A druggist, the Supreme Court of Louisiana says, means “one who sells drugs without compounding or preparing them: and so is a more limited term than apothecary (459).”

A commission merchant, dealing principally in alcohol, is not a druggist, within the meaning of the Massachusetts’ Act, regulating the sale of alcohol by druggists (460); and although whiskey may be sold by druggists in comparatively small quantities as medicine, and doubtless a great many people so take it, still it was held that fifty barrels of whiskey remaining in a bonded warehouse at the time of his death would not pass under the will of a wholesale and retail drug­gist be­queath­ing his stock of medical drugs, etc. The Court considered fifty barrels of whiskey wholly dis­pro­por­tion­ate to the ordinary stock of medicine and drugs kept on hand by the testator—too much sack for the bread (461). One may be an apothecary or druggist although he does not actually compound his medicines (462).

In the early days in England, the grocers, or poticaries, who formed one of the trade guilds of London, united with their ordinary business the sale of such ointments, simples "175" and medicinal compounds as were then in use. In the days of Henry VIII., the medical department of the grocers’ trade being greatly increased, shops were established for the exclusive sale of drugs and medicinal and all kinds of chemical preparations. We have a graphic description of one of these apothecaries about the days of “Good Queen Bess,” in the words of the prince of English dramatists:

Until 1868, any person whatever might open what is called a chemist’s shop in England, and deal in drugs and poisons. In that year, however, the Pharmacy Act was passed, which prohibits any person engaging in the business of, or assuming the title of, Chemist and Druggist, or dispensing chemicals or drugs, unless he be registered under that Act. And to be registered one must pass an examination in Latin, English, arithmetic, prescriptions, practical dispensing, pharmacy, materia medica, botany and chemistry.

Under the Ontario Act (463) there is a College of Pharmacy, managed by a Pharmaceutical Council who grant certificates of competency to practise as pharmaceutical chemists, prescribe the subjects on which candidates are to be "176" examined, and arrange for the registration of chemists. No one, save those registered or their employeÉs, is authorized to compound prescriptions of legally authorized medical practitioners. The Act, however, does not apply to medical practitioners. But, save as aforesaid, no one can retail, dispense, or compound poisons, or sell certain articles named, or assume or use the title of “Chemist and Druggist,” or “Chemist,” or “Druggist,” or “Pharmacist or Apothecary,” or “Dispensing Chemist or Druggist,” unless he has complied with the Act.

The Code Napoleon recognizes two classes of vendors of drugs and medicines, apothecaries and druggists. The former, who are assumed to be phar­ma­ceut­i­cally educated, are alone allowed to sell compounded medicine, the latter who are classed with grocers are only permitted to sell drugs of a simple character in bulk and at wholesale (464). In the United States, wherever statutes do not otherwise direct, apothecaries and druggists are put upon the common law footing of provision vendors, and may sell in any quantities articles in which they deal.

A druggist is held to a strict accountability in law for any mistake he may make in compounding medicine or selling his drugs. By the statute law of England it is declared to be the duty of every person using or exercising the art or mystery of an apothecary to prepare with exactness, and to dispense, such medicines as may be directed for the sick by any physician (465). And by the same Act, for the further protection, security, and benefit of George the Third’s subjects it was declared, that if any one using the art or mystery of an apothecary, should deliberately or negligently, unfaithfully, fraudulently or unduly make, mix, prepare or sell any medicines, as directed by any prescription signed by any "177" licensed physician, such apothecary shall, on conviction before a Justice of the Peace, unless good cause be shown to the contrary, forfeit for the first offence £5, for second, £10, and for third he shall forfeit his certificate. But apart from any statute, whenever a druggist or apothecary (using the words in their general sense) sells a medicine, he impliedly warrants the good quality of the drugs sold; and besides that, he warrants that it is the article that is required and that it is compounded in every prescription dispensed by him secundum artem. Like the provision dealer, the pharmaceutist is bound to know that the goods he sells are sound, i.e., competent to perform the mission required of them, and being so presumed to know, he warrants their good qualities by the very act of selling them for such. The rule, “Let the buyer beware,” does not apply.

In some way Fleet and Simple got cantharides mixed with some snake root and Peruvian bark. Unfortunately Hollenbeck, requiring some of this latter mixture, bought this that these druggists had, took it as a medicine, and in consequence suffered great pain, and had his health permanently impaired. He sued for damages, and recovered a verdict for $1,140. The defendants asked for a new trial, but the Court refused it saying, “Purchasers have to trust to a druggist. It is upon his skill and prudence they must rely. It is his duty to know the properties of his drugs, to be able to distinguish them from one another. It is his duty so to qualify himself, or to employ those who are so qualified, to attend to the business of compounding and vending medicines and drugs, as that one drug may not be sold for another; and so that, when a prescription is presented to be made up the proper medicine, and none other, be used in mixing and compounding it. The legal maxim should be reversed, instead of caveat emptor it should be caveat venditor, i.e., let him be certain that he does not sell "178" to a purchaser or send to a patient, one thing for another, as arsenic for calomel, cantharides for, or mixed with snake root and Peruvian bark, or even one innocent drug calculated to produce a certain effect, in place of another sent for and designed to produce a different effect. If he does these things he cannot escape civil responsibility upon the alleged pretext that it was an accidental or an innocent mistake. We are asked by the defendants’ attorneys in their argument, with some emphasis, if druggists are in legal estimation, to be regarded as insurers. The answer is, we see no good reason why a vendor of drugs, should in his business be entitled to a relaxation of the rule which applies to vendors of provisions, which is, that the vendor undertakes and insures that the article is wholesome (466).”

The general customer is not supposed to be skilled in the matter of drugs, but in the purchase he must rely upon the druggist to furnish the article called for; and in this particular business the customer who has not the experience and learning necessary to a proper vending of drugs, will not be held to the rule that he must examine for himself, it would be but idle mockery for the customer to make the examination when it would avail him nothing. On the contrary, the business is such that in the very nature of things, the druggist must be held to warrant that he will deliver the drug called for and purchased by the customer (467).

It is the duty of the druggist to know whether his drugs are sound or not, and it is no answer to his want of knowledge to say, that the buyer had opportunities for inspection, and could judge for himself of the quality of goods (468).

If a druggist miscompounds a medicine, or intentionally deviates from the formula, he commits a tortious act, and "179" if any injury arises to another through his ignorance or neglect he is liable. Even if a physician writes a prescription wrongly it is expected that the druggist will know enough to detect the error, and whether he does so or not he still compounds it at his peril. For one man’s negligence or omission of duty is no palliation of another’s, and under the doctrine of joint liability the apothecary or druggist who compounds, knowingly or not, a noxious prescription, commits a joint tort with the physician who writes it (469). And in an action against a druggist for injury through the negligence of his clerk in selling sulphate of zinc for Epsom salts, it is no defence to say that the subsequent medical treatment was negligent (470).

A wholesale druggist is liable in the same way as a retail, when he supplies substances notoriously dangerous to health or life, and he impliedly warrants the articles to be as represented by their conventional designation, and if they are not so, he is liable for all damages that may ensue from his mis­rep­re­sen­ta­tion (471).

If a druggist affixes to a medicine, or drug, a label bearing his name and stating it to have been prepared by him, he makes the warrant only more notorious, and by so doing (inasmuch as it is an invitation to the public to confide in his rep­re­sen­ta­tion), is ever after estopped from denying responsibility for any injury which may have arisen out of defects in its quality, or errors in its composition. So long as the label is attached, it is an affirmation of the good quality of the article and its correct composition, to every one who relies upon it when buying. But as some articles deteriorate in time, what is said in relation to the liability of the vendor applies only to the article at the time it leaves "180" his hands. He only warrants its good qualities then, but no longer, and his rep­re­sen­ta­tion affirms that much, and no more (472). The subject of labels was carefully considered in Thomas v. Winchester (473), where Ruggles C.J. gave judgment. Mary Ann Thomas was ordered a dose of extract of dandelion, her husband bought what he believed was dandelion from Dr. Foord, druggist and physician; but it was extract of belladonna. The jar was labelled ‘½ ? dandelion, prepared by A. Gilbert, No. 108 John street, N. Y.’ Foord bought it as dandelion from James S. Aspinwall, druggist, who bought it from defendant, a druggist, 108 John street. Defendant manufactured some drugs and purchased others, but labelled all in the same way. Gilbert was an assistant who had originally owned the business. The extract in the jar had been purchased from another dealer. The two extracts are alike in colour, consistency, smell and taste. Gilbert’s labels were paid for by defendant and used in his business with his knowledge and consent. A non-suit was moved for on the ground, that defendant being a remote vendor and there being no privity or connection between him and the plaintiff, the action could not be sustained. The Court said, “Gilbert, the defendant’s agent, would have been punishable for manslaughter if Mrs. Thomas had died in consequence of taking the falsely labelled medicine. Every one who by his culpable negligence causes the death of another, although without intent to kill, is guilty of manslaughter (474). This rule applies not only where the death of one is occasioned by the neglectful act of another, but where it is caused by the neglectful omission of a duty by that other (475). Although the defendant W. may not be answerable criminally for the neglect "181" of his agent, there can be no doubt as to his liability in a civil action, in which the action of the agent is to be regarded as the act of the principal. The defendant’s neglect put human life in imminent danger. Can it be said that there was no duty on the part of the defendant to avoid the creation of that danger by the exercise of greater caution? Or that the exercise of that caution was a duty only to his immediate vendee, whose life was not endangered? (He being a dealer and not a customer.) The defendant’s duty arose out of the nature of his business, and the danger to others incident to its mismanagement. Nothing but mischief like that which actually happened could have been expected from sending the poison falsely labelled into the market, and the defendant is justly responsible for the probable consequences of the act. The duty of exercising caution in this respect did not arise out of the defendant’s contract of sale to Aspinwall. The wrong done by the defendant was in putting the poison unlabelled into the hands of Aspinwall as an article of merchandise to be sold, and afterwards used, as the extract of dandelion by some person then unknown. The defendant’s contract of sale to Aspinwall does not excuse the wrong done the plaintiffs. It was part of the means by which the wrong was effected. The plaintiffs’ injury and their remedy would have stood on the same principle if the defendant had given the belladonna to Dr. Foord without price, or if he had put it in his shop without his knowledge under circumstances that would have led to its sale on the faith of the labels.”

Ordronaux says (sec. 186): It cannot be denied that had Mrs. Thomas died, Foord would, equally with Gilbert, have been guilty of manslaughter, since whether he intended it or no, he was doing an unlawful act in dispensing a poison for a salutary medicine. While then it may be proper enough to rely upon labels and warranties of others, "182" in dealing with ordinary substances, still when it comes to articles of a character dangerous to health or life, the law will presume knowledge of their quality in those professionally dealing in them, and exact a degree of skill and care commensurate with the risks incurred. Here it is caveat venditor instead of caveat emptor.

In Kentucky, a druggist sold croton oil instead of linseed oil for a patient, who, in consequence of the mistake, died. His widow was held entitled to full damages against the seller (476).

If a druggist negligently sell a deadly poison as and for a harmless medicine to A., who buys it to administer to B., and gives B. a dose of it as a medicine, from the effect of which he dies, a right of action against the druggist survives to B.’s representative, not­with­stand­ing the want of privity of contract between B. and the druggist (477). And this is the rule, also, when the sale has been made by the apothecary’s assistant (478).

Joseph George, and Emma, his wife, sued Skivington, a druggist, alleging that he, in the course of his business, professed to sell a chemical compound made of ingredients known only to him, and by him represented to be fit for a hairwash without causing injury to the person that used it, and to have been carefully compounded by him; that Joseph thereupon bought of the defendant a bottle of this hairwash, to be used by Emma, as the defendant knew, and on the terms that it could be so safely used, and had been so compounded; yet the defendant had so negligently and unskilfully conducted himself in preparing and selling the hairwash, that it was unfit to be used for washing the hair, whereby the plaintiff, Emma, who used it for that "183" purpose was injured. The Court held that a good cause of action was shewn (479).

A Massachusetts apothecary sold sulphide of antimony by mistake for black oxide of manganese. The two look alike, but differ in this, that the preparation of manganese may be safely mixed with chlorate of potassia for many useful purposes; but if that antimony is mixed with that chlorate, an explosive compound is formed. The buyer, supposing he had manganese, proceeded to mix it with potassia, having bought the article for that purpose. But, it being antimony, the compound which he made exploded, broke his head, damaged his hearing, and destroyed the furniture of his laboratory. Yet the Court held that the druggist was not chargeable with these damages, because he did not know that the article he sold was to be mixed with potassia, and did not sell it for that purpose. Kept or used by itself, as he sold it, it would have been innocuous. He was not to blame for the mixing, the real cause of the injury (480).

In England (481), a chemist and druggist was indicted for manslaughter, but was acquitted. The deceased had been in the constant habit of getting aconite and occasionally henbane from Noakes; on this occasion he sent two bottles of his own, one marked, “Henbane, 30 drops at a time.” The druggist by mistake put the aconite into the henbane bottle, the dose of thirty drops was taken, and the customer was no more. Erle, C.J., told the jury that although there might be evidence of negligence sufficient for a civil action, still that they could not convict unless there was such a degree of complete negligence as the law meant by the word “felonious,” and that in this case he did not think there "184" was sufficient to warrant that. But Tessymond, a chemist’s apprentice, was found guilty of manslaughter for causing the death of an infant by negligently giving to a customer who asked for paregoric to give to the infant (a child of nine weeks old), a bottle with a paregoric label, but containing laudanum, and recommending a dose of ten drops (482).

One Jones recovered against a chemist and druggist of the name of Fay, £100 for damages, because he, Fay, gave him blue pills for the painters’ colic, such physic being improper (483). A man, on the advice of a friend, went to a drug store for ten cents worth of “black-draught,” a comparatively harmless drug, of which he intended to take a small glassful as a dose for diarrhoea. There was evidence given by the clerk who sold the mixture, that at the shop he asked for “black-drops,” the defendant, the proprietor, told him that that was poison, that the dose was from ten to twelve drops, and advised him to take another mixture; he refused, and the clerk (by the defendant’s direction), gave him two drachms of “black-drops” in a bottle, with a label bearing those two words written upon it, but nothing to indicate the dose, or that it was poison. The man took the bottle home, drank almost all its contents, and died the next morning from the effects of so doing. In an action brought by the representative of the deceased to recover damages for negligent killing by the defendant, it was held that the Courts should have submitted to the jury the question as to whether the defendant was not guilty of negligence in failing to place upon the bottle a label, shewing that its contents were poisonous, and that it erred in non-suiting the plaintiff. Afterwards in giving the judgment of the Court of Appeal, Finch, J., said, “on such a state of facts (as sworn to by the clerk) a verdict "185" against the defendant would not be justified. Although no label marked ‘poison’ was put upon the phial, and granting that by such omission the defendant was guilty of misdemeanor and liable to the penalty of the criminal law (under the statute of the State), still that fact does not make him answerable to the customer injured, or to his representative in case of his death, for either a negligent or wrongful act, when towards that customer he was guilty of neither, since he fairly and fully warned him of all and more than could have been made known by the authorized label. *** If the warning was in truth given, if the deceased was cautioned that the medicine sold was a strong poison, and but ten or twelve drops must be taken, he had all the knowledge and all the warning that the label could have given, and could not disregard it and then charge the consequences of his own negligent reckless act upon the seller of the poison. But if no such warning was given, its omission was negligence, for the results of which the vendor was liable both at common law and by force of the statute.” But the Court considered that the clerk being himself the one who had been negligent stood in a position to provoke suspicion, arouse doubt and justify watchful and rigid criticism, and that this joined with the conduct of the deceased, developed a question of fact rather than of law, and that the Court below was right in saying that the case should have been submitted to the jury (484).

Under the Ontario Pharmacy Act no one can sell certain poisons named without having the word “Poison,” and the name of the article, distinctly labelled upon the package; and if the sale is by retail, the name of the proprietor of the establishment where it is sold, and the address must also be on the label (485). "186"

Any person selling any poison, in violation of the Act, is liable to a penalty of not more than $20 and costs for the first offence, and $50 and costs for every subsequent offence; and one-half of the penalty goes to the prosecutor; and no one selling in violation of the Act can recover his charges. And one wilfully or knowingly selling any article under pretence that it is a particular drug or medicine, when it is not, is liable to the above penalties, besides any other to which he may be liable irrespective of the Act (486).

In Georgia it was held, that where a druggist in good faith recommended the prescription of another person to the owner of a sick horse, who thereupon ordered him to put it up and paid for it, the owner had no cause of action because the medicine had injured his horse, as the stuff was properly prepared according to the prescription (487).

In England chemists and druggists are liable to the heavy penalty of £500 if they sell to brewers or dealers in beer anything to be used as a substitute for malt; they are also liable for adulterating, or selling any adulterated, medicine; and on a second offence of this kind, the name of the offender, his abode, and his crime may be published in the newspapers at his expense (488).

An action can be maintained by a husband against a druggist to recover damages for selling to the plaintiff’s wife, secretly, from day to day large quantities of laudanum to be used by her as a beverage, and which are so used by her to the druggist’s knowledge, without the knowledge or consent of the husband, the druggist well knowing that the same was injuring and impairing her health, and concealing the fact of such sales and the use thereof from the husband; "187" in consequence of which use by her the wife became sick and emaciated, and her mind was affected, so that she was unable to perform her duties as such wife, and her affections became alienated from her husband, and he lost her society, and was compelled to expend divers sums of money in medical and other attendance upon her (489).

In some of the American Courts it has been held that a statute forbidding the sale or keeping for sale without authority of spirituous or intoxicating liquors does not apply to druggists who keep such liquors only for the purpose of mixing them with other ingredients, according to prescriptions of physicians; and also for the purpose of manufacturing such compounds as are commonly used by druggists to be sold as medicines for remedies for sickness and disease (490). The question has often come up whether a compound sold by a druggist is to be considered an intoxicating liquor, the sale of which is illegal, or not. The rule laid down is, that so long as liquors retain their characters as intoxicating liquors, capable of being used as beverages, not­with­stand­ing that other ingredients—roots or tinctures—may have been mixed therewith, they fall under the ban of the law; but when they are so compounded with other substances as to lose their distinctive characters of intoxicating liquors, and are no longer desirable for use as stimulating beverages, they are medicine and their sale is not prohibited (491).

In Indiana a bona fide sale of intoxicating liquor by a druggist for medicinal purposes is not a violation of the statute regulating the sale of such liquors, although the statute contains no exception authorizing the sale of such "188" liquors, without license, for medicinal, chemical or sacramental purposes.

And that is the law in North Carolina, but not in Arkansas (492). In Iowa it was considered a breach of the law for a druggist to sell a quart of whiskey to a stranger upon his simple statement that he was accustomed to take it as a medicine and wanted it as such (493).

In Texas, where a druggist can only sell ardent spirits upon the prescription of physicians in sickness, a druggist who is himself a physician may sell to a sick patient without a prescription from anyone else (494).