quences of the act, i. e., such as would be likely to follow, and might be easily foreseen.1

66

"§ 1. Where the unlawful act is in its nature likely to produce the very events which have followed, the author of it may be treated as having caused each succeeding event, though they consisted of the acts of third persons. Causa causans est causa causati.2

66

"§ 2. The false label was not only likely to mislead druggists and others into the mistakes which have followed, but such was its direct and almost inevitable tendency.3

66

"§ 3. The rule contended for does not extend the sphere of accountability to impracticable or unjust limits, but confines it to consequences so proximate as to be expected or readily foreseen, and for which every wrong-doer is and ought to be answerable.

"(1). If the defendant's act had been done willfully, he would have been chargeable with the consequences, including the mistake of Dr. Foord, etc., on the legal presumption that he intended them.*

"(2). The sphere of responsibility is the same when the wrong consists of negligent acts, though the measure of indemnity and punishment may be different."

"§ 4. There is no pretense for saying that the injury

1 Smith's Lead. Cases, 132, n. ; 23 Eng. C. L. R. 54; 5 Denio, 266. 2 19 Johns. 381; 4 Denio, 464; 2 W. Blacks. 892; Broom's Legal Maxims, 168, 1st ed.; 5 Maule & Selw. 198; 41 Eng. C. L. R. 425; 24 Id. 272; 23 Id. 52; 28 Id. 222; 12 Mod. 639; 19 Wend. 345; 4 Denio, 317; 2 Wend. 385; 3 Metc. 469; 2 Mees. & Welsb. 519.

3 Cro. Jac. 471; 23 Eng. C. L. R. 41; 3 Metc. 469.

41 Grlf. Ev. 18; 3 Maule & Selw. 14, 15; 3 Bouv. Ins. 348; 16 Wend. 649; 3 Met. 469.

Archb. Cr. Pl. 421, 2nd ed.; 2 Ld. Raym. 1583; 23 Eng. C. L. R. 54; 3 Maule & Selw. 14; 1 Lewin Cr. Cas. 169; 2 Starkie Ev. 526, Am. ed. 1837; 5 Maule & Sel. 198; Broom's Legal Max. 168; 4 Denio, 464; 41 Eng. C. L. R. 422; 24 Id. 212; 19 Wend. 345.

was caused by the illegal act of a third person, and not by that of the defendant, the jury having directly found that the intermediate actors were not negligent.

"5. Besides, this rule never applies where the intervening wrong does not furnish a distinct right of action for the whole injury sustained. Mrs. Thomas could not get redress by an action ex contractu against Dr. Foord or any one else. And to apply the rule here would contravene the maxim ubi jus, ibi remedium.1

"6. Again, the rule does not apply where the intervening wrong, though actionable, is the natural and probable consequence of the defendant's tort.2

"IV. But the injury in this case was the immediate consequence of the defendant's act. The false label was a continuing representation or direction by him, and operated as the instantaneous cause of the mistake of Dr. Foord.3

"V. The inquiry being sufficiently connected with the defendant's wrongful act, it is no defence that he had parted with the poison under a formal sale, and placed it in the custody of others; this being the very mode by which he caused the injury.*

"1. The inability of the defendant to prevent the injury at the time, is not an excuse, but a part of the wrong.5

1 2 Crom. Mees. & Ros. 707-716; 38 Eng. C. L. R. 30; 11 Price, 400; 35 Eng. C. L R. 292; Broom's Legal Max. 91; 1 Smith's Lead. Cases, 124–132, n. 2 1 Smith's Lead. Cases, 132, n.; Broom's Leg. Max. 168; 5 Barn. & Cres. 356; 23 Eng. C. L. R. 52; 41 Id. 422; 24 Id. 272; 5 Maule & Selw. 198; 19 Wend. 345; 2 Mees. & Welsb. 519; 5 Denio, 266; 32 Eng. C. L. R. 211. 3 Cro. Jac. 471; 23 Eng. C. L. R. 41; 3 Metc. 469; 1 Id. 193.

▲ 12 Mod. 639; 2 Starkie Ev. 526; Broom's Legal Max. 168; 5 Maule & Selw. 198; 41 Eng. C. L. R. 422; 24 Id. 272; 2 Mees. & Welsb. 519; 19 Wend. 345.

12 Mod. 639; 4 Denio, 311; 7 Mees. & Welsb. 456; 9 Barr, 345; 23 Eng. C. L. R. 52; 28 Id. 220.

"2. Besides, the label was a continuing authority or direction by the defendant for the use of the poison, and he was bound to indemnify against the acts which it was likely to cause when sold in that condition.1

"VI. The rule contended for by the defendant, that each vendor is liable only to his immediate vendee, has no application in the present case.

"1. This rule is founded on the principle that a right or duty wholly created by contract, can only be enforced between the contracting parties. The case of Wright v. Winterbottom, 10 Mees. & Wels. 109, was decided on this principle, the declaration being expressly on a duty created by contract and not by law. In The Mayor, &c. v. Cunliff, 2 Comst. 165, each count was on an alleged duty created by law; but the law being void, the allegation as to the duty could not be maintained.

"2. Nothing was decided in either of the above cases which interferes with the right to maintain the present action. The duty violated by the defendant was not created by contract, but by law, every one being under an obligation to abstain from acts tending naturally and probably to endanger life. Besides, both cases contain dicta3 which show that the principles on which the present action is based were not intended to be denied.

"VII. In any view of the case, the defendant, it must be admitted, is ultimately responsible for the injury to Mrs. Thomas, unless those who have been the unconscious agents of the wrong are to bear the burden, and the author of it escape."

1 Cro. Jac. 471; 12 Mod. 639; 23 Eng. C. L. R. 41; Id. 52; 28 Id. 220; 3 Metc. 469; 4 Denio, 311; 2 Comst. 180; 19 Wend. 345.

25 Mees. & Welsb. 283.

10 Mees. & Welsb. 114; 2 Comst. 180.

2 Saund. 150; Willes' R. 401; 2 H. Blacks. 350; 4 Wend. 492; Co. Litt. 348, a.

CHAPTER III.

LIABILITIES OF DISPENSING PHARMACEUTISTS FOR NEGLIGENCE, WANT OF SKILL, OR UNAUTHORIZED PUBLICATION OF PRESCRIPTIONS.

§ 188. In passing from the mere sale of drugs as a dealer, warranting their good quality, to the dispensing and compounding of them as a profession requiring skill and carefulness, the character of the apothecary changes essentially. In the former case he is simply a druggist or vendor of medicines, in the latter he becomes a dispenser or compounder, and, as such, allied in responsibility to the physician. In this new position his contract is no longer one simply of sale, but he passes into a mandatary for hire, like any workman who both furnishes materials, and subsequently, by the application of his skill, manufactures them into required articles. Skill, therefore, enters into the compounding of medicine to a degree commensurate with the nature of the service rendered, for pharmacy constitutes both a science and an art in itself, and its practitioners consequently incur all the responsibilities belonging to the discharge of professional duties.

Το say that the apothecary or pharmaceutist is bound to possess the ordinary skill of his profession, is only to repeat what has heretofore been said in relation to the physician. And in compounding and dispensing his drugs, he is further bound to exhibit an amount of care proportioned to the risks and exposures of the business; and the degree required is higher necessarily where life or limb are

endangered, or a large amount of property is involved, than in other cases. This rule has always been enforced wherever the nature of the occupation carried on was such, as, through negligence might affect health. Thus, it has been held that if a baker directs his servant to make bread containing a specific quantity of alum, which, when mixed with other ingredients, is innoxious, but in the execution of these orders the agent mixes up the drug in so -unskillful a way that the bread becomes unwholesome, the master will be liable to be indicted.1

In a recent case against a druggist's clerk, who was tried and convicted of manslaughter before the Court of Oyer and Terminer of Philadelphia,2 for gross negligence in miscompounding a prescription, where, instead of furnishing assafoetida, as called for by the prescription, (which had been already compounded five or six times by the defendant and his father,) he supplied atropia, three grains being given in four pills, whereas one-sixth of a grain is the largest dose ever given for medicinal purposes, and the patient losing her life in consequence of taking the same.

Judge F. C. Brewster, in his charge to the jury, said: "We are of opinion that there is no question here of grades of crime, and on this account we shall not trouble you with the definitions of voluntary homicide, or of any higher offence. The District Attorney has, according to our views of the case, very properly abandoned the first count of the indictment, and the only question, therefore, is whether the defendant should be convicted or acquitted of the remaining six counts, which, in vari

13 M. & S. 10; 4 Blacks. Comm. 162.

2 Comm. v. Joseph H. Bower, Phila. Oyer and Terminer, April Term,