case sir John Wytham against sir richard Dutton to a action of trespass and  false imprisonment a plea that the defendant be governor of barbados that he  appoint the plaintiff deputygovernor during his absence that the defendant do  male et arbitrary execute the say office and that by power vest in he for that  purpose he call a Council before who the defendant be charge with and commit  to the custody of the provost marshal for maladministration which be the same  assault and imprisonment c be a good justification for a action will not lie  against a person for act do in the character modern er p of a judge S c vin  Abr S c show case in parliament Mod salk Cowp dougl term Rep ld ray assault  and false imprisonment on the fourteenth day of October in the thirtysixth  year of Charles the second c the defendant as to the assault before the six  day of November plead not guilty and as to the false imprisonment on the say  six day of November in the same year he make a special justification videlicet  modern that on the twentyeighth of October in the thirtysecond year of Charles  the second c the king by his letter patent do appoint the defendant to be  captaingeneral and chief governor of barbados and so set forth the grant at  large by which he appoint twelve man to be of the king Council during pleasure  of which the plaintiff Wytham be one that the defendant bad also power by the  advice of that Council to appoint and establish court judge and justice and  that the copy of such establishment must be send hither for the king assent  with power also to establish a deputygovernor that by virtue of these letter  patent the defendant have appoint sir John Wytham to be deputygovernor of the  say island in his absence and that he be so constitute do male et arbitrary  execute the say office that when the defendant return to barbados videlicet  November car he call a Council before who the plaintiff be charge with  maladministration in the absence of the defendant videlicet that he do not  take the usual oath for observe of trade and navigation that he assume the  title of lieutenantgovernor and that decree make in court be alter by he in  his chamber upon which it be then order that he shall be commit to the  provostmarshal until discharge by law which be do accord in who custody he  remain from the six day of November to the twenty of December follow which be  the same imprisonment c to this plea the plaintiff demurrer and the defendant  join in demurrer Mr pollexfen argue for the plaintiff first that the cause of  his commitment if any be such as they ought not meddle withal because they  relate to his misbehaviour in his government for which he be answerable to the  king alone but suppose they may have some cause for the commit of he this  ought to be set forth in the plea that the plaintiff may answer it for to say  that he do not take the oath of deputy governor in what concern trade and  navigation be no cause of commitment because there be nobody to administer  that oath to he for he be governor himself then to allege that he alter in his  chamber some decree make in the court of chancery that can be no cause of  commitment for the governor be chancellor there modern beside the defendant do  not show that anybody be injure by such alteration neither do he mention any  particular order but only in general so it be impossible to give a answer to  it second he do not allege that the plaintiff have make or do any of these  thing but that he be charge to have do it and non constat whether upon oath or  not Thompson sergeant for the defendant the governor have a large power give  by these letter patent to make law such as he by consent of a general Council  shall enact the fact be set forth in the plea the plaintiff be commit by  virtue of a order of Council until he be bring to a general court of oyer and  terminer by which court he be again commit that the court bad power to commit  he be not deny for the king be not restrain by the law of England to govern  that island by any particular law whatsoever and therefore not by the  commonlaw but by what law he please for those island be get by conquest or by  some of his subject go in search of some prize and plant themselves there see  calvin case a the plaintiff be then commit by a order of Council till he shall  be discharge by due course of law this court will presume that his commitment  be legal the court be all of opinion that the plea be not good so judgement be  give for the plaintiff but afterward in the five of William and mary this  judgement be reverse by the house of peer see Mostyn v Fabrigas Cowp Johnston  v Sutton I term Rep sutherland v Murray I term Rep b modern er p