
    Sterling L. Westmoreland v. Charles Bragg.
    
      Spartanburgh, Spring Term, 1834.
    "agedcom-pounding & sol-tíniíer modl<0The sTitem»isana pothcca’vyw'ithin tilo and cannot rcco-nfhis°mcd?cines!
    Appeal from a judgement of a justice of the peace. The plaintiff was engaged in vending liquids, compounded of vegetables, according to what is usually termed the “ Thompsonian ®ystem >” ar>d s°ld to the defendant a concoction oí roots and herbs which he had gathered, and compounded himself, for which he charged eight dollars. He had no license either to practice physic or to sell drugs. The justice gave judgement for the plaintiff. Mr. Justice Richardson, on appeal to him, affirmed the judgement, on the ground that “ monopolies and exclusive privileges being in derogation of the common law, arc to be construed strictly; and that there is a distinction between the common right of vending compounds of roots and spirits, which is claimed by the plaintiff, and professional charges for administering them secundem. artem, which latter alone belong (by the act) to the M. D. commissioned ex cathedra.”
    From this decision the defendant appealed.
    
      Henry, for the appellant.
    
      Williams, contra.
   O’Neall, J.

The “act to regulate the licensing of physicians to practise, and for other purposes therein mentioned,” (Acts of 1817, pp. 31, 33,) after declaring that no person shall be allowed, without a license, to practise physic or surgery, or any of the branches thereof, and the punishment to be incurred for practising without a license, provides in the 4th section, “ that all bonds, notes, promises and assumptions, made to any person or persons not licensed in manner hereafter mentioned, the consideration of which shall be services rendered as a physician or surgeon, in prescribing for the cure of diseases, shall be, and they are hereby declared, utterly void and of no effect.” The 9th section prohibits apothecaries from vending or exposing to sale any drugs or medicines, without previously obtaining a license to do so, and provides that “ every apothecary so vending or selling drugs or medicines, contrary to the provisions of this act, shall be liable to ail the penalties imposed by this act on physicians and surgeons practising without license.”

An apothecary, in the most usual and familiar sense, is un-dorstood to be one who vends drugs or medicines, as his trade or business. The plaintiff here was “ engaged in selling and vending liquids, compounded of roots and herbs, under the ‘Thompsonian System.”’ This is vending medicines as a trade or business ; and in this point of view, the plaintiff must be regarded as an apothecary. The act devolves upon him the proof that he was licensed, and in the absence of proof of a license, he must be taken to be an unlicensed apothecary, vending medicine, and liable to all the penalties imposed by the act of 1817. What are its penalties 1 They are two-fold, fine and imprisonment on conviction, and the legal invalidity of all bonds, notes, promises and assumptions, made in consideration of the price of the medicine so vended. The contract sued on in this case, under this view of the law, was illegal and void; and the motion to reverse the decision of the judge below, and the judgement of the justice of the peace, is granted.

Johnson and Harper, Js. concurred.  