Bremridge v Gray
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1887 |
| Date | 20 July 1887 |
| Docket Number | No. 19. |
| Court | High Court of Justiciary |
Lord Justice-Clerk, Lord Young, Ld. Craighill, Justiciary Clerk.
Pharmacy Act, 1868, 31 and 32 Vict. c. 121, secs. 1 and 15—Sale of drugs—Chemist and Druggist—Joint stock company.—
A limited company carried on business as ‘Wholesale Chemists, Druggists, and Tea-merchants,’ doing both a wholesale and retail business. None of the shareholders was a duly qualified chemist and druggist under the Pharmacy Act, 1868, but the dispensing of drugs was done by duly qualified chemists and druggists. Held that the individual shareholders were not liable under sec. 1 and sec. 15 of the Act to be prosecuted for the offence of unlawfully taking and using the name chemists and druggists, and advertising the company as chemists and druggists.
Andrew W. Gray, and six other persons, were charged in the Sheriff Summary Court at Edinburgh at the instance of Richard Bremridge, registrar under the Pharmacy Act, 1868 (with concurrence of the Procurator-fiscal of Midlothian), with an offence against section 1 and section 15 of that Act,* in so far as, first, between 1st December 1886 and 17th May 1887, they did all, acting together or separately, in contravention of
these sections, ‘put up, use, or exhibit … the name or title chemists and druggists, above or in connection with a shop at No. 49 Leith Walk, Leith, and in the county of Midlothian, occupied by them, or by the Leith Depot, Limited, of which they are the sole partners or shareholders; and also with another shop at No. 33 Ferry Road, Leith, in said county, occupied by them or by the Leith Depot, Limited, of which they are the sole partners or shareholders: And the said Andrew W. Gray, … all and each, or one or more of them, did, during said period above libelled, or part thereof, within or near the shops occupied by the said Leith Depot, Limited, at 49 Leith Walk, Leith, and 33 Ferry Road, Leith, aforesaid, and at other places in Leith and Edinburgh, the particular place or places being to the complainer unknown, in the county of Midlothian, unlawfully, and in contravention of the said 1st and 15th sections of the said recited Act, issue to the public, or cause or procure to be issued to the public, in connection with the businesses or either of them, carried on by them or by the said Leith Depot, Limited, of which they are the sole partners or shareholders, in the premises at 49 Leith Walk and 33 Ferry Road, Leith, aforesaid, printed circulars, labels, and advertisements, having the words chemists and druggists printed or written thereon, none of the said Andrew W. Gray, … being a duly registered pharmaceutical chemist, or a chemist and druggist within the meaning of the said recited Act,’ whereby they had each become liable to a penalty of £5.
Objection was stated to the relevancy of this charge, on the ground that it ‘did not set forth that each or all of the appellants had as an individual or as individuals, put up, used, or exhibited, the title chemist and druggist, or had as an individual or individuals, issued to the public circulars, labels, and advertisements bearing the words chemist and druggist, and that the complaint charged was in truth a complaint against the Leith Depot, Limited, in respect that the company put up, used, or exhibited the title chemists and druggists in the manner set forth, and also issued to the public, in connection with the business of
the company, circulars, labels, or advertisements, bearing the words chemists and druggists, and that such a complaint was irrelevant.’
The Sheriff-substitute (Rutherfurd) repelled the objection, on the grounds stated in his opinion,* which was held as part of the case
obtained by the accused as after stated. Proof having been led, the Sheriff-substitute in respect thereof convicted the accused, and imposed a penalty. They took a case for appeal. The facts stated were,—‘None of the appellants are duly qualified chemists and druggists under the statute. They are the sole shareholders of the Leith Depot, Limited, registered under the Companies Acts, 1862 and 1867. The company had two shops, one at No. 49 Leith Walk, and the other at No. 33 Ferry Road, Leith. The objects for which the company was established, as set forth in the memorandum of association which was produced, are the carrying on of the business of wholesale and retail chemists and druggists, as well as that of selling and dealing in tea, tobacco, spices, perfumery, and generally articles for domestic use or ornament. In addition to a wholesale trade in articles such as chemical food, syrups, and tinctures, but not in drugs or poisons, the business of an ordinary retail chemist and druggist was carried on at each of the shops. The title exhibited above both shops is “The Leith Depot, Limited, Wholesale Chemists, Druggists, and Tea-Merchants.” All circulars, labels, and advertisements bore the words, “The Leith Depot, Limited, Wholesale Chemists, Druggists, Tea-Merchants.” In the circulars and advertisements prominent reference was made to the retail and dispensing business carried on, and it was alleged that goods were retailed at wholesale prices. The shop at 49 Leith Walk was under the management of the appellant Mr Andrew W. Gray, one of the shareholders, and an assistant, Mr Nicholas Dodds, who is a duly qualified chemist and druggist. The shop at No. 33 Ferry Road was managed by an assistant, Mr Henry Forewell, who is a duly qualified chemist and druggist.’
The questions of law were:—‘(1) Whether the first charge in the complaint is or is not relevant? And assuming the first query to be answered in the affirmative, (2) Whether the use and exhibition of the title chemists and druggists by the appellants as aforesaid, was or was not a contravention of the 15th section of “The Pharmacy Act, 1868”?’
Argued for the appellants;—I. The decision of the Sheriff was erroneous in itself, and inconsistent with that of the House of Lords in the case of The London and Provincial Supply Association.1 The appellants were the shareholders of a corporation, being a company under the Companies Acts. It had been decided in the case of The London and Provincial Supply Association1 that a corporation not being a natural person was not a ‘person’ in the sense of the Act, and could not be sued for a penalty. Such a ‘person’ could not be examined by the board established by the Act, or comply with other requirements imposed on ‘persons’ by it. This prosecution was therefore brought against the individual partners of the incorporated company, and the contention of the prosecutor must be that a company could not sell drugs unless the partners
were qualified chemists. It was submitted on the contrary that it was sufficient that a company dispensed drugs by duly qualified agents. In the one shop, which was managed by the appellant A. W. Gray, this company had a qualified chemist and druggist to assist Gray, while the other shop was managed by a duly qualified assistant. If an unqualified person dealt in drugs, it would be no defence under the Pharmacy Act that he was only an agent and not a principal, and his employer, whether a corporation or a natural person, might be liable as art and part with him, but the Act did not interfere with a corporation which transacted its business through a duly qualified person. The mischief to be guarded against, as the preamble shewed, was danger to the public, and that was sufficiently secured by the construction that the Act struck at the unqualified compounder of drugs, whether principal or agent. The Sheriff-substitute seemed to think that the judgment of the House of Lords merely went the length of holding that where one member of the corporation was duly qualified the corporation escaped liability. The judgment, however, was that a corporation might legally carry on the business. If it could do so, it was impossible to hold that every member of it was liable to be prosecuted for acts lawfully done by it.
II. As to the second question, the appellants did not call themselves ‘chemists and druggists,’ but ‘wholesale chemists, druggists, and tea-merchants.’ The taking of that designation was not unlawful under the Act. No doubt the appellants did in fact carry on a retail business.
Argued for the respondent;—The House of Lords had decided that a corporation could not under the Pharmacy Act, 1868, be indicted for a penalty, and that was accepted by the prosecutor here, who indicted the individuals composing it. It had not decided that a corporation might call itself chemists and druggists. In the Court of Appeal Lord Justice Thesiger said,—‘I feel bound to add that I am by no means satisfied that although a corporation as a separate entity be not liable to the penalty which is sought to be recovered in this case, the individual members of the corporation, whether directors of the company or otherwise, may not be liable, and thus the mischief be remedied.’ It also appeared from the opinions of Lord Justice Bramwell and of Lord Blackburn in the House of Lords that in their view a corporation could not use the name ‘chemists and druggists.’ In a case of selling, indeed, the corporation would be employing a ‘person’ in the sense of the Act to sell for them, but in ‘keeping open shop,’ using the name ‘chemist and druggist,’ this corporation was itself acting. Although the corporation might...
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