The case of Doctor Bonham,[[92]] which we have been the more particular in citing as it contains much learning on the subject of our enquiries, and is reported by the first authority of his time, having shown that the College cannot fine or imprison for unlicenced practice, but must proceed by action in the ordinary Courts for the statutable penalty of five pounds a month, we must next show by what name the College ought to sue, for upon this point much difference of opinion and practice appears to have prevailed. In the case of The President and College of Physicians v. Talbois, exceptions were taken that the action should be by the President alone. But per curiam, “being a Corporation, it is natural for them to sue by their name of creation.” 1 Lord Raymond, p. 153. Hil. Term 8 & 9, Will. 3. See also The President and College of Physicians v. Salmon, B. R. Trin. Term 13 Will. 3. 1. Ld. Raym, p. 680; 5 Mod. 327; and this appears to be the best rule. In the previous case of The President of the College v. Tenant. Hill. Term. 11 James, Bulstrode’s Rep. Part. 2, p. 185, the action was brought by the President alone, on which the Judges were divided in opinion, Haughton Justice saying, “he may here well bring the action alone in his own name,” but the Declaration being bad in other respects, the rule of the Court was, Quod querens nil capiat per Billam. The Entry in Rastal, p. 426, is in favour of the doctrine that the President may sue alone, as is also the case of Doctor Laughton v. Gardner, 4 Croke, p. 121. Trin. Term. 4 James, and more especially the consequent case of Doctor Atkins v. Gardner, 2 Croke, 169 Pasc 5 James, where Dr. Laughton having brought an action of debt on the Statute, as President of the College obtained judgment Nisi, but dying before execution, his successor Doctor Atkins, brought a scire facias against the defendant to have execution, it was therefore demurred because the scire facias ought to be brought by the executor or administrator of him who recovered and not by his successor; but the Court held that the successor might well maintain the action, for the suit is given to the College by a private Statute, and the suit 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. 1 Rolle Abr. 515.
The penalties are to be recovered by action of debt in the President and College v. Salmon; I Ld. Raym, p. 680.[[93]] an exception was taken that the proceeding should be by information at the suit of the king, but the Court decided that where a certain penalty is given by a statute the person to whom, &c. shall have debt by construction of law. Another exception was taken in the same case, that the action ought not to be brought tam quam, no action being given to the king. Sed non allocatur. For per curiam, the precedents are the one way and the other. See Butler v the President Cro. Car. 256. and cases there cited.[[94]]
The words of the Statute of Henry being strongly prohibitory, none may practise physic under any authority, in London and within seven miles without licence of the College; in the College of Physicians v. Bush. 4 Mod. p. 47. the defendant pleaded letters patents of king Charles the second, by which free liberty is given to French protestants to exercise the faculty of Physic in London and Westminster, &c. and that he was a French protestant. Upon demurrer the plea was held ill. For a Charter or Letters Patent cannot vary an act of Parliament.
The next material point to be considered is, what is a practising of Physic within the meaning of the statutes; this would at first sight appear to be a very simple question, but the act of the 34th Hen. 8. which gives liberty to persons not being Surgeons, to administer outward medicines in certain cases, and drinks for the Stone, Strangury, and Ague, created some difficulties; it was pleaded in the case of Doctor Butler against the President of the College, (Cro. Car. 256,) to which plea the President replied by showing the Statute of the 1 Mary, c. 9. which confirms the Charter and Statute of the 14th Hen. 8. and appoints that it shall be in force notwithstanding any Statute or Ordinance to the contrary; on this several questions arose; those which relate to the special pleading of the case we omit, but the interpretation of the Statutes is material; it was doubted first whether the 34th Hen. 8. did repeal any part of the 14th as to Physicians, or whether as the preamble recites, it was directed against Surgeons, and next whether if it were in any degree repealed, the Statute 1st Mary did not revive the 14th and repeal the 34th. “Richardson, chief Justice, conceived it was repealed by primo Mariæ, by the general words, any act or Statute to the contrary, of the act of decimo quarto Henrici Octavi, notwithstanding. But I (“loquitur Croke,”) conceived that the act of tricessimo quarto Henrici Octavi, not mentioning the Statute of decimo quarto Henrici Octavi, was for Physicians; but the part of the act of tricessimo quarto Henrici octavi, was concerning Chirurgions and their applying outward medicines to outward sores and diseases, and drinks only for the Stone, Strangury and Ague; that Statute was never intended to be taken away by primo Mariæ. But to this point, Jones and Whitlock, would not deliver their opinions; but admitting the Statute 34 Hen. 8. be in force, yet they all resolved, the defendant’s[[95]] plea was naught, and not warranted by the Statute; for he pleads, that he applied and ministered medicines, plaisters, drinks, Ulceribus Morbis et Maladiis, Calculo Strangurio, Febribus et aliis in Statuto mentionatis; so he leaves out the principal word in the Statute (Externis), and doth not refer and shew that he ministered potions for the Stone, Strangulation or Ague, as the Statute appoints to these three diseases only and to no other; and by his plea his potions may be ministered to any other sickness; wherefore they all held his plea was naught for this cause, and that judgment was well given against him; whereupon judgment was affirmed.” This case is reported more fully in Brownlow, p. 126. See also Goodall, p. 221 to p. 259.
But though this statute 34 Hen. 8th gave a very considerable latitude to unlicensed practice, the decision of the House of Lords in the case of Rose has rendered it yet more difficult to determine what is a practising of Physic within the statute 14 Hen. 8th.
This case arose on an action in the King’s Bench for practising Physic within seven miles of London without licence; the case upon a special verdict was, that the Defendant being an Apothecary by trade was sent to by John Seale[[96]], then sick of a certain distemper, and he having seen him, and being informed of the said distemper, did without prescription or advice of a Doctor and without any fee for advice, compound and send the said John Seale several parcels of physic as proper for his said distemper, only taking the price of his drugs; and if this were a practising of physic, such as is prohibited by the Statute was the question: and after several arguments the Court at last unanimously agreed, That practising of Physic within this statute consists, 1st, In judging of the disease and its nature, constitution of the patient, and many other circumstances. 2ndly, In judging of the fittest and properest remedy for the disease. And 3dly, In directing and ordering the application of the remedy to the diseased. And that the proper business of an Apothecary is to make and compound, or prepare the prescriptions of the doctor pursuant to his directions. It was also agreed, That the Defendant’s taking upon himself to send physic to a patient as proper for his distemper without taking ought for his pains, is plainly a taking upon himself to judge of the disease and fitness of the remedy, as also the executive or directing part. Et per tot. Cur. The Plaintiff had judgment. 6 Mod. 44. 16 Vin. Abr. 341. Against this judgment the Defendant Rose brought a Writ of Error to the House of Lords, “That judgment having been given in the Queen’s Bench against the now Plaintiff on a special verdict, he humbly hopes the same shall be reversed for these reasons:
“That the consequence of this judgment will entirely ruin the Plaintiff in his trade, and indeed all other Apothecaries, since they can’t (if this judgment be affirmed) use their professions without the prescript or license of a Physician.
“That the constant use and practice[[97]] which has always been with the Apothecary, shall as we humbly hope be judged the best expounder of this Charter: and that selling a few lozenges, or a small electuary, to any asking a remedy for a cold, or in other ordinary or common cases, or where the medicine has known and certain effects, may not be deemed unlawful, or practising as a Physician, when no fee is taken or demanded for the same.
“That the Physicians by straining an Act made so long ago, may not be able to monopolize all manner of Physic solely to themselves; and the rather, for that such a construction will not only be the undoing of the Apothecaries, but also,
“1. A tax on the Nobility and Gentry, who in the slightest cases, even for their servants, can’t then have any kind of medicines, without consulting and giving a fee to one of the College.