recites 14 H. 8. it is said that in this Statute the words of pleading were continuaret the word staret being omitted that which continued in force ought to be in force at the same time which is but a confirmation of the Statute as it was at the time of the making of 1 Mariae and the Stat. 14 H. 8. is onely recited and some new privileges may be added to this confirmation but cannot be but of a thing which was in esse before 27 H. 8. 2. An Infant grants an Advowson and at full age confirms it the confirmation is void because the grant was void 21 H 7. 1. 12 E. 4. 59. And the Countess of Leicesters case in the Commentaries The reason of the recital of 14 H. 8. was for the addition of some new privileges scil that Gaolers should not permit prisoners to escape committed by the which they might do unpunished before and that all Kéepers of Prisons in London except the Lieutenant of the Tower ought to receive them that shall be committed which they might have refused before 2. Being but a confirmation for the greater part it shall not be a reviver for the lesser part As if Tenant for life of 20 Acres grant his estate in one Acre to I. S. and he in Reversion confirm the estate of tenant for life in all the 20 Acres to the Lessée and his heirs this is a confirmation but of the 19 Acres and although I. S. attorn yet his Acre doth not pass by way of Grant of the Reversion because that he this confirmation for the greater part 18 E. 3. 8. Husband tenant for life and the estate of the husband is confirmed to him and his wife and to their heirs the wife takes nothing and yet the husband is the man that ought to attorn if it would amount to a grant of the Reversion 3. This Statute of 1 Mariae doth not extend to repeal 34 H. 8. in any part because that 34 H. 8. is a general act and the Iudges ought to take notice thereof but 1 Mariae is a particular Statute and therefore doth not repeal the other which is general without express words Vide Holland's case For the point of special demurrer the replication wants form In all replications you ought to confess and avoid or traverse the barr here is implied an avoidance but no confession thereof 34 H. 8. 22. 7 H. 6. 2. where there is an avoidance but no confession therefore ill Lastly here is a departure Stat. de 14 H. 8. remains in force for all diseases but the Stone Strangury and Agues and for them their action lies upon the Stat. 1 Mariae and not upon 14 H. 8. therefore they ought to have named this Statute at the beginning 2 Ass 6. 37 H. 6. 5. 21 H. 7. 18. And for answer to the Iudgment cited in B. R. there the Iudgment was general and 1 Mariae was there pleaded with these words staret continuaret but here it is continuaret which is nonsense And I have credibly heard the case there was not defended omnino but onely argued for the Plaintiff Wherefore upon the whole matter he prayed judgment for the Defendant Davenport è contra Exception hath béen taken to the person that brought the action that the action was not brought according to the name of the College scil by the President and College but by the President onely 8 Report Dr. Bonham's case and although the words of the Statute be that the Action shall be brought by the President and College yet all Suites shall be in the name of the President And so be the Precedents Mich. 5 Jac. rot 299. and Mich. 5 Jac. rot 438. 11 H. 7. 12. 18. where a Charter of Corporation may be granted that they shall not be sued by any other name than their Corporation For the matter in law he said that he would observe the course in 3 Rep. 7. Haydon's case 1. What the Common Law was before the Statutes 2. The mischief to be remedied 3. What remedy is appointed by Parliament 4. The true reason of this remedy The common law before 3 H 8. was that every one might exercise any lawfull trade But there is a different consideration betwéen the practice of Physick and other Mechanick Trades In Mechanick Trades if any one undertake a thing and doth not doe it duly an Action upon the case lieth But in the practice of Physick it is otherwise for the mischief that falls upon the party takes away the remedy scil the death of the Patient by the unskilfulness of the Physician And for this inconvenience was 3 H. 8. cap. 11. made which Statute did not redress the mischief sufficiently because that the allowance or disallowance of Physicians was not referred to Competent Iudges for the fitness of every person should be tried by them which be experienced in the same kind as 8 H. 7. the Ordinary tries whether a Parson sit idoneus ad Ecclesiam but here the Bishop is to be Iudge of the skilfulness of Physicians Another imperfection in this Statute is that the penalty is given and to be recovered by every one that will sue and therefore the care was in no person and also there was not sufficient care for practisers in London There was care that none should practise c. in the negative but what care was there in the affirmative Sir George Farmars case 8 rep 126. Then came the Statute of 10 and the Statute of 14 H. 8. which do not extend to every one that giveth Physick but to him that professeth the practice thereof It hath béen said that 14 H. 8. doth not extend to restrain the practice of those diseases but they confess that they be within the letter of the Statute but not within the meaning but by the Common Law they be taken to be within Physick The Common Law takes notice of a Physician and Surgeon but for an Empirick he is not known to the Law See the Entries fol. 187. A Physician may have debt for his fées so may a Surgeon without doubt but where is there any precedent for an Empirick or Herbalist to have action An Assumpsit he may have but not debt Knowledge of Herbs pertains to Physicians and so of Waters for who can judge of Baths but Physicians and

Feoffments and no departure And so it is in our case 3. In all Cases if the matter be new if it inforce and pursue the declaration it may be in the replication and so we should have shewed the Stat. 1 Mariae in our Declaration and by the same reason we should have shewed the Stat. 34 H. 8. but the Action is for practising of Physick generally and when the other justifies a special practice and traverses the general practice then was the proper and fit time to shew the Statute of 1 Mariae which repeals the Stat. 34 H. 8. upon which the justification is made And Trin. 6 Jac. B. R. which was Commenced Mich. 3 Jac. rot 458. Langton and Gardiner's Case this very point of the departure was debated by the Iustices and resolved no departure for there the case was the same as ours But it was not shewed for cause of Demurrer c. the departure for it is not necessary inasmuch as the Stat. of 37 Eliz. Cap. 5. excepts popular actions and all suites upon penal Statutes Et adjorn ' THe same Term it was afterwards argued by Hedley for the Defendant That all these 3 Statutes may well stand together by reasonable Construction Leges posteriores priores contrarias abrogant But the averment ought to be there upon contrarias But otherwise if upon reasonable construction they may stand they ought and this contrariety ought to be in matter not in special words general words cannot repeal particular For general and particular cannot be contrary Statutes ought to be expounded by the meaning which ought to be found out partly by the words partly by the mischief they intend to remedy First where the Stat. 14. by these words facultates medicinae includes Chirurgery and it séems that this word Medicina includes external medicines as well as internal 3 H. 8. cap. 11. this was made for Physick and for Surgery to remedy all abuses in them and the examination of them that shall be permitted to practice was done by the Bishop who was Physician for the Soul And they conceived that he would have more care of the body Afterwards came the Statute of 14 H. 8. which doth not repeal this Statute in express words but yet in meaning is contrary But they may stand together by Construction For the first is that he shall not practise without licence of the Bishop the second that he cannot practise without licence of the College and therefore ought to have licence of both But this was never the meaning of 34 H. 8. there it is taken that Chirurgery was not within the Stat. 14 H. 8. but there it is outward Medicines which prove Medicina to include Surgery In this Statute they perceived that those persons licensed did much hurt for licentiâ sumus deteriores and that they were as Butchers in Lent which be licensed that sell the worst and dearest meat and for this intent for such diseases where the cause was well known they might practise to do more than contemplation this Stat. gives licence for such diseases After comes the Stat. 1 M. which never intended to repeal 34 H. 8. and restore licences But the Statute was made to give the College more privilege than they had by the Stat. 14. seil that they might commit without Bail or Mainprize But it recites 14. and confirms the same but they never intended to repeal 14. And they confirmed their liberties such as were in force and the 34. is but an exposition of 14. And although 1 Mariae confirm 14. and all Articles Clauses c. yet it ought to be intended all Clauses in force The Statute of maintenance recites that all former Statutes now in force shall be put in execution And if those words now in force were not there yet shall it be so expounded 4 E. 3. 3 4. there were divers Statutes concerning imposition upon Wine and there the Iudges agréed that they ought so to expound them that they may stand no non obstante being But it is objected that there is a non obstante I confess there is a general non obstante any Law whatsoever c. But it ought to be a special non obstante to repeal The Stat. 1 Eliz. was made for the Leases of Bishops after the 13 Eliz. doth not take away 1 Eliz. and yet there is a general non obstante and the Bishop is included amongst Ecclesiastical persons The Marquess of Winchester's Case A man Attainted by Parliament and that he shall forfeit all his Lands notwithstanding all Statutes to the contrary yet the force of the Statute de donis is not taken away by the non obstante But after the Statute 26 H. 8. that all inheritances shall be forfeited notwithstanding any Law c. yet the force of the Common Law is not taken away for a right of action is not by this forfeited Co. 6. Gregorie's Case This general Law doth not repeal a particular Law for Weavers which is a stronger Case than this of ours 21 Jac. Stat. made for Bankrupts recites that all Statutes concerning Bankrupts shall be put in execution it ought to be intended all Statutes that were then in force and not those which be repealed and the confirmation of a thing which is void is void And therefore such part of 14. which was made void by 34. cannot be confirmed As to the exception to the Barr the Barr in substance is good although he might have pleaded Not Guilty yet he may plead the special matter and it concludes absque hoc that he is guilty aliter vel alio modo he hath not justified more than the Statute warrants for thereby he administred drinks and in Latine it cannot be otherwise translated than by the word Potiones 2. The word in the Statute is Agues and he justifies Febribus and although that Febris comprehend both c. yet there is no other particular word that signifies Ague wherefore it is well As for the departure admit 34. is repealed then 1 Mariae ought to be mentioned in the declaration As if a Statute be made for 7 years and after by another Act it is made perpetual the declaration ought to be upon the last Statute And this is not properly a departure for a departure is to be a barr but this is no Cause of Action in the declaration and it is not like to the Case 21 H. 7. 18. 3. For the lying of the Information it is within the letter and the meaning of 21 Jac. It was objected that the words in the Statute be all actions which a Common Informer may have Although the words séem to import so yet there be words after which make this plain by any person whatsoever then it is within the meaning for it was made for the ease of the subject and all the Physicians in England ought to be examined and approved by the College at London Finch Recorder 1 Mariae hath altered 34 H. 8. in