scheduled in the Act, although he effects the sale on behalf of his employer, who is duly registered as a medical practitioner, and also as a chemist and druggist.

The appellant was charged in the Sheriff Court of Lanarkshire at Glasgow with two offences under the 1st and 15th sections of the Pharmacy Act 1868, an Act dealing with the sale of poisons. The complaint was at the instance of the respondent, the registrar under the Pharmacy Acts 1852 and 1868, in name and by the authority of the Council of the Pharmaceutical Society of Great Britain, with the concurrence of the Procurator-Fiscal of the Court. It set forth that the appellant, not being a duly registered chemist within the meaning of the Act, had on two occasions, separately libelled, within the premises occupied by his employer Dr Hugh Kelly, sold to customers certain of the poisons scheduled in the Act. The following facts were admitted or proved --"1st. The whole averments of fact contained in the complaint. 2nd. That the shop 133 West Scotland Street, where the poisons in question were dispensed, belongs to Doctor Hugh Kelly who is a properly qualified medical practitioner, and also a properly qualified and registered chemist and druggist. 3rd. That the appellant is not a duly registered pharmaceutical chemist or chemist and druggist within the meaning of the said Acts. That on the two occasions libelled, Dr Kelly was not present when the poisons were sold, and the business was being conducted in his absence by the appellant. It was before the passing of the Pharmacy Act 1868, and still is, quite a common thing in Scotland for medical practitioners to keep drug shops."

The Sheriff convicted the appellant of the offences charged, and imposed a modified penalty of £1, 1s. for each offence, and a sum of £2, 2s. of expenses.

In the stated case the following questions of law were submitted to the Court of Appeal-"(1) Whether in the shop of a duly qualified and registered medical practitioner, his assistant, who is not a duly qualified and registered medical practitioner, nor a registered pharmaceutical chemist, or chemist and druggist, within the meaning of the said Acts, contravenes the 1st and 15th sections of the Act of 1868 if in the absence of the medical practitioner ne sells any of the poisons included in the schedule annexed to the Act? (2) In the event of the first question being answered in the affirmative, whether the employer or his assistant is liable in the penalty? (3) Whether in the whole circumstances of the case the conviction in question was justifiable?"

The preamble of the Pharmacy Act 1868 recites that "it is expedient for the safety of the public that persons keeping open shop for the retailing, dispensing, or compounding of poisons, and persons known as chemists or druggists should possess a competent practical knowledge of their business, and to that end that from and after the 31st of December 1868 all persons not already engaged in such business should, before commencing such business, be duly examined

as to their practical knowledge, and that a register should be kept as herein provided." Section 1 makes it "unlawful for any person to sell or keep open shop for retailing, dispensing, or compounding poisons ... unless such person shall be a pharmaceutical chemist, or a chemist and druggist within the meaning of the Act, and be registered under the Act."

Section 15, repeating the phraseology of section 1, enacts that "from and after the 31st day of December 1868, any person who shall sell or keep open shop for the retailing, dispensing, or compounding poisons... not being a duly registered chemist or chemist and druggist... or shall fail to conform with any regulations as to the keeping or selling of poisons, made in pursuance of this Act... shall for every such offence be liable to pay a penalty or sum of £5."

Section 4 gives facilities to be registered as chemists and druggists to persons who before the passing of the Act had been for three years employed in the dispensing and compounding of prescrip tions as assistant to a chemist, subject to their passing such modified examination the Council of the Pharmaceutical Society may declare to be sufficient evidence of their skill and competency to conduct the business of a chemist and druggist.

as

The 17th section renders it unlawful to sell any poison unless certain regulations therein prescribed, and intended to facilitate the tracing of poisons, are observed. It imposes penalties on "any person selling poison otherwise than is herein provided,' and declares that "for the purposes of this section the person on whose behalf any sale is made by any apprentice or servant shall be deemed to be the seller."

An Act passed in 1869 to amend the Act of 1868 (32 and 33 Vict. cap. 117), reserves the rights of medical practitioners regis tered as such before the passing of the Act, and provides that the first fifteen sections of the Act of 1868 shall not apply to medical practitioners registered as such after the passing of the Act, if in order to obtain their diploma they shall have passed an examination in pharmacy.

Argued for the appellant-The preamble of the Act shows that the mischief aimed at is the keeping of open shop for the sale of poisons by unqualified persons. Nothing is said as to their assistants. The purpose of the statute is therefore to require that the person who actually owns and conducts the business, and not the assistant who hands over the drugs to purchasers, should be properly qualified. The alternative implied in the words "sell or keep open shop" in the first and fifteenth sections is in harmony with the preamble if it be taken to refer to different acts of one person, i.e., the trader who sells, whether in open shop, or not, or who keeps open shop and sells by the hands of others; but if it be held to refer to different persons, the trader who keeps open shop, and the assistant who sells on his behalf it goes

v.

1

beyond the mischief in the preamble. The words being ambiguous ought to be interpreted so as to be in harmony with the intention expressed in the preamble, and in favour of the liberty of the subject. Mr Justice Grove so interprets them in Templeman v. Trafford, L.R., 8 Q.B.D. 397, 400. "Seller" properly means the principal, who is legally the party to the contract of sale, and not his agent or agents, who may be employed in preparing the article for sale and handing it to the customer. This has been held in a prosecution under the Salmon Fisheries Act 1868-Kerr v. Phyn, 20 R. (J.C.) 60, and 30 S.L.R. 607. Conversely, it has been held in a prosecution under the Public-Houses Acts that the principal for whom the article is received is the buyer, and not the agent who receives it-Graham v. Lang, 4 R. (J.C.) 12, and 14 S.L.R. 179. In this case the order for the poison might be given to one assistant, the poison might be compounded by another, and handed to the purchaser by a third. All these persons would be engaged in the sale, and according to the respondent's view they would all require to be qualified. If both the employer and the assistant are to be qualified, then section 17 clearly contemplates a breach, for it presupposes a sale of poisons by an apprentice or servant, persons who are not qualified, but who are in the course of qualification in accordance with the provisions of section 4. decision in the case of The Pharmaceutical Society v. Wheeldon, L.R., 24 Q.B.D. 683, is not an authority binding on this Court, and is erroneous. The expression of opinion by the Judges of the House of Lords in The Pharmaceutical Society v. The London and Provincial Supply Association, L.R., 5 App. Cas. 857, are mere obiter dicta, and not necessary to the decision of the question raised in that case.

The

Argued for the respondent-Of the alternative constructions suggested, that must be preferred which will effectually ensure the safety of the public. Section 4 certainly contemplates the employment of unqualified persons in chemists' shops, but that section is dealing with the dispensing of innocuous drugs, and not with poisons. There are only fifteen substances scheduled in this Act as poisons, so that a large part of a chemist's business might be conducted by unqualified assistants. The apprentice or servant in section 17, by whom the sale of poisons is made, must be held to be a qualified apprentice or servant. The use in that section of the words "for the purpose of this section,” conditioning the interpretation of the word "seller," clearly shows that in other sections a different meaning is to be given to the word. If the appellant's construction is right, then in the case of a corporation no protection is given by the Act to the public. The corporation is not a "person" in the sense of the Act, and it is not liable to the penalties against the sale of poisons by unqualified persons-The Pharmaceutical Society v. The London and Provincial Supply Association, above referred to. If

the assistants of the corporation may also be unqualified, then the Act is a dead letter. Six Judges in England have adopted the reading of the statute contended for by the respondents.

At advising

LORD JUSTICE-CLERK - The conviction which forms the subject of this appeal was pronounced on a complaint which charged the appellant with an offence against sections 1 and 15 of the Pharmacy Act of 1868, in respect that he not being a person qualified according to the requirements of that Act, sold certain poisons and substances to a person named, contrary to that Act, and thereby was liable in the penalty prescribed by it. The first clause makes it unlawful for a person not qualified in the manner set forth to do certain things, and the 15th clause fixes a penalty for the doing of any of these or certain other things. The words in both clauses which require to be considered are the words "any person who shall sell or keep open shop for retailing, dispensing, or compounding poisons," and the question which arises is, whether, if it be proved that an individual who is not qualified has de facto sold poison, that is sufficient to justify his conviction under section 1, and his being sentenced to pay a penalty under section 15?

The facts are that the appellant's master is a properly qualified medical practitioner -who is under a later statute declared to be as competent to sell poisonous drugs as if he possessed the qualification set forth in the Act of 1868-and that the appellant, not being himself qualified, sold poison in his master's absence.

The chief argument of the appellant was, that although in point of fact he performed the sale he did not truly sell, that the sale was the sale of his master, who alone had any interest in the transaction, that the statute was not intended to strike against the subordinate, who acted only as a servant, but only against the seller in the sense of the trader in whose interest and to whose profit the sale was made.

When I read the clauses founded on, I find no ground for holding that they do not strike at the person who performs the act of sale. The word "sell" appears to me to apply to the person doing the act of sale in a retail business, whoever may be the person or persons for whose behoof he acts. The words "or keep open shop for the retailing, dispensing, or compounding" set forth an offence by itself, for which the penalty of the Act might be inflicted without proof of an actual sale But that the word "sell" is intended to strike at the person who does the act of selling I have no doubt. I think that the word must be taken in connection with the statement of non-qualification as applicable to the person who does the act. If it did not, the purpose of the Act, which is declared to be the safety of the public, would be defeated. The purpose is to ensure the public safety in the sale of poisons, and that cannot, as I

think, refer to sale in any other sense than the external transaction of giving over the article which the purchaser demands in the ordinary course of retail business by the person carrying out the sale. The meaning of the Act is, in my opinion, that poison shall not reach the hands of members of the public by the transfer of sale, except through the medium of a person possessing a satisfactory qualification, and that any person not possessing that qualification who effects such a sale by giving poison by an act of sale to a member of the public desiring to purchase it, offends against the statute.

Reference was made in the debate to the preamble of the statute in which the word "sell" does not occur, and it was therefore maintained that the word "sell" in the enacting clause should be read so as not to go beyond the preamble. I do not think that such a course can be justified. If the enacting words of a statute are in themselves distinct, I cannot hold that their going beyond the preamble is a reason for setting them aside or endeavouring so to read them so as to take away their meaning, particularly if in doing so the main purpose of the Act as expressed in the same preamble would thereby be practically defeated. That it would be so here there can be no doubt, for if the appellant's contention be sound, then if a person qualified under the Act opens a shop, poisons may be daily sold in that shop by persons having no qualification, and no prosecution can be successful, for the shop is not opened and kept by an unqualified person, and it is the qualified person who by the hand of the unqualified assistant sells to the public. And as a doctor as in this case is qualified, he may spend his whole day in visiting his patients, while poisons are hourly dispensed on his premises by an unqualified shop boy, yet no penalty can be inflicted, and therefore no deterrent put in force against such dangerous practice, which it was the very purpose of the statute to prevent.

It is noteworthy that where in another clause of the Act it was deemed desirable to make the act done by the servant to be the act of the employer, this was expressly set forth. For in section 17 it is declared that "for the purposes of this section the person on whose behalf the sale is made by an apprentice or servant shall be deemed to be the seller," thus distinguishing sales under that section from those made under the sections in question.

I am confirmed in the views I have expressed by the decision in England upon this same question in the case of The Pharmaceutical Society v. Wheeldon, 24 Q.B.D. 683, and also by what fell from the noble Lords who sat on the appeal case of The Pharmaceutical Society v. The London and Provincial Supply Association, 5 App. Cas. 857, and I have therefore come to the conclusion that the first question stated in the case should be answered in the affirmative. As regards the second question, it is only necessary to say that the sentence to pay the penalty

can only be imposed upon the person con. victed. The third question is merely formal, and if I am right as regards the first, must be answered in the affirmative.

LORD ADAM-The appellant Tomlinson was not at the date of the conviction in question a person duly qualified to sell or to keep open shop for retailing, dispensing, or compounding poisons under the Pharmacy Act 1868. He was at the time an assistant or servant in the shop of a Dr Kelly, who was a duly qualified person under the Act.

On the two occasions libelled, the appellant, in the absence of Dr Kelly, sold poison to customers. For so doing he was convicted of a contravention of the 1st and 15th sections of the Act.

The question is whether the conviction is right.

The 1st section provides that it shall be unlawful for any person to sell poisons, unless such person shall have one or other of the qualifications therein specified; and the 15th section provides that any person who shall sell poison not being a person duly qualified under the Act, or shall do certain things, or shall fail to do certain other things there enumerated, shall for any such offence be liable in a penalty of £5.

Now it is not disputed that the appellant did in fact sell poison, and that he was not a person duly qualified to sell in terms of the Act.

Prima facie, therefore, it appears to me that he was guilty of the offence of which he has been convicted. But it was maintained that he was not the "seller" of the poison in the sense of the Act; that the "person" referred to and struck at by the Act was not the shopman or assistant who might have merely handed the poison over the counter, but the owner of the shop or business, being the person on whose behalf the sale was made.

I cannot adopt that view. It appears to me that the prohibition to sell is of univer sal application, and applies to all persons, excepting only those persons who are duly qualified to sell poisons in terms of the Act.

That the "person" referred to in the 1st and 15th sections is not the person only on whose behalf the contract or sale is made, appears to me to be clear from the terms of the 17th section.

That section declares that it shall be unlawful to sell poison unless certain regu lations therein specified are observed, and that any person selling poison otherwise than is therein provided shall be liable to a penalty, and that "for the purposes of this section, the person on whose behalf any sale is made by any apprentice or servant, shall be deemed to be the seller." The inference appears to me to be irresist ible, that in the other sections of the Act, the master of the apprentice or servant who in fact makes the sale of the poison is not to be deemed the seller; and if he is not to be deemed the seller there is no other person to whom the Act can possibly apply except the assistant, servant or apprentice who actually makes the sale.

v. Bremridge

1,

For these reasons I am of opinion that the appellant was properly convicted.

The present question was in terms decided in England in the case of the Pharmaceutical Society v. Wheeldon, 24 Q.B. D. 683, in the same way in which I propose to decide this case; and the same view of the statute was expressed by Lords Selborne and Blackburn in the case of the Pharmaceutical Society V. Provincial Society Association, 5 App. Cas. 857.

These are not perhaps authorities by which we are technically bound, but I concur in and adopt the reasoning in these cases, and I may say, seeing that this is a question of the construction of a British statute, that if I had doubted as to the proper construction of the Act, I should, without hesitation, have yielded to the authority of these eminent Judges.

Nor

LORD KYLLACHY-I regret that I am not able to concur in your Lordships' judgment. I have, I confess, great difficulty in reading this statute, as requiring more than that the seller of these poisonsthat is to say, the shopkeeper—the trader— the seller in the ordinary and legal sense as distinguished from the mere salesman, shall possess the requisite qualification. indeed have I been able to see how if the head of the establishment - the person responsible for its conduct-is duly qualified, it adds anything to the public security that the mere salesman who makes the sale, but may have nothing to do with the compounding of the drug, shall be also qualified.

At the same time I am not sorry that the majority of your Lordships see your way to a different conclusion. It would certainly be inconvenient that this statute should be differently construed in Scotland and in England, and that would, it appears, be the result if your Lordships took the view of the statute to which my judgment inclines. LORD KINCAIRNEY I concur in the opinion of the Lord Justice-Clerk and Lord Adam that the appeal should be refused, but I cannot say that I adopt that opinion without considerable hesitation. I have found the Pharmacy Act 1868 exceedingly difficult to construe. Of course its main object is to secure the safety of the public; but the doubtful point is, whether the scheme of the Act is to attain that object by endeavouring to secure that those who carry on the business of selling poisonous drugs in chemists and druggists' shops, shall be men of respectability and of adequate scientific knowledge, or by endeavouring to secure that their assistants also who may sell poison on their account shall be equally qualified and instructed; the whole difficulty apparently arising from the ambiguity or possible ambiguity of the words "sale" and "seller." The latter view has been adopted in England, and has been supported in elaborate judgments by Baron Pollock and Justice Hawkins in the case of Wheeldon, and in a very important judgment by Lord Selborne-concurred in on that point

by Lord Blackburn-delivered in the House of Lords in the case of The London and Provincial Supply Associaton-a case followed in our Courts in Gray v. Bremridge, July 20, 1887, 14 R. (J.C.) 10, and 24 S.L.R.

747.

These are very important judicial opinions on the construction of a British statute, unskilfully and obscurely expressed, and while I do not adopt everything that is said in them, their reasoning seems to me of great weight and force, and not having been able to form a very confident opinion as to the true construction of the statute I think myself entitled to defer to such weighty authority.

LORD STORMONTH DARLING-My view of the statute is the same as Lord Kyllachy's, but there is no question of principle involved, and I have no desire to detain the Court by stating my reasons at length, especially as I am conscious of some advantages in having the statute interpreted as the majority of your Lordships propose to do.

LORD JUSTICE-GENERAL-The judgment of the Court will be-"Refuse the appeal.' My own opinion coincides with the opinions of the Lord Justice-Clerk and Lord Adam.

Counsel for the Appellant-Guthrie-Ure. Agents-Simpson & Marwick, W.S.

Counsel for the Respondent-SalvesenT. B. Morison. Agent Peter Morison, S.S.C.

COURT OF SESSION.

Friday, June 1.

SECOND DIVISION.

WELSH v. EASTERN CEMETERY COMPANY AND GOVERNORS OF TRINITY HOSPITAL.

Process - Expenses - Several Defenders Separate Defences.

S and T having entered into a contract of excambion, S sold to W her property, of which W sold to C that part affected by the contract. W raised an action against T and C, averring that they each possessed from him ground in excess of their rights, and concluding for declarator of the contract, for demarcation of the ground in terms thereof, and for removal by the defenders from ground held in excess of their rights. The pursuer in his pleadings claimed from T ground which had never belonged to the pursuer, with which C had never been concerned, and which was not part of the excambed lands.

Held that the defenders were entitled to lodge separate defences, and also to separate expenses throughout.

In 1877 a contract of excambion was entered

into between The Lord Provost, Magistrates, and Council of the city of Edinburgh, as administrators and governors of the Trinity Hospital, on the one part, and Mrs Margaret Smith-Sligo, wife of Archibald Vincent Smith - Sligo of Inzievar House, near Dumfermline, and her husband, on the other part, with reference to the lands of Backdrum and Foredrum, which belonged to the parties respectively. The magistrates conveyed to Mrs SmithSligo certain parts of the lands of Backdrum, consisting of six separate pieces, all coloured blue, and each marked I. on a plan appended to the said contract, measuring in cumulo 4537 square yards and 3 square feet. Mrs Smith-Sligo and her husband conveyed to the magistrates certain parts of the lands of Foredrum, consisting of six separate pieces of ground, all coloured pink and each marked II. on the foresaid plan, and measuring in cumulo 4158 square yards. The testing clause of the said contract contained the declaration that the said Mrs Margaret Smith-Sligo and the said Archibald Vincent SmithSligo, with joint consent and assent as aforesaid, "hereby agree to give up that stripe of ground, part of the said lands of Foredrum, coloured yellow on said plan, for the purpose of forming part of and widening the Easter Road.

In 1879 John Welsh, S.S.C., acquired by disposition from Mr and Mrs Smith-Sligo their property in the neighbourhood, and accordingly became possessed under the contract of excambion of the six pieces of Backdrum described above. The disposi tion of the property excepted the strip of ground mentioned in the contract of excambion.

In 1882 John Welsh sold to the Edinburgh Eastern Cemetery Company, Limited, certain ground, including a portion of the subjects affected by the excambion, measuring 9 acres, as shown on a relative plan. It was a condition "that in the event of the excambion arranged with Trinity Hospital in 1877 being carried out," the pursuer "shall be at the expense of taking down and rebuilding such parts of the existing walls as may be necessary to give effect to the excambion, and that such rebuilt portions shall be of at least the same value and character as the existing walls, or that, at the option of the company," the pursuer "shall pay to it a sum equivalent to what such removing and rebuilding would have cost."

Subsequent experience showed that the relative plan was in some respects incorrect, and Mr Welsh conceiving that the Cemetery Company were in possession of ground in excess of their right, and of the intention of parties, raised this action against the Cemetery Company and the Governors of Trinity Hospital.

He asked declarator (1) that the lands of Foredrum and Backdrum were held subject to the contract of excambion; (2) that authority be granted to a man of skill to mark off the lands in terms of the contract; (3) the defenders ought and should be decerned and ordained, by decree of our

66

said Lords, to cede possession to the pursuer of, and to flit and remove from, the area or areas of ground held by them respectively, to which, in the course of the process to follow hereon, the pursuer may be found to have right under the said contract of excambion, and to execute, or concur with him in executing, all such deeds, instruments, or writings, as may be necessary for carrying out the provisions of the said contract of excambion, and particularly a deed or deeds of discharge, freeing and relieving the property of the pursuer of and from the burdens and provisions of the said contract of excambion in all time coming; (4) for joint payment by the defenders of the expenses of ascertaining the boundaries."

He averred-"(Cond. 5) At the date of the before-mentioned dispositions, the arrangements embodied in the said contract of excambion had not been carried out, except to a very small extent. The pursuer had given up to the defenders, the Governors of Trinity Hospital, a portion of the area belonging to him at the northeast corner of his property, and had received from them an area of somewhat larger extent immediately adjoining thereto. With that exception the defenders, the said Edinburgh Eastern Cemetery Company, possess the lands of Foredrum and Backdrum, as the said lands were enclosed and possessed before the execu tion of the said contract of excambion, and the present action has been rendered necessary to have the rights of parties under the said contract of excambion determined and defined, that possession may be obtained of the areas to which they are respectively entitled, and also that the said areas may be discharged and relieved from the other provisions of the said contract of excambion in all time coming. The pursuer, under an arrangement with the defenders (Trinity Hospital), whereby he was to receive ground of an equivalent extent, gave up a portion of ground belonging to him lying along the east side of the Easter Road, and in addition to that piece of ground, the defenders, the Edinburgh Eastern Cemetery Company, Limited, are at present in possession of ground belonging to the pursuer, in excess of what was conveyed to them by the foresaid disposi tion in their favour to the extent of 404 decimal parts of an acre."

The two sets of defenders lodged defences. They explained that the ground affected by the contract of excambion belonged solely to them, that the pursuer was no longer interested therein, that they were agreed as to the disposal of the ground, and did not desire to have the contract implemented in the meantime. The Cemetery Company denied that they possessed an excess of ground. In addition the Governors of Trinity Hospital averred" It was further agreed by the said contract of excambion that Mr and Mrs Smith Sligo should give up the strip of ground coloured yellow, for the purpose of forming part of and widening the Easter Road. The said strip was further excepted from the dis