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, (a) 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 (b) 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 (c) judges, ministers, and parties; judges to give sentence or judgment; ministers to make summons; and parties to have the moiety

(a) 2 Brown!. 264. Cart. 115.

(6) 2 Brownl. 264.

(c) Co. Lit. 141. a. Hob. 87. Bridg. 11. 2 Brownl. 266. Dyer 220. pl. 14.

of the forfeiture, quia (a) gliquis non debet esse Judex in propriá 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 (b) 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 (c) 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. (d) 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. (e) 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 (f) 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

(4) Co. Lit. 141, a.

(b) 7 Co. 14. a. Calvin's case. Hob. 87. 2 Brownl. 198, 265. Hard. 140.

(c) 8 E. 3. 30. b.

(d) 2 Inst. 401, 402.

(e) 2 Brownl. 265. 2 Inst. 402. F. N. B. 209. f.

) 2 Brownl. 265. Vet. N. B. 138. b. 2 last. 442.

as to that point void. The statute of (a) 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 (b) 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 (c) 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' custodiť inveniant' a modo sigilluť, 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 (d) King should hold of any, or do service to any of his subjects, 14 Eliz. Dyer 313. and (a) 2 Inst. 580, 581, 582, &c. Skinner 464.

(6) 2 Inst. 588. 2 Brownl. 198, 265.

(c) 2 Brownl. 265. 2 Inst. 587.

(d) Dy. 313. pl. 91. 1 Co. 47. a. Dav. 2. a. Car. 82, 83. 2 Roll. Rep. 246, 247. 1 Jones 234.

Co. Lit. 1. b. Cro.
Lit. Rep. 43.

so it was adjudged

Mich. 16 & 17 Eliz. in Com' Banco

in (a) 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 51. 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 (b) 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 51. and by the second by fine and imprisonment, without limitation for every time of the month in which he practises physic. And all these reasons were proved by two grounds, or maxims in law; 1. (d) Generalis clausula non porrigitur ad ea quæ specialiter sunt comprehensa: and the case between Carter and (e) 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

(a) 1 And. 45. 3 Leon. 58. 4 Leon, 40, 41. (b) 4 Co. 48. a.

(c) 2 Ventr. 170. 4 Co. 43. a. 5 Co. 61. a. Rep. 95. Cawly 78. Noy 82. Bridgm. 122. Max. 695.

(d) Postea 154. b.

11 Co. 59. b. 1 Roll. Cro. Jac. 481. Wing.

Raymond 330. Hawkes's Max. 21. Styles 391.

(e) Cro. El. 208. 2 Leon. 47. Owen 84, 85. 1 And. 245. 6 Co.

64. b. 3 Bulstr. 66, 185. 2 Roll. Rep. 276. Winch. 92. Lit. Rep. 64, 67, 289. Styles 391.

Lane 69.

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. (a) Verba posteriora propter certitudinem addita ad priora quæ certitudine indigent sunt referenda. 6 E. (6) 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 pertinentis 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 pertinentis, 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 (a) Wing. Max. 67. Lit. Rep. 66.

(b) Lit. Rep. 66. Wing. Max. 67. Styles 78.