Recusants not to practise physic. Apothecary exempted from offices. 5 H. 8. c. 6. Surgeons ex. empted from offices. 18 G. 2. c. 15. 2 Haw. c. 10. $43. 32 H. 8. c. 40. Whether phy sicians are exempted from offices. They cannot sue for fees. BY 3J. 1. c.5. §8. No recusant convict shall practise physic, nor use the trade of an apothecary, on pain of 1007. By 6 & 7 W. 3. c. 4. § 2. Apothecaries within London and seven miles thereof, and also apothecaries in any other place, who have served seven years' apprenticeship, shall be exempted from the office of constable, scavenger, overseer of the poor, and all other parish, ward, and leet offices, and from being put on any jury or inquest. By the 5 H. 8. c. 6. Surgeons shall be discharged of the constableship, watch, and all manner of office bearing any armour, and also of all inquest and juries within London. And by the 18 Geo. 2. c. 15. § 10. All freemen of the surgeons' company in London shall be exempted from the office of constable, scavenger, overseer of the poor, and other parish, ward, and leet offices, and from serving on juries and inquests. Mr. Hawkins, speaking of the former of these statutes, says, it seems by the equity thereof, and the ancient custom of the realm, all surgeons have been allowed the like privilege, that is, whether in London or elsewhere. By the 32 H. 8. c. 40. § 1. The president of the commonalty and fellowship of the faculty of physic in London, and the commons and fellows of the same, shall be discharged of watch and ward there, and shall not be chosen constable or any other officer. Yet it seems to have been holden that the equity of this act doth not extend to other physicians not mentioned in it; perhaps for this reason, because physicians have no such special custom for their discharge as surgeons are said to have. 2 Haw. c. 10. § 44. And it seemeth that a practising physician, being chosen constable in pursuance of a custom in respect of his lands in a town, has no remedy for his discharge; for that there are no precedents of this kind, and his calling is private; yet if he be chosen constable of a town, which hath sufficient persons besides to execute this office, and no special custom concerning it, perhaps he may be relieved by the king's bench. 2 Haw. c. 10. 41. It is clear that a physician cannot maintain an action for his fees; for, like those of a barrister, the fee is a quiddam honora rium. Chorley v. Bolcot. 4 T. R. 317. With respect to surgeons, however, it is different. They may maintain an action for their care and attendance and for medicines found and provided. If however a surgeon furnishes a bill to his patient and leaves a blank for his charge for his attendances; if the patient pay a certain sum on that account, as the surgeon made no specific. By 1 Mary, sess. 2. c. 9. 6. All justices, mayors, sheriffs, Searching for bailiffs, constables, and other officers in London, shall assist the drugs. president of the college of physicians, and persons by them authorised, in searching for faulty apothecary wares. If a physician give a person a potion without any intent of doing Physician killhim any bodily hurt, but with intent to cure or prevent a disease, ing a patient. and contrary to the expectation of the physician it kills him, this is no homicide; and the like of a surgeon. And I hold their 1 Hale, 429. opinion (says Ld. Hale) to be erroneous, that think if he be no licensed surgeon or physician that occasioned this mischance, that then it is felony; for physic and salves were before licensed physicians and surgeons; and therefore if they be not licensed according to the statute of the 3 H. 8. c. 11. or 14 & 15 H. 8. c. 5. they are subject to the penalties in the statutes; but God forbid that any mischance of this kind should make any person not licensed guilty of murder or manslaughter. These opinions therefore may serve to caution ignorant people not to be too busy in this kind in tampering with physic, but are no safe rule for a judge or jury to go by. company. Stat. 55 G. 3. c. 194. " for better regulating the practice of 55 G. 5. c. 194. Apothecaries throughout England and Wales;" § 1. recites the Charter by first charter of king James the first, to the apothecaries com- Jac. I. to the pany, and that some of the clauses and provisions contained apothecaries' in the said charter, so far as the same regard the said soeiety of apothecaries, have been found inadequate for the purposes thereby intended, and enacts, that the said charter of king James the first, and all the powers, penalties, regulations, Charter con&c. therein contained (except such parts thereof as are hereby firmed, except altered, varied, or repealed), shall be and the same is hereby de- as altered by clared to be in full force, &c. this act. By § 2. So much of recited charter as directs the master and Master, warwardens, &c. to enter the shops of apothecaries and to examine dens, &c. emtheir medicines, &c. and to impose penalties repealed. § 3. And in lieu thereof, the master, wardens, and society of apothecaries, and their successors, or any of the assistants or person properly qualified [viz. § 4. for London and thirty miles around, being a member of the society of apothecaries of at least ten years' standing; and all other parts of England and Wales, an apothecary in actual practice for at least ten years,] to be by the master and wardens nominated, not being fewer in number than two persons, may at all seasonable times, in the day-time, as often as to the said master and wardens it shall seem expedient, enter into any shop of any apothecary in England or Wales, and search, survey, prove, and determine, if the medicines, simple or compound, wares, drugs, or things whatsoever therein contained, and belonging to the art or mystery of apothecaries, be wholesome, meet, and fit for the cure, health, and ease of his majesty's subjects; and all such medicines, &c. which they shall find false, unlawful, deceitful, stale, unwholesome, corrupt, pernicious. or hurtful, shall and may burn, or otherwise destroy; and also shall report to the master, wardens, and assistants of the said society, the name of such person as shall be found to have the same in powered to enter shops of apo. thecaries, &c. and examine drugs, &c. 55 G. 3. c. 194. possession; and the said master, wardens, and assistants, shall and may impose and levy the following fines and penalties upon every person whose names shall be so reported to them, as hereinafter mentioned, for the first offence 5l., for the second offence 10. and for the third and every other offence 201. Penalties. Penalty on apothecaries refusing to compound, or unfaithfully compounding medicines prescribed. Persons not to § 5. And whereas it is the duty of every person using or exercising the art and mystery of an apothecary, to prepare with exactness, and to dispense such medicines as may be directed for the sick by any physician lawfully licensed to practise physic by the president and commonalty of the faculty of physic in London, or by either of the two universities of Oxford or Cambridge; therefore, for the further protection, security, and benefit of his majesty's subjects, and for the better regulation of the practice of physic throughout England and Wales, it is enacted, that if any person using or exercising the art and mystery of an apothecary, shall at any time knowingly, wilfully, and contumaciously refuse to make, mix, compound, prepare, give, apply, or administer, or any way to sell, set on sale, put forth, or put to sale to any person or persons whatever, any medicines, compound medicines, or medicinable compositions, or shall deliberately or negligently, falsely, unfaithfully, fraudulently, or unduly make, mix, compound, prepare, give, apply, or administer, or any way sell, set on sale, put forth, or put to sale to any person or persons whatever, any medicines, compound medicines, or medicinable compositions, as directed by any prescription, order, or receipt, signed with the initials in his own hand-writing, of any physician so lawfully licensed to practise physic, such person or persons so offending shall, upon complaint made within twenty-one days by such physician, and upon conviction of such offence before any of his majesty's justices of the peace, unless such offender can shew some satisfactory reason, excuse, or justification in this behalf, forfeit, for the first offence, the sum of 5l.; for the second offence the sum of 10l.; and for the third offence, he shall forfeit his certificate, and be rendered incapable in future of using or exercising the art and mystery of an apothecary, and be liable to the penalty inflicted by this act upon all who practise as such without a certificate, in the same manner as if such party so convicted had never been furnished with a certificate enabling him to practise as an apothecary; and such offender so deprived of his certificate shall be rendered and deemed incapable in future of receiving and holding any fresh certificate unless the said party so applying for a renewal of his certificate, shall faithfully promise and undertake, and give good and sufficient security, that he will not in future be guilty of the like offence. 14. And to prevent any person from practising as an apopractise as apothecary, without being properly qualified to practise as such, it is enacted, that after the 1st day of August, 1815, it shall not be lawful for any person (except persons already in practice as such) (a), to practise as an apothecary in any part of England or thecaries, &c. without due examination. (a) The house apothecary of an infirmary, who officiates in mixing medicines for the patients of the charity, but for no others, is a person already in practice as an apothecary within § 14. of this act, and needs not obtain a certificate, nor serve an apprenticeship of five years, as required by the § 15. Wogan v. Somerville, 7 Taunt. 4. 1. 1 Moore, C.P. 102. Wales, unless he shall have been examined by the court of ex- 55 G. 5. c. 194. aminers, or the major part of them, and have received a certificate of his being duly qualified to practise as such from the said court of examiners or the major part of them, who are hereby authorised and required to examine all persons applying to them, for the purpose of ascertaining the skill and abilities of such persons in the science and practice of medicine, and their fitness and qualification to practise as an apothecary; and the said court of examiners, or the major part of them, are hereby empowered either to reject such person, or to grant a certificate of such examination, and of his qualification to practise as an apothecary as aforesaid: provided always, that no person shall be admitted to such examination until he shall have attained the full age of twenty-one years. monials. § 15. Provides and enacts, that no person shall be admitted to Applicants for any such examination for a certificate to practise as an apothe- examination to cary, unless he shall have served an apprenticeship of not less produce testithan five years to an apothecary, and unless he shall produce testimonials to the satisfaction of the court of examiners, of a sufficient medical education, and of a good moral conduct. § 20. Enacts, that if any person (except such as are then ac- Penalty for tually practising as such) shall, after the 1st August, 1815, act or acting without practise as an apothecary in any part of England or Wales, with- a certificate. out having obtained such certificate as aforesaid, every person so offending shall, for every such offence, forfeit the sum of 20l. ; and if any person (except such as are then acting as such, and excepting persons who have actually served an apprenticeship as aforesaid) shall after the said 1st of August, 1815, act as an assistant to an apothecary to compound and dispense medicines, without having obtained such certificate as aforesaid, every person so offending, shall for every such offence forfeit the sum of 51. Where a defendant was sued for a penalty under this section of the statute, and contended that he was within the exception, as having prior to 1st August, 1815, actually practised as an apothecary: the court of K. B. held that it was proper, in summing up to the jury, for the Judge to refer to the 5th section of the act, as describing the duty of an apothecary to be to make up the prescriptions of physicians; and it appearing that the defendant never had, or could have done so, prior to August 1st, 1815, that such total incapacity was cogent evidence to be left to the jury, and that they did right to find that he had never practised as an apothecary, although, in fact, he had on many occasions administered medicines to various patients prior to that period. The Apothecaries' Company v. Warburton, 3 B. & A. 40. § 21. And no apothecary shall be allowed to recover any Apothecaries charges claimed by him in any court of law, unless he shall prove not to recover on the trial, that he was in practice as an apothecary prior to or charges, unless on the 1st of August, 1815, or that he has obtained a certificate duly licensed. to practise as an apothecary, from the said master, wardens, and society of apothecaries as aforesaid. 24. Enacts, that all sums of money which shall arise from Application of the granting of certificates of examination, shall be appropriated monies arising and disposed of by the said master, wardens, and society of apofrom certificates. thecaries in such manner as they shall from time to time direct and deem most expedient. 55 G. 3. c. 194. Application of monies ari ing from penalties Recovery of fines and penalties. Distress not unlawful for want of form. Act not to affect chemists and druggists. § 25. And all sums arising from conviction and recovery of penalties for offences committed against this act, shall be applied and disposed of in manner following, (viz.) one-half to the informer, and one-half thereof to the said master, wardens, and society of apothecaries, to be disposed of in such manner as they shall deem most expedient. § 26. Enacts, that all penalties and forfeitures by this act imposed (the manner of levying and recovering whereof is not otherwise directed shall, if they exceed the sun of 5l., be recovered by action, in the name of the master, wardens, and society of apothecaries of the city of London, in any of his majesty's courts of record in England or Wales, &c.; and if such penalty or forfeiture shall amount to less than the sum of 5l., the same shall be levied and recovered by distress and sale of the goods and chattels of the offender, by warrant under the hand and seal of any justice of the peace acting for any county, city, town, or place where the offence shall be committed (which warrant such justice is hereby empowered and required to grant upon the confession of the party, or upon the evidence of any credible witness upon oath, and which oath such justice is hereby empowered to administer); and the overplus (if any) of the money arising by such distress and sale shall be returned upon demand to the owner of such goods and chattels, after deducting the costs and charges of making, keeping, and selling the distress; and in case sufficient distress shall not be found, or such forfeitures and penalties shall not be paid forthwith, it shall be lawful for such justice, and he is hereby authorised and required, by warrant under his hand and seal, to cause the offender to be committed to the common gaol for the county, city, town, or place, where the offence shall be committed, there to remain without bail or mainprise, for any time not exceeding one calendar month, unless such penalties and forfeitures, and costs, shall be sooner fully paid and satisfied. § 27. And where any distress shall be made for any sum of money to be levied by virtue of this act, the distress itself shall not be deemed unlawful, nor the party making the same be deemed a trespasser on account of any defect or want of form in the notice or information, summons, conviction, warrant, or distress, or other proceeding relating thereto; nor shall the party distraining be deemed a trespasser ab initio, on account of any irregularity which shall be afterwards done by the party so distraining; but the person aggrieved by such irregularity, may recover full satisfaction for the special damage in an action upon the case. in § 28. Provides, that nothing in this act contained shall extend, any way to affect the trade or business of a chemist and druggist, in the buying, preparing, compounding, dispensing, and vending drugs, medicines, and medicinable compounds, wholesale and retail; but all persons using or exercising the said trade or business, or who shall or may hereafter use or exercise the same, may use, exercise, and carry on the same trade or business in such manner, and as fully and amply to all intents and purposes, as the same trade or business was used, exercised, or carried on by chemists and druggists before the passing of this act |