The Jurisprudence of medicine in its relations to the law of contracts, torts, and evidence

that one copy absolutely, but he cannot multiply it indefinitely. Nor is it necessary that the work should have been printed or copy-righted, since there is property in MSS. and oral lectures, and they can not be published without authority any more than written compositions.1 Whatever is original, as a mental product, is considered literary property the moment it is reduced to such form as admits of identification and proof of authorship.

§ 204. Under the shadow of these principles, it may be averred that a prescription is in law literary property. Nor is it the size or length of the composition which determines its character, for there may be property in a single sheet of music, precisely as the laws of real property apply with the same force to a square foot of ground as they do to a square mile. If a prescription be property, the use of which the patient has purchased, it is only the patient who can ask to have it compounded. And as we have seen that this right gives him no authority to publish it, it follows as a necessary corollary, that the apothecary can not acquire any better right in the premises than belonged to the patient. The apothecary may undoubtedly make a copy of the prescription, to be used in case of necessity to vindicate his conduct in compounding it, and should, as a duty to himself and the public, not omit to do so, but he can not, legally, recompound it at will for any stranger or third party, since that would be equivalent to a publication of it without first obtaining permission from its author. Of course if the prescription has no signature, or no name of patient, it is simply an anonymous composition, which any one may appropriate, since there is no evidence of ownership. Whether it be good policy to

1 Bartlett v. Crittenden, 4 McLean, 300.

Clayton v. Stone, 2 Paine, 382.

compound such, is a question which we do not propose to discuss in this connection. In other countries, special enactments prescribe the duty of apothecaries in such cases, by forbidding the practice.

§ 205. But whether the original prescription, or a copy of it, be left with the apothecary, as soon as he has compounded it for the patient, his retention of the document becomes a bailment in his hands, in the nature of a deposit for the benefit both of the patient and the physician, the former having a legal and the latter an equitable right in it. The duty of the bailee being that of custody alone, his right of control extends only so far as this end can best be secured. If the manuscript composition of one person, or a copy of it, be simply deposited in the hands of another, the latter is made a custodian only, and for a specific purpose. Thus it has been held that a person who uses his own manuscripts for the purpose of instructing others, does not thereby abandon them to the public. Nor does he abandon them where pupils are permitted to take copies. Such copies being intended for the purpose of instruction, as used, can be applied to no other purpose.' So, if the apothecary sell the use of the prescription to any third party without permission, it is both a breach of trust and an unlicensed publication of the same. Subtle and complex as these tri-partite relations may appear,. they were not overlooked by the masters of ancient jurisprudence, and in the civil law the depositary was held to a strict account for any departure from the line of his trust. Hence, if any one having the custody of a will read it aloud in the presence of others, an actio depositi could be maintained against him; or, as Ulpian thought, an actio injuriarum, if he read the instrument to others

1 Bartlett v. Crittenden, 4 McLean, 300.

with the intention of revealing the secrets of the testator.1 If reading aloud to others a written instrument constitutes a publication, why is not a recompounding of a prescription indiscriminately for the public a similar act? It is no answer to this that the public are not made aware thereby of the formula, for perhaps even the patient and owner does not understand it himself. This is a contingency subsequent to the wrong committed, and of which the depositary can take no advantage. The only question to be decided in his behalf is, whether or not he has diverted the deposit from its original purpose of being used by one person, and surrendered it to be used by many.

§ 206. Whatever has been said upon the legal aspect of prescriptions when in the hands of apothecaries, applies necessarily only to such as are original. All formulæ which are to be found in the dispensatory, may be considered as res communes. Whoever may have invented. them, they are now, from universal adoption, become public property. In England, formerly, the property in a Latin grammar was said to reside in the king; but more lately courts have held it to be a subject publici juris. The same rule will apply to ancient prescriptions, which may be considered as public property in every sense. Without desiring, therefore, to strain principles of law beyond their proper limits, nor to create problems for the mere purpose of discussing them, we have endeavored to investigate this vexed question in a judicial and not a professional spirit, and upon reviewing the principles of equity that have engaged our attention while examining

1 "Si quis tabulas testamenti apud se depositas pluribus praesentibus legit, ait Labeo, depositi actioni recte de tabulis agi posse. Ego arbitror, et injuriarum agi posse, si hoc animo recitatum testamentum est quibusdam praesentibus, ut judicia secreta ejus qui testatus est, divulgarentur." Digest. lib. XVI. tit. III. 24.

it, we think it will be made manifest that the interests of physicians and apothecaries are, in this particular, reciprocal and not antagonistic.

What is chiefly needed to protect the rights of all parties, and to provide for the public safety, is a system of rational and uniform legislation throughout the United States upon the profession of pharmacy. Strange as it may seem in a country where so many law-making bodies are each annually producing a volume of enactments, intended to meet all present and future necessities of, or to supply all past deficiencies in, municipal governmentstrange as it may seem, a science so intimately related to human health, and the preservation of life, as that of pharmacy, has as yet received legislative recognition in but a very few States. On such subjects as poisons or alcoholic liquors, some statutes have indeed been passed prescribing the duties of apothecaries in their sale, but beyond this point State legislatures have not generally ventured, thus ignoring pharmacy as a science intimately allied to the practice of medicine, and recognizing it only as a traffic in drugs for commercial purposes.

For a very able and exhaustive report on the present condition of the profession of pharmacy in the United States, see the Report of John M. Maisch, Esq, Permanent Secretary of the American Pharmaceutical Association, presented at its sixteenth annual meeting, September 10th, 1868, and published in pamphlet form. Philadelphia, 1868.