[132]. “Memoirs historical and illustrative of the botanic garden at Chelsea, belonging to the Society of Apothecaries of London.”—London, 1820. This memoir was printed at the expense of the society, for distribution amongst its members.
[133]. The most important covenants contained in this conveyance, are the following, viz.
The release is dated on the 20th of February, 1721, and is made between the Honorable Sir Hans Sloane Baronet, President of the Royal College of Physicians, on the one part, and the Master, Wardens and Society of the art and mystery of Apothecaries of the City of London, on the other part. It recites the original lease from Lord Cheyne, and also the great expense which the society had incurred, in furnishing and carrying on the garden, as a physic garden, ever since that lease was granted. It states, that the fee and inheritance of the ground and premises were then vested in Sir Hans Sloane and his heirs. It further declares, that to the end the said garden may at all times hereafter be continued as a physic garden, and for the better encouraging and enabling the said Society to support the charge thereof, for the manifestation of the power, wisdom, and glory of God in the works of the creation, and that their apprentices and others may better distinguish good and useful plants, from those that bear resemblance to them, yet are hurtful, and other the like good purposes; the said Sir Hans Sloane, grants, releases and confirms unto the said Master, Wardens and Society, and their successors, all that piece or parcel of arable and pasture ground, situate at Chelsea in the County of Middlesex, at that time in their possession, containing three acres, one rood, and thirty-five perches, with the green-house, stores, barge-houses, and other erections thereon, to have and to hold the same for ever, paying to Sir Hans Sloane, his heirs and assigns, the yearly rent of £5, and rendering yearly to the President, Council and Fellows of the Royal Society of London, fifty specimens of distinct plants, well dried and preserved, which grew in their garden the same year, with their names or reputed names; and those presented in each year to be specifically different from every former year, until the number of two thousand shall have been delivered.[[134]] It is further provided, that if these conditions be not fulfilled, or if the society shall at any time convert the garden into buildings for habitations, or to any other uses, save such as are necessary for a physic garden, for the culture, planting and preserving of trees, plants and flowers, and such like purposes; then it shall be lawful for Sir Hans Sloane, his heirs and assigns, to enter upon the premises, and to hold the same for the use and benefit, and in trust for the said President, Council, and Fellows of the Royal Society, subject to the same rent, and to the delivery of specimens of plants, as above mentioned to the President of the College, or Commonalty or Faculty of Physic in London; and in case the Royal Society shall refuse to comply with these conditions, then in trust for the President and College of Physicians of London, subject to the same conditions as the Society of Apothecaries were originally charged with.
Power is also reserved for the President, or Vice President of the Royal College of Physicians, once or oftener in every year, to visit the said garden, and examine if the conditions above specified are duly observed and complied with.
[134]. This condition has been long since fulfilled. By an extract from the minutes of the Royal Society, it would appear that the last presentation of Plants took place on the 17th of February, 1774, being the 51st annual presentation, amounting in all to 2550 plants.
[135]. If however a gentleman of quality, or a physician, officer, &c. be chosen constable, where there are sufficient persons beside, and no special custom concerning it; it is said such person may be relieved in B. R. 2 Hawk. P. C. 100. Jac. L. Dict. tit. Constable. As to Surgeons see The King v. Pond. Comyns R. 312: 2 Kebl. 578. 1 Syd. 431: 1 Mod. 22.
[136]. But a Physician in the country, though a Fellow of the College, may be chosen, 2 Keb. 578; 1 Mod., 22.; 1 Keb. 439; 2 Hawk. 100; 1 Sid. 431; 2 Keb. 578; 2 Hale 100; Com. Dig. tit. Physician. For Surgeons see 18 Geo. 2. c. 15. §. 10; 2 Hawk. Pl. 101; 5 Hen. 8. c. 6; 1 Burn. 387. For Apothecaries 6 Will. 3. c. 4; 9 Geo. 1. c. 8. §. 1. See also the Charters. Comyns Rep. 312.
[137]. In one point counsel have an advantage over physicians in respect of their fees; the attorney or solicitor who can recover his costs at law, is an intermediate agent and he is held professionally liable to the counsel for their payment; and if the attorney have received his costs from his client (including fees) it would appear that the counsel might recover in an action for money had and received to his use. It is to the honor of the profession that we should find no decided case on the subject.
[138]. A barrister cannot maintain an action for his fees. Chan. Rep. 38.
[139]. 3 Bl. Com. 28. Taciti An. 1. 11.