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."1

In brief, then, every druggist, simply as a dealer in drugs, is held to be bound by a contract of guaranty, to every purchaser unskilled in the nature of drugs, that the article sold by him is that which the purchaser has called for, and that the same is wholesome and of good quality. This rule, in itself, involves a grave responsibility, but the extraordinary liabilities of the pharmacist do not end with this. It is held, in a leading American case, that "It is his duty to know the properties of his drugs, and to be able to distinguish them from each other. It is his duty to so qualify himself, or to employ those that 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 medicines, and none other, be used in mixing and compounding it."

In fact, the pharmacist guarantees, to every person for whom he prepares a prescription, that he possesses the requisite scientific knowledge and skill to enable him to correctly compound the 1 Jones v. George, 56 Tex. 149, 42 Am. Rep. 689.

2 Fleet v. Hollenkemp, 13 B. Mon. 229, 56 Am. Dec. 563.

same. He contracts, not only to use drugs that are of the right kind and wholesome, but also, in compounding such drugs, to use ordinary skill and knowledge combined with ordinary care. And it must be remembered that in thus dealing with dangerous drugs, "ordinary care" means a degree of care in proportion to the risk.

CHAPTER X.

LIABILITY OF RETAIL DRUGGIST FOR NEGLIGENCE.

The Kentucky case of Hollenkemp v. Fleet and Semple, known in the Kentucky Court of Appeals as Fleet v. Hollenkemp, is a leading case in the matter of the liability of retail druggists. The opinion of the Court was prepared by Justice Hise, and it is so direct and comprehensive in the treatment of the subject, that it is thought best to present the entire text of the opinion for the perusal of the student.

"John Hollenkemp sued William T. Fleet and Samuel P. Semple, partners in the business of vending drugs by retail, in an action upon the case, for having, through negligence, permitted a portion of the poisonous drug called 'cantharides' to be intermingled with some snakeroot and Peruvian bark which he had purchased at their drug store, and which he, being then indisposed, by the advice of his physician, had taken as medicine for his restoration, not knowing that the poison had been mixed with the bark and snakeroot, and that in consequence he had been very sick, endured great suffering, pain, and agony, and that his health had been thereby permanently injured. The defendant appeared, and pleaded not guilty. There was a trial, verdict, and judgment against the defendants for one thou

sand one hundred and forty dollars and seventyfive cents damages, and costs of suit.

"The defendants moved the Court to set aside the verdict and judgment, and to grant them a new trial, upon various grounds, which may be all summed up and stated as follows:

"1. Because of the discovery of important evidence made during the progress of the trial, for the first time, and which they allege they had neither the opportunity nor power to procure and offer to the jury.

"2. Because the damages found by the jury were excessive, and unwarranted by the facts in the case and the proof in the cause.

"3. Because the court erred in giving the instructions asked for by the plaintiff's counsel, and in refusing those asked for by the counsel of the defendant.

"The court refused to grant a new trial, and the defendants' motion to that effect was overruled. The defendants filed their bills of exceptions to this and other decisions of the court given pending the trial.

"The evidence was reduced to writing and certified, and the defendants have appealed to this court.

"The evidence collectively presents, in substance, the following state of facts: The plaintiff having been sick for some time had improved and was convalescent. A tonic preparation was

recommended by the attending physician, who made out a written prescription for the plaintiff, as follows: That he should procure two ounces of snakeroot and two ounces of Peruvian bark, in the form of a powder, to be mixed and divided into four portions; to be made into a tea, by the application of three pints of water to each portion of snakeroot and bark; the patient to take half of a teacupful of the decoction twice each day. This prescription was sent by the plaintiff to the defendants' drug store to be filled. There the two ounces of snakeroot and two ounces of Peruvian bark were, by the clerk, in the presence of one of the defendants, put into a mill to be ground into a powder, and passed through the mill, and thus pulverized.

"It was then put up in separate papers, as directed by the prescription, and delivered to the plaintiff's messenger, who carried them to the plaintiff. A tea was made of one of the potions. The patient drank a half teacupful of the preparation, and shortly afterward the effect produced by the dose was so unexpected and extraordinary that the same physician was sent for who had drawn up the prescription, who, upon his arrival, found his patient laboring under all those violent symptoms which, according to all the evidence on the subject, are produced by cantharides when taken in sufficient quantity into the stomach. The physician, his suspicions