characters in which the Plaintiffs sued prevailed in their favour; but in this case the only acknowledgment by the Defendant of the Plaintiff's professional character is that which arises by implication from the Defendant having called him "Doctor," and made up his prescriptions. Now we all know how flippantly the title of doctor is given to persons who have no pretension whatever to it. Indeed those to whom it is given may possibly have acquired it in some foreign university. No presumption in the Defendant's favour can arise from his four years' practice. There are indeed many cases in which length of enjoyment may found a presumption of right, but here the qualification must arise from a diploma, licence, or degree, and there is no evidence in this case which would not tend to convict the Plaintiff of practising without a qualification. The very practice relied on will prove him guilty. With respect to the supposed inconvenience in case of the diploma or other instrument being lost, it admits of an easy remedy. The Plaintiff knows where he has obtained his licence, and he may supply the defect by secondary evidence. But what does the Defendant know? He must send to the two universities in England, to the college of physicians, and to all the universities in Scotland, and I do not know whether the union with Ireland would not also render it necessary for him to send to the universities in that part of the united kingdom. And he must produce witnesses to prove that he has made search in all those places. In point of inconvenience, there is no comparison. There being no evidence then but what would convict the Plaintiff of wrongful practice upon an indictment, I think he can maintain no action for the loss of those fees to which he could have uo lawful title. In this case, as the Court is equally divided, my opinion will have no effect, and as I dare say that this gentleman, in point of fact, is legally VOL. I. N. R. autho Q 1805. SMITH v. TAYLOR. authorized to practise, I am not sorry that the verdict which he has obtained will stand. The Court being equally divided no rule was made, and consequently the Plaintiff retained his verdict. Feb. 27 th 1804. Certain premises were conveyed to the freehold to created a trustee for the grant till default of payment. The memorial of the annuity described the trustee to be 66 a trustee nomi nated on the part of the grantee," without stating any of the trusts; held to be an insufficient description under (IN THE HOUSE OF LORDS.) ASKEW v. Sir ROBERT MACKRETH, in Error. HIS was a proceeding in replevin in the Court of King's Bench at the suit of Sir Robert Mackreth, against Richard Askew. The Defendant made cognizance as bailiff of the Duke of Queensberry, and justified the taking the goods and chattels mentioned in the declaration, on the ground that the said Sir Roberi and John Martindale, on the 29th of November 1793, by an indenture duly executed by them, conveyed unto Thomas Coutts and his heirs, amongst other premises, the mansion-house in which the said goods and chattels were taken, to hold the same to the said Thomas Coutts and his heirs, to the use, intent and purpose that the said duke should and might, from thenceforth yearly, receive and take, during the term of his natural life, an annuity of 2000l., to be yearly issuing and payable out of the said mansion-house and the said other premises, and to be paid to the said duke on the 9th day of May and the 9th day of November in every year, by even and equal portions; and to and for the further use, intent, and purpose, that if any part of the said annuity should be behind or unpaid twenty-one days after 17 G. 3. c. 26. If the consideration for an annuity be paid by the clerk to the bankers of the grantee, the deed by which the annuity is granted must specify the name of such clerk, and describe him as the person by whom the consideration was actually paid. any any of the said days whereon the same ought to be paid as aforesaid, it should be lawful for the said duke, during the term of his natural life, to distrain upon the said mansion-house and other premises, in satisfaction of the arrears of the said annuity; and the said Richard Askew, as such bailiff, justified the taking of the said goods and chattels as a distress for the sum of 80001. due for four years, of the said annual sum of 20007. on the 9th day of November 1800. The Plaintiff below craved oyer of the indenture mentioned in the said cognizance, and set it forth in his plea in bar, and the same appeared therefrom to be an indenture of five parts, made the 9th day of November 1793, between the said Sir Robert of the first part, John Martindale of the second part, Henry Martindale of the third part, the said Duke of Queensberry of the fourth part, and the said Thomas Coutts of the fifth part; and thereby, after reciting that certain premises therein mentioned had been conveyed by indentures of lease and release, bearing date the 30th and 31st days of October 1793, unto the said Henry Martindale and his heirs, to the use of the said Sir Robert Mackreth and his assigns for his life, remainder to the use of the said John Martindale in fee, and also reciting that the said Henry Martindale was entitled to certain other premises, therein particularly mentioned, for the residue of a term of twenty years, in trust for the said Sir Robert Mackreth during his life, remainder to the said John Martindale and his heirs, and reciting that the said duke had contracted with the said Sir Robert Mackreth and John Martindale for the purchase of an annuity of 20001. for his own life for 14,000l., it was witnessed that in consideration of the sum of 14,000l. of lawful money of Great Britain to the said Robert Mackreth and John Martindale in hand, well and truly paid by the said duke at or before the sealing and delivery of the said indenture, the receipt of which said sum of 14,000l. they 1805. ASKEW V. MACKRETH. 1805. ASKEW v. MACKRETH. the said Sir Robert Mackreth and John Martindale did thereby respectively acknowledge, they the said Sir Robert Mackreth and John Martindale, according to their respective estates, rights, and interests, did convey the said premises, to which the said Sir Robert Mackreth was entitled for life, and the said John Martindale was entitled in fee as aforesaid, unto the said Thomas Coutts and his heirs, upon the trusts, and for the ends, intents, and purposes,and subject to the provisoes and agreements thereinafter limited, declared, or expressed and contained, of and concerning the same; that is to say, that the said duke might take the said annuity out of the same premises, and might distrain for the same thercon, in case default should be made in payment of any part thereof for 21 days, and if the annuity should be in arrear 40 days, might enter on the same premises and receive the profits thereof until all arrears of the said annuity should be satisfied, and subject to the said annuity, and the said powers and remedies for the recovery thereof, to the use of the said Thomas Coutts for the term of ninety-nine years, to be computed from the day next before the day of the date of the said indenture, without impeachment of waste, upon and for the trusts, intents, and purposes, and subject to the proviso thereinafter declared and contained of and concerning the same term; and after the determination of the said term of ninety-nine years, and in the mean time subject thereto and to the trusts thereof, to such uses, and for such intents and purposes as the same premises, at or immediately before the execution of the said indenture, stood limited aud assured in and by a certain therein recited indenture of release and assignment of the 31st day of October then last past; and it was by the said indenture of the 9th day of November 1793 agreed and declared by and between the said parties thereto, that the said manor, hereditaments, and premises were limited to the said Thomas Coutts for the said term of ninety-nine years, years, upon trust, to permit and suffer the person or persons entitled to the freehold of the same premises to receive the profits of the same premises to his and their own use, until default should happen to be made in due payment of the said annuity, or some part thereof, but upon trust, that in default of the payment of the said annuity for sixty days, the said Thomas Coutts might, out of the profits of the same premises, or by sale, lease, or mortgage of the same premises for all or any part of the said term of ninety-nine years, raise and levy sufficient to pay the arrears, costs, and charges, and permit the person entitled to the freehold to receive and take the overplus of the rents and profits. Provided always, and it was thereby declared and agreed, by and between the said parties to the said indenture, that from and after the decease of the said duke, and payment of all arrears of the said annuity, the said term of ninety-nine years should be at an end; and by the said indenture of the 9th day of November 1793, the said Henry Martindale, at the request and by the direction of the said John Martindale and Sir Robert Mackreth, did convey his said interest in the said premises, to which the said Henry Martindale was so entitled for the residue of the said term of years as aforesaid, to the said Thomas Coutts, to have and to hold the same unto him, upon such trusts, and for such ends, intents, and purposes as were thereinbefore mentioned of and concerning the said premises comprised in the said term of ninety-nine years, or as near thereto as the respective property would admit; and the said Sir Robert Mackreth and John Martindale did by the said indenture covenant with the said Thomas Coutts that they would, for the better securing the payment of the said annuity, surrender into the hand of the lord of the manor of Marydown, in the county of Southampton, certain premises, in the said indenture mentioned, to the use of the said Thomas Coutts, his heirs and assigns, during the lives of the said Sir Robert Mackreth, John Dicker, Q 8 and 1805. ASKEW v. MACKRETH. |