570 
BERRY V. HENDERSON. 
cure of toothache, pure and simple; and if that construction of the Act were correct, any¬ 
one might go into a chemist’s shop and buy aconite, and say, I bought it as medicine ; and 
a chemist might say, I am entitled to sell aconite because it is a medicine. So in the same 
way he might sell prussic acid, and then bring himself within that proviso by saying that 
it was a medicine, that it was intended for a medicine for the person for whom it professed 
to be bought. 
Mr. Justice Lush— You mean to say, he ought to show the fact, that some physician 
bearing those initials, did, in fact, issue the prescription ? But that would impose a great- 
difficulty in the way of chemists. 
Mr. Lumley Smith.— He might avoid that by saying, “ I shall not dispense this until I 
have the protection of the Act for the Regulation of the Sale of Poisons. ’ He has the 
remedy in his own hands. Here is simply a prescription on a piece of paper, that anybody 
who wished it might forge at a moment’s notice. It has not even the name of the surgeon 
who prescribes, and there is no address of the person for whom it is intended. If this con¬ 
struction is con’ect, any person who wished to commit suicide, or who wished to use poison 
for an improper purpose, has only to take a false prescription iuto a shop, and be supplied 
with what he asks for. Then, my lords, he has to go farther. Assuming that he has 
shown that this is a medicine, he has to show, further, that he has complied with the regu¬ 
lations of the Act of Parliament. And the first of these is this,—that he must enter the 
name and address of the seller, and the ingredients, 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. I submit, in the- 
first place, that the name of Mrs. Newton, entered by him in his 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 goods over the counter. 
Mr. Justice Hcumen. —Oh, no. It says the buyer, not the person to whom it is de¬ 
livered only. 
Mr. Lumley Smith. —Sold or delivered. 
Mr. Justice Ilannen. —Suppose he had asked the question of a servant, "Whom do you 
come from ? and the answer had been, Mrs. Newton, w r ould he have been bound to go and 
ascertain whether there was such a person ? 
Mr. Lumley Smith. —I submit that the proper person to be entered in his book which 
he has to keep, is the person who actually receives it. When you come to deal with an 
actual person, it is uuder Schedule (A), and you must have, not merely the name of the 
purchaser, but the signature. Supposing this is a poison sent for by Mrs. Newton ; sup¬ 
posing Mrs. Newton had sent Ausell Johnson for this poison, whose signature would go 
into the book then ? Surely not Mrs. Newton’s, but the person who actually received it. 
Mr. Quain. —Pardon me; it is the signature of the purchaser, not the person who re¬ 
ceives it. 
Mr. Lumley Smith. —How can the purchaser sign if he has not gone there and bought 
it? What is the signature required ? It is the signature of the person who actually re¬ 
ceives the article. It provides that the signature of this person and the person who intro¬ 
duces him, shall be affixed. If the person who fetches it is not the actual purchaser, it 
would appear from that that the actual purchaser must go down and sign. 
Mr. Justice Hannen. —You are not on the proviso now? 
Mr. Lumley Smith. —No, my lord, I was going back again to the former part of the 
clause. The proviso says this, “ That the name of the person to whom it is sold or de¬ 
livered, shall be entered in a book to be kept by the seller for that purpose.” That is Ansell 
Johnson. His name ought to appear. 
Mr. Justice Hannen. —That would appear as the name of the person to whom it was 
delivered; but what effect are you going to give to the words, “ to whom it was sold ” ? 
Mr. Lumley Smith. —I should submit that probably brings it back to that clause in the 
preamble which speaks of chemists retailing or dispensing. There are many cases in which 
a chemist delivers a mixture or a lotion, or whatever it may be, without selling it, there 
may be cases in which he actually administers it. I should say retailing would apply to the 
selling, and delivering to the cases in which there had been no sale. In all these cases, as- 
far as I have been able to see, it is the actual person who goes to the shop of whom a record 
ought to be kept. With respect to these poisons mentioned in the first part of the section, 
the actua signature is required. And so again in the Arsenic Act, mentioned in this Act, 
'which is the 14 & 15 Yict. c. 13, there, again, no arsenic is to be sold unless there is a 
