case dr GROENVELT vers dr Burwell and other censor of the college of physician  see SC ld raym e r with note power of the censor of the college of physician  ld raym SC plead ld raym salk salk SC holt SC Mod SC Carth S c this be a  action of trespass for a assault battery wound and false imprisonment the  defendant as to the beat and wound plead not guilty and as to the residue of  the trespass they justify comens for that by letter patent date the d of  September h the king grant that they videlicet the doctor of physic in London  shall be a body and perpetual community per nomen to guard college sive  partnership means medicine London c and that they may make bylaws quod quatuor  one year to pluck out who to have search amendment steering all singulor  speech community Median another Median forinsecorum facultate that act  infra  the same community suburbia ac infra seven mile in revolution the same ac a  punishment the same pro fault nest in non bene to drive c per fine amerciament  imprisonamentum substantial object of oneself and that these letter patent be  confirm by a Act of parliament of h and that on the saint of January will the  plaintiff exercise the art of physic in London and that he administer have and  unwholesome physic to one woman and that the say woman and her husband  complain to the defendant be then the censor of the say college upon which  complaint the plaintiff be comens er p summon before they and upon examination  they find he guilty of administer unwholesome physic by mean of which the say  woman languish and thereupon they fine the plaintiff and make a warrant under  their hand and seal to who be also a defendant to take the plaintiff who take  he pursuant to such warrant and convey he to prison which be the residue of  the trespass of which the plaintiff complain the plaintiff reply protestand  that there be no such letter patent and no such Act of parliament and  protestand that the plaintiff do not administer such unwholesome physic that  the defendant of their own wrong commit the trespass without hoe quod that the  plaintiff be take and commit by force of the say warrant and to this it be  demurrer and this case be diverse time argue and many exception be take to the  plea and to the replication and now this term judgement be give for the  defendant and holt c j deliver the opinion of the court and say that the rest  of the judge be agree that the replication of the plaintiff be ill and that  the plea of the defendant be good the plaintiff in his replication traverse  the take by the warrant mention in the plea of the defendant and this be ill  both in substance comens and in form for in point of form he ought not to  traverse the take by force of the warrant but that there be not any such  warrant for if it be necessary that the arrest of the plaintiff shall be by  the same warrant that be mention before in the plead then if the defendant  have show in their plea another wartant than that which be show at the time of  the arrest the plaintiff ought not to have say that he be not take by this  warrant but that there be not any such warrant but the replication be not good  in point of substance for the plaintiff seem to intend that the warrant by  which he be arrest be not a good warrant for which reason he will take  advantage of it but admit that the warrant upon which the plaintiff be arrest  be unlawful yet the plaintiff shall not have advantage of it if there be  another warrant which be lawful to take he at the same time for if there be  two warrant the one lawful and the other unlawful and the party be take upon  the illegal warrant yet he who apprehend he may justify himself by the  authority of the legal warrant and this appear by the case mich Edward  Fitzherbert avowry cite   a if a man take a distress for a thing for which he  have not good cause of distress but have good cause of distress for another  thing if a replevin be bring and he come into court be may avow for which  thing be please then it be consider whether the plea of the defendant be good  to which it have be object that it be ill for the uncertainty for the cause of  the commitment be traversable ought to be allege with certainty second that by  the plea it appear that the plaintiff be fine and imprison also the censor f  the college of physician the defendant have authority to impose a fine and to  imprison for nonpayment of that fine or they may imprison for the offence but  they can both fine and imprison for the same offence as in this case for it do  not appear that the imprisonment be for nonpayment of the fine but the  plaintiff be both fine and imprison and so be twice punish for one offence  three the plea do not show that the plaintiff be one of the college fourthly  the plea make no answer to the assault it do not show that there be any  assault or set forth any justification of it comens but holt c j say that the  court hold the plea to be good for it go to whole declaration as to the  battery and wound the defendant plead not guilty as to the residue of the  trespass they justify and the residue of the trespass comprehend the assault  and every other part of the declaration to which the plea of not guilty do not  extend and there be no need that the plaintiff shall be of the college for it  appear that be exercise his faculty within London and the censor have  jurisdiction within London and the suburb and seven mile in circumference and  it appear by the word of the charter that the censor have power to punish by  fine and imprisonment and bow they exercise that authority we do not inquire  as it will be apparent afterward in the answer to the first objection and  which be the most material one in answer to the first objection then we say  first that the cause of the commitment be not traversable second if it be  traversable it be set forth with certainty enough that the cause of commitment  be not traversable appear by the authority which the censor have by the Act of  parliament for by it they be constitute judge of fact what be a  maladministration of comens er p medicine and what be not and they be judge of  record for they have authority to impose fine and imprisonment and when a new  authority be constitute with power to fine and imprison the person invest with  such authority be judge of record for that very thing prove a court to be a  court of record videlicet the power of fine or imprison for court which be not  of record can neither set a fine nor commit any one to prison   b and there it  be prove that the leet can impose a fine because it be a court of record and  forasmuch as the statute W c empower the auditor to commit the accountant to  prison the auditor be thereby make judge of record as be observe   a Inst then  the censor be constitute judge of the matter that which they have do as such  they shall not be answerable for and that a judge shall not be answerable for  a act do by he as a judge appear by   and the case there cite true it be that  if justice of Bl Rep burr a peace issue his warrant to imprison the party or  to arrest he until such time as he can be bring before he or if the  commissioner comens of bankrupt commit a witness for refuse to be examine vide  saint James c sec a it may be determine in a action whether they have pursue  their authority or not for their act in this respect be only ministerial Bl  Rep ld raym b and the commitment be not intend as a punishment but only as a  mesne process to bring the party to justice or to make he do his duty my Lord  coke it be true say in dr Bonhams case   a that the cause of commitment be  traversable but this opinion be there give obiter and be not essential to the  case in judgement for there the question be for practice without the licence  of the college for which the party can not be imprison and dr Bonham be a  graduate in the university my Lord coke be carry away by his affection to his  alma mater so far as to make a resolution in the present point which be not in  the case before he but my Lord coke say that upon a conviction by the censor  they ought to make a record of it which admit that they be judge of record and  then by his own rule there in the case of a justice of peace who make a  conviction of a force and the case in his other work their act the act of the  justice of the peace can be traverse and my Lord coke do not cite any  authority in support of his opinion as to the point now before we the reason  which he give why the party have no remedy by writ of error or otherwise be of  no weight I grant that a writ of error lie not for the censor have a new  authority by a special Act of parliament and their proceed be direct to be in  a summary way there be no need for they to pursue the form and method of other  court and it be sufficient for they to make such summary proceed as justice of  the peace in many case may do yet the party be not without remedy for he may  have a certiorari to remove the record of conviction and then it may be  examine and review to see whether it be pursuant to their authority f or in  every case where a new jurisdiction be set up for a special purpose this court  by virtue of its original power may award a mandamus to make they put their  authority in execution and a certiorari to look into their proceed whether it  be conformable to their authority or not comens thus a certiorari lie to  remove a indictment for felony before the justice of peace cro Elizabeth near  be case to remove order before commissioner of sewer or by justice of the  peace who have authority to make conviction of a force in their presence or  for deerstealing but although no certiorari do lie in the present case it be  not consequential that the cause of their commitment be traversable for if the  parliament intrust they with a power so great that no act of they shall be  reverse or review there be the less reason that their proceed shall be examine  or traverse in a action a jury be not finable for give a verdict against  evidence and though there be many case where juryman have be fine more Yelv  Leon Noy yet bushel case in which all the other be cite be sufficient to  control all the rest Vaug keb Freem Jones Mod S c a and if a juror shall not  be fine or imprison or otherwise punish for refuse to find a man guilty upon  apparent and plain evidence much less shall a judge be liable to censure in  the case Mod Mod b of Hammond and Powel p car a action for false imprisonment  be bring after the resolution in bushel case for his imprisonment for Hammond  be one of the same jury with bushel and fine and imprison for it at the same  time and notwithstanding that the fine and imprisonment be illegal yet it be  adjudge that the action do not lie for false imprisonment against the judge or  the officer so a fine comens er p impose by a judge of a court be not  traversable as a amercement be h a as to the case between terry and Huntington  hard which may be object that be good law for there a action be bring against  the commissioner of excise who have charge a man for the duty upon strong  water where the liquor make by he be low wine of the first extraction and the  action well lie for they have exceed their jurisdiction for low wine of the  first extraction be not Chargeable within the Act of parliament and as they  have charge a duty upon a liquor not Chargeable with it they be not to be  excuse for have name it strong water if a justice of peace commit a man  irregular for be the father of a bastard child no action lie against the  justice if the man be the father of a bastard otherwise comens if he have no  bastard at all so the case between Nichols and walker cro car Jones SC roll  Abr a be good law for there a inhabitant of Tottridge be charge to the poor of  Hatfield and the justice of peace have power to award a distress where a  person be assess to the poor of the parish where he bath land or be a  inhabitant but where he be charge to the relief of another parish there the  case be beyond their jurisdiction but if the cause of the commitment be  traversable yet the plea of the defendant here be good for it show with  certainty in what the ill administration of the physic consist videlicet in  the use of unwholesome drug and although it be not say what drug be use it be  no matter for how shall we be inform whether he bath show they in a action  against a surgeon for a inartificial cure the plaintiff do not show what  plaster the defendant use as to what bath be say that the plea do not show for  what malady the medicine be give it be answer that it will be much the worse  if the medicine be give when the party have not any malady at all and although  it be not say that the witness upon who testimony the fine be impose be upon  oath yet the plea be sufficient for it may be that it be not necessary that  they shall be swear or if it be needful the omission of it be not such as will  make their proceed void in such a special jurisdiction in which the proceed be  to be in a summary manner it be not needful to observe all the circumstance  which be necessary in other legal proceed judgement for the defendant