By s. 17 of the Pharmacy Act, 1868, it shall be unlawful (under certain penalties on conviction) to sell any poison, unless the box, vessel, &c., in which it is contained be distinctly labelled with the name of the article, and the word "poison," and with the name and address of the seller of the poison; it shall be unlawful to sell any of the poisons in the first part of sch. A. (prussic acid being one) to any person unknown to the seller, unless introduced by some person known to the seller; but none of the provisions of this section shall" apply to any medicine supplied by a legally qualified apothecary to his patient, nor to any article when forming part of the ingredients of any medicine dispensed by a person registered under this Act; provided such medicine be labelled in manner aforesaid with the name and address of the seller, and the ingredients thereof be entered, with the name of the person to whom it is sold or delivered, in a book to be kept by the seller for that purpose."

The appellant, a person registered under the Act, was charged with contravening the enacting part of the section. It appeared at the hearing that J., a person unknown to the appellant, and not introduced by any person known to him, came into the appellant's shop, and asked to have a prescription made up, which was written, in pencil, in the usual style of medical prescriptions, and had "Mrs. Newton" at the bottom, as the person for whose use it was intended, and the initials "R. M. L.," which were the initials of a legally qualified medical practitioner. The appellant dispensed the prescription by putting two drachms of prussic acid into a 2 oz. bottle and filling it up with rose water, according to the meaning of the prescription; and the appellant copied the prescription into a book, in which he entered all the prescriptions he made up, with the name "Mrs. Newton." J. took the bottle, and paid the appellant's demand. The bottle was labelled with the name and address of the

appellant distinctly written. The prescription was one that might be ordered for a lotion. There was no evidence whether there was or was not such a person as Mrs. Newton; but the appellant bona fide and reasonably believed that a medical man had prescribed the lotion for a Mrs. Newton, and that she was the person for whose use he was selling it :

Held, that the medicine or lotion was a medicine within the meaning of the exception in s. 17, of medicine dispensed by a registered person;" that the case was therefore taken out of the enacting part of the section as to poisons; that the appellant had complied with the proviso; and was, therefore, not liable to be convicted.

Semble, that there cannot be two separate convictions under different parts of the enactment for one and the same act.

CASE stated by Justices of Sussex under 20 & 21 Vict. c. 43.

An information was preferred under s. 17 of the Pharmacy Act, 1868 (31 & 32 Vict. c. 121), by the respondent, an inspector of police, against the appellant, a pharmaceutical chemist, duly registered under the Act, charging that the appellant, on the 11th of August, 1869, at Worthing, did unlawfully sell a certain poison of those which are in the first part of the schedule A. to the Pharmacy Act, 1868, to wit, prussic acid, to a certain person unknown to the seller, and not introduced by some person known to the seller, to wit, to one Ansell Johnson. (1)

(1) 31 & 32 Vict. c. 121, s. 17:-"It shall be unlawful to sell any poison, either by wholesale or by retail, unless the box, bottle, vessel, wrapper, or cover in which such poison is contained be distinctly labelled with the name of the article and the word poison, and with the name and address of the sellers of the poison; and it shall be unlawful to sell any poison of those which are in the first part of schedule A. to this Act, or may hereafter be added thereto, under s. 2 of this Act, to any person unknown to the seller, unless introduced by some person known to the seller; and on every

The following facts were proved or admitted.

On the 11th of August, 1869, one Ansell Johnson, being a person unknown to the appellant, and not introduced to the appellant by any person known to him, came into the shop of the appellant, the appellant and his assistant being there, and asked to have made up a prescription, which was written in pencil, and is as follows:-" R. acid. hydrocyan. Scheele's, 3ij, aq. rosæ, 3ij, m ft lotio ter die applic.-R. M. L. Mrs. Newton, Augt. 11th, 1869." The meaning of the name "Mrs. Newton" in the prescription was, that the prescription was for the use of Mrs. Newton. There is a legally qualified medical practitioner having the initials "R. M. L."

The appellant's assistant dispensed the prescription by putting two drachms of hydrocyanic acid into a two-ounce bottle, and filling up the bottle with rose water, according to the meaning of the prescription. The appellant made an entry in his prescription book, "Newton, Mrs.," and then copied the prescription verbatim. He also indexed the entry by inserting the name "Newton," and the page, in the index to the book. The prescription book is a book in which the appellant enters all prescriptions he makes up. Johnson paid the appellant's claim, and took the bottle and its contents away.

sale of any such article the seller shall, before delivery, make, or cause to be made, an entry in a book to be kept for that purpose, stating, in the form set forth in schedule F. to this Act, the date of the sale, the name and address of the purchaser, the name and quantity of the article sold, and the purpose for which it is stated by the purchaser to be required, to which entry the signature of the purchaser and of the person, if any, who introduced him, shall be affixed; and any person selling poison otherwise than is herein provided shall, upon a summary conviction before two justices of the peace in England or the sheriff in Scotland, be liable to a penalty not exceeding 51 for the first offence, and to a penalty not exceeding 101. for the second or any subsequent offence, and for the purposes of this section the person on whose behalf any sale is made by any apprentice or servant hall be deemed to be the seller; but the provisions of this section, which are solely applicable to poisons in the first part of the schedule A. to this Act, or which require that the label shall contain the name and address of the seller, shall not apply t articles to be exported from Great Britain by wholesale dealers, nor to sales by wholesale to retail dealers in the ordinary course of wholesale dealing, nor shall any of the provisions of this section apply to any medicine supplied by a legally qualified apothecary to his patient, nor apply to any article when forming part of the ingredients of any medicine dispensed by a person registered under this Act; provided such medicine be labelled in the manner aforesaid, with the name and address of the seller, and the ingredients thereof be entered, with the name of the person to whom it is sold or delivered, in a book to be kept by the seller for that purpose

The bottle was labelled as follows: "Caution. For external use. The lotion to be used three times a day. Mrs. Newton. H Berry, dispensing chemist, member of the pharmaceutical society, 58, Montague Street, Worthing."

Hydrocyanic acid (Scheele's) is prussic acid. The prescription is one that might be ordered for a lotion. Rose water, by itself, is not a medicine.

No evidence was given that there was or was not any such person as Mrs. Newton. Ansell Johnson, a witness for the prosecution, refused to answer the two questions: "Did he buy it for Mrs. Newton? Did he buy it for himself?" on the ground that by answering he might tend to criminate himself on a charge of attempting to commit suicide, on which he at the time stood remanded.

The Pharmacy Act, 1869 (32 & 33 Viet. c. 117), received the royal assent on the day of the alleged offence. (1)

The following points were raised on behalf of the appellant: That the appellant had not sold prussic acid pure and simple, but a mixture or compound of prussic acid and rose water. That that mixture was a medicine, and the prussic acid sold formed an ingredient of that medicine, and was therefore within the exception contained in s. 17 of the Pharmacy Act, 1868. That the name "Mrs. Newton" indicated the name of the person to whom the medicine was sold or delivered.

The following points were raised on behalf of the respondent: That the thing sold was not a medicine, but a poison partially diluted. That the name "Mrs. Newton" entered by the appellant was not the name of the person to whom the article was sold or delivered, but only the name of a person for whose use it was alleged to be required. That the book in which the entry was made was not a book kept for that purpose, inasmuch as it was kept for the purpose of copying therein prescriptions of all sorts.

The justices convicted the appellant of the said offence in a penalty of 10s., and 17. 1s. costs.

The questions of law are:-1. Whether a mixture of prussic acid and rose water is a poison within the meaning of s. 17 and of schedule A., part 1, of the Pharmacy Act, 1868. 2. Whether a mixture of prussic acid and rose water is a medicine within the meaning of s. 17. 3. Whether, according to the facts stated, the appellant complied with the requirements of the proviso at the end of s. 17. 4. Whether, according to the facts stated, the appellant had committed the offence with which he was charged.

There was another case stated, upon s second conviction of the appellant, on the same facts, for unlawfully selling poison without labelling the bottle "poison."

(1) See post. p. 181, n.

Quain, Q.C. (with him Bullock), for the appellant. There are two convictions against the appellant on one and the same state of facts, for contravening different parts of the same enactment, 31 & 32 Vict. c. 121, s. 17, and one of the questions which will arise, if the convictions are upheld on the merits, is, whether there can be two convictions for one and the same act. The first conviction is for selling poison to a person unknown to the seller, and not introduced by a person known to him, and the other is for selling poison without having labelled the bottle "poison." But the question on the merits is the same, viz., whether this was a "medicine" dispensed by a registered person; and whether, if it was, the appellant brought himself within the proviso, by what he had done. First, it is a medicine, though for external use, being, as it is found in the case, proper for a lotion. Secondly it is dispensed, that is, it is made up and sold across the counter with directions for use, by a person registered under the Act. Thirdly, was the bottle labelled "in manner aforesaid?" This means only "distinctly," with the name of the seller, as is shewn by 32 & 33 Vict. c. 117, s. 3 (1), which came into operation the very day this offence is alleged to have been committed; and it might be well contended that the conviction ought to be under that section. Then has the appellant complied with the last part of the proviso? He has entered the ingredients in his book in which he enters all the prescriptions dispensed, and it was quite unnecessary that he should keep a book for the special purpose of entering those prescriptions only which contain poison. Lastly, he has entered the name of Mrs. Newton as the person to whom he sold it. The words are " sold or delivered," therefore it is sufficient to enter the name of the person for whom the prescription is prepared and sold, although delivered to a third person. As often as not, a prescription would be sent by a servant to be made up for the master or mistress; and the chemist has complied with the proviso if he enters the name of the person which appears on the prescription as the patient. It is impossible for him to ascertain whether or not there is such a person as the person named in the prescription, he must give credit to the initials which he finds to the prescription. There is no doubt that the appellant acted in good faith; and it is not found in the case that he acted criminally nor even negligently.

(1) 32 & 33 Vict. c. 117, s. 3:-"Nothing contained in s. 17 of the Pharmacy Act, 1868, shall apply to any medicine supplied by a legally qualified medical practitioner to his patient, or dispensed by any person registered under the said Act, provided such medicine be distinctly labelled with the name and address of the seller, and the ingredients thereof be entered with the name of the person to whom it is sold or delivered, in a book to be kept by the seller for that purpose."

Lumley Smith, for the respondent. It is most important that the present state of the law should be declared; it may, therefore, be conceded that the Act of 1869 (32 & 33 Vict. c. 117) had come into force, or at all events, that s. 3 of that Act shews that "distinctly is all that is to be understood by "in manner aforesaid," in s. 17 of the other Act. The appellant sold prussic acid, and therefore was selling poison, unless he can bring himself within the latter part of the section. What he sold was merely diluted poison, and not a medicine; rose water, it is found in the case, has no medicinal virtue whatever. No doubt there is a difficulty in saying a lotion is not a medicine, but then it must be something more than mere diluted prussic acid. Again, the appellant does not shew that this was a prescription written by a medical man, all that is found is that there is a medical practitioner with the initials "R. M. L." Nor is it shewn that there was such a person as Mrs. Newton. [LUSH, J. Must we not take it that the appellant bonâ fide believed that this was a prescription for a lotion for Mrs. Newton?]

Bona fide belief can scarcely apply to a case of this sort; the chemist is liable to the penalties of this section, if the poison is sold by his apprentice or servant. The object of the section is to prevent and absolutely forbid the sale of poisons except with certain precautions. What was sold was a poison, and it lies on the appellant not only to shew that it was part of the ingredients of medicine, but of medicine for Mrs. Newton, and that the prescription was really written by a qualified person.

[LUSH, J. It would impose a great difficulty in the way of chemists, if in such a case as this the chemist is bound to shew that a prescription which he has dispensed was really written by the physician whose initials it bears.]

To hold otherwise would open the door to the very dangers which the Act was intended to prevent. The chemist can always refuse to dispense any medicine containing a dangerous quantity of poison, unless the person asking for it is known to him or is introduced by a person known to him. Otherwise, a person wishing to commit suicide, or to use a poison for some other improper purpose, need only forge a false prescription and be supplied with it at once. In the next place, the name of Mrs. Newton entered in the book, was not the name of the person to whom it was sold or delivered. The object of the Act was to preserve evidence against the person who actually received the poisonous articles.

[HANNEN, J. Is that so; the section says the name of the person to whom it was sold or delivered.]

Supposing this to have been the sale of poison simply, the signature of the person receiving it would have had to be entered; so the person to whom the medicine is sold

or delivered must mean the person actually receiving it.

[Quain, contrà. The signature required is the name of the purchaser.]

That must mean the person acting as purchaser, whether for himself or another; how can any one sign who is not present? In this case, therefore, the name of Johnson ought to have been entered in the book. Then, moreover, the book is the appellant's general prescription book, and not a book kept for the purpose of entering the sale of poisonous articles. There is no doubt that a separate book must be kept for the poisons pure and simple. With respect to the second case, precisely the same point arises, for the appellant was bound to label the bottle 'poison," unless he brings himself within the exception.

[LUSH, J. The language of the section does not suggest to my mind that it was the intention to make a person liable to a double penalty for one act.]

The point is of little consequence, for the two convictions must stand or fall together. Quain, Q.C., in reply.

[LUSH, J. The difficulty is that there is no finding upon the case, that the appellant could reasonably have believed that this was a prescription given to Mrs. Newton by a medical man, whose initials it purported to bear. It appears to have come to him in a very loose shape,-a prescription, directing the composition of very poisonous ingredients, written in pencil, bearing initials which are not found to have been or to have appeared like the initials of the medical man whose name they were intended to represent. Supposing the appellant acted upon this prescription without the least inquiry, and handed the poisonous medicine over the counter, when he ought, as a reasonable, prudent man, to have made inquiries, I can conceive that the conviction might be sustained, and the appellant not to have brought himself within the proviso. On the other hand, I can hardly think the proviso meant to cast upon every chemist the duty, at his peril, of ascertaining that the prescription presented is genuine. But it is obvious, I think, that every one who is entrusted with the sale of these poisonous things, is to take all reasonable care.

HANNEN, J. There is the same difficulty about the person to whom the appellant sold the medicine; there is no finding that there was such a person as Mrs. Newton, nor that the appellant believed there was such a person.

LUSH, J. It is impossible for us to answer the questions submitted to us one way or the other, without drawing inferences of fact, which, if it was intended the Court should draw, we must decline.

L. Smith intimated that the object of the prosecution was to obtain an enunciation of the law, and that the conviction of the appellant was of no importance.]

LUSH, J. We need not, then, hear Mr. Quain further. I should not be disposed to draw any inferences of fact; but assuming, under the circumstances, that we are to take the case as if the justices had found as a fact that the appellant did reasonably believe, when he was dispensing this prescription, that he was making up a prescription which had been actually given by a medical man to Mrs. Newton for a lotion, as it purported to be,-upon that hypothesis, I am of opinion that the appellant has brought himself within the proviso in s. 17. The first part of the section, the enacting part, applies to the sale of poisons, and amongst the poisons enume rated is prussic acid. I observe that the schedule seems to treat all the poisons as sold in their simple state, or in some form of preparation alone; and it does not appear to contemplate any of them being mixed up with any other ingredients, it applies to them pure and simple. But, taking the general sweeping words of the enactment alone, they would have prohibited any medical man, perhaps, from dispensing a prescription that contained a poison. In order to obviate that the proviso is inserted, which says that none of the provisions of this section shall" apply to any medicine supplied by a legally qualified apothecary to his patient, nor apply to any article when forming part of the ingredients of any medicine dispensed by a person registered under this Act." The first question is, was this mixture a medicine? This was scarcely disputed by the counsel for the respondent. The word "medicine" is comprehensive enough to include everything which is to be applied for the purpose of healing, whether externally or internally. According to the prescription, this mixture was intended to be used as a lotion, and the case states that it might properly be used as a lotion. The proviso seems to put upon the same footing a legally qualified practitioner supplying the thing to his patient, and a registered chemist dispensing such a thing. If a duly qualified medical man had directly supplied or delivered to his patient this compound of prussic acid and rose water, as a lotion, he would have been protected under the proviso; and we must apply the same rule to a registered chemist, making up that compound from a prescription, which is what I understand to be involved in the word "dispensing,”—the making up something that is prescribed, and selling it with directions how it is to be used. Then did this prussic acid form part of the ingre dients of a medicine dispensed by a registered person? It did strike me at first, on reading the clause, that it applied only to cases where the poisonous article is one of several ingredients, so that perhaps its poisonous qualities are modified in a more or less degree by the other ingredients; but then I think, by giving that interpretation, we should make it very difficult to apply the Act. We cannot enter