Star.
London, England, 1824-12-18 00:00:00

LAW ItErOfir.

COURT OF CHANCERY, DECEMBER 17.
THE ATTORNEY-GENERAL W. TUBELFALL.

This was an appeal case, and the only point of in-
terest in it, was the astonishing sum spent in litigation.
The matter in dispute was a spot of ground about six
feet by four, on which the gable-end of a cottage was
built in Lancashire, and to which the Attorney• General
made a claim in right of a Charity, the endowment of
which was contiguous. There have been bills and ar-
guments in Chancery, more than one issue tried at law,
and the proceedings at present is for another issue, or a
restraint of a former issue at law, after an expense, it is
said, of £7,000. The case is to be further argued on
Wednesday next.

COURT OF KING'S BENCII, DECEMBER 17.
THE APOTHECARIES COMPANY V. BENTLEY.

This was an action on 55 Geo. 111. to recover penalties
against the defendant, for practising as an apothecary
without a certificate from the Compa.py of having passed
an examination, and not having been in practice on or
before the Ist of August, 1815.
Mr. SCARLET? stated, that this action was brought
by the Apothecaries Company to enforce a very whole-
some law. The statute,on which it was founded was
passed to protect the public health against the may
practice of ignorant persons who might impose on the
unwary, and made every man liable to a 'penalty of £2O
who practised without a certificate of qualification, un-
less he should be in the practice on the Ist of August,
ISIS, when the Act began to operate. There would be
no doubt that the defendant had practised ; and there-
fore the only question would be, whether he was within
the exception which, by the case of " The Apothecaries'l
Company v. Roby," was held to be restricted to persons
actually in practice on the Ist of August, 1815, and to
extend to persons who might have acted before that pe-
riod, but had ceased to act as apothecaries ? Now he
would show that the defendant was not very likely so to
have practised—that he had been apprenticed to the
trade of a whitesmith, had become a hardwateman and
travelling auctioneer,and had been made bankrupt before
'restarted as a surgeon, inGeorge-street,lla mpstead-road.
Of his literary qualifications the Jury would be enabled
to judge from a letter which he had written to the So•
licitor of the Company on the subject of the present ac-
tion. In this letter, he spelled practice, practis ; weight,
naught ; profession, pro, icien ; most, ntoust ; and per-
haps, props. (The Learned Counsel read the letter,
pointing out these and other peculiarities in the spelling.)
--.The Jury Would recollect, that it was not mixing a
draught, or compounding a bolus, which made a man
an apothecary, but the maintenance of an establishment,
and the ability and opportunity of making up the pre-
scriptioos of physicians. Unless the defendant could
prove such a practising as this, the plaintiffs would be en-
titled to recover, and would only ask for a single penalty.
Susanna Male, wife of William Male, living in Park-
street, Regent's Park, said, she became acquainted with
Mr. Bentley in 1822, when he lived at No. 4, George-
street, Hampstead-road, and produced one of his cards.,
The card expressed that Mr. Bentley, surgeon and ac-
coucheur, would be at home till nine o'clock every
morning. He had a shop, fitted up with shelves and
drawers. Being ill about the autumn, she and her sister-
in-law applied to him for medical advice; he felt her
pulse, and told her she had an inward complaint, and a
decline coming on, but he would send some medicine,
from which she would find benefit. He sent some pills and
medicine in a gallipot, which were taken. She found
herself no better, and went to him ;.he said, " You must
not expect to get better directly, because it is an inward
complaint." She and her sister continued off and on to
take medicine till Christmas, when she grew much worse.
Once she proposed a physician, to which Mr. Bentley
objected. Once he gave powders, to operate as emetics,
and directed them to be taken every three hours, how-
ever violently they might operate; she took one; it
operated su violently, that she believed if she had taken
another, she would have died. Afterwards she had a
swelling in her head, and took more medicines. Her
sister took medicines till April, 1823, when she died.—
The witness left off Mr. Bentley's pills, wa3 cupped by

another surgeon, 'and got better. She afterwards re-
ceived a bill, which had not been paid, and took it to
Apothecaries' Hall.
On cross-examination, the witness said she had mentioned the
defendant's name to others, who bad employed bins.
Wiliam Wile, the husband of the last witness, proved
that Mr. Bentley attended him when ill, and supplied
him with medicines. He also shewed witness a book,

from which it appeared he-bad also followed the busi-

ness of an auctioneer in 1820, all round the country,
and had been in partnership with Mr. Davis.
Thomas George, from Park-street, said he met Mr.
Bentley at a Methodist Society, in 1822, when he gave
him one of his bills. In consequence he went to Bent-
ley's house, and he gave him powders, which he was
to take every six hours, for a pain in the side; but he
did not recover. One of his eyes was weak; Bentley
put powder in it, and he had grown worse and worse
ever since. Mr. Bentley said he came from Derby, and
had practised there before he came to settle in London.
He came to town about nine years ago. •
Cross-examined.—The medicines were put into Mr. Male's bill,
who was the witnesi's snn-in-law.
Re-txamined.—lle said he had practised on Winless's wife, which
was not true.

John Hall, of Bury-street, Hampstead-road, proved
that Mr. Bentley attended a child of his in the latter
end of 1822 and beginning r•f 1823, but the child
grew no better. He sent a bill of 11. 16;. 3J. which

was paid.
William Crow said Mr. Bentley attended him, and
endeavoured to persuade him he was very ill, and in a
galloping consumption; his brother would go off in a
gradual consumption. lie sent pills, and the witness
found himself Norse; when Mr. Bentley said, " That
is what 1 want to convince you of "—(ii laugh ) He let
off the pills, and applied to another surgeon.
Two other witnesses prisved that the defendant attended them
when residing in George-street, Hampstead road.
Mr. SCA lILIETT now proposed to trace the defendant's history.
Mr. Wood produced a commission of -bank' opt,
dated the 17th of November, 1821, against the de-
fendant, as a hardwireman, dealer and chapman, and

said the bankrupt told him he was then practising as
a cutter of corns,

The examination proved that the defendant had been trading
as a hatclwareman for five years before June, 1822.
Stephen Davenport said, in 1803 he was at Derby,
when Bentley was apprenticed to Strutt and Co. as a
whitesmith. He might then be about 18. In 1817, the
witness found him living in the neighbourhood of Moor-
gelds, making up parcels of hardware, as if for sale.
This year be went to see him in George-street, where
he was practising as an apothecary and surgeon. He

shewed a book Co exhibit his practice.
Mr. Edward Foz proved, that in 1811 the defendant worked as
a whitesmith at his mill, and continued to work there in 1812.
Mr. Roberts proved that Bentley was employed, from
1801, for seven years and a few months by Messrs. Strutt,
first as an apprentice, and then as a journeyman.
Mr. Robert Ward, of Derby, proved that Bentley
was in the employ of Warner and Co. at their mill,
from Michaelmas, 1814., to Michaelmas, 1815. He saw
him half a dozen times a day, and did not know him
to carry on any other business. Ile came to work at
six in the morning, and remained till seven or eight in
the evening.
Mr. Bowden, a stove-manufacturer, proved, that Bentley came
to work as a smith, in November, 1815, and worked for his father
till October, 1817.
Mr. Osborne, a bookbinder, recollected Mr. Bentley. working as
a smith for Mr. Bowden, in 1816. Ile afterwards made out cata-
logues to sell by auction, and dealt in hardware:
The letter opened by Mr. Scamorrz was then read by Mr. As-
mom who, at the desire of the Learned Counsel, marked the pecu-
liarities of the spelling, much to the amusement of the audience.
This was the case for the plaintiffs.
Mr. BROUGHAM submitted, that the plaintiffs were
bound to prove the allegation in their declaration, that
the defendant had not obtained a certificate from the
Company. He took the distinction to be this—that
wheie an exception was created by a distinct clause,
the burden of shewing that he was within it, lay on the
defendant; bat when it was introduced to qualify the'
penal enactment in its very body, the negative must be
both stated and proved.
Mr. SCA MATT admitted that the negative must be
stated, but denied that it must be proved; and in•
stanced, as exactly in point, the case of convictions
against unqualified persons for sporting, in which every
possible qualification must be negatived, and in which
the proof of qualification was nevertheless wholly cast
on the defendant.
The LORD CHIEN JUSTICE held that the plaintiffs
could not be required to prove a negative ; but gave
leave to the Counsel for the defendant to move, if they
I should think he was in error.
Mr. BROUGilitat then addressed the Jury. He re-
minded them that they were not to try whether the de-
fendant was a man of good education—not even whe-
ther he was qualified to practise as an apothecary? but
whether, in point of fact, he did so practise on or be-
fore the Ist of August, 1815? Some merriment had
been created by the exhibition of his errors in spelling
and style ; but a man might be an excellent compounder I
medicines,.though an indifferent composer of sen-1
tences—as Lord Chatham himself wrote letters, spell..l
ing does " dos ;" and the great Duke of Marlborough,
who was as experienced and as expert in the alt of
killing as any of the Apothecaries' Company, spelled
in a way which he might defy any of the Apothecaries'
Company to rival—(Great laughter). Now he would
prove that the defendant did practise as an apothecary
tOr years, before August, 1815, (and the language of
the record was (6 on or before"), and that, therefore, he
was on this record entitled to a verdict. The Jury
would not regret such a result, when they considered
that this Act, though well intended, was most severe—
that it created and perpetuated a monopoly—and that
the old common law of the country was sufficient to
protect the public, not only without the Apothecaries'
Company, but against them, by the right of action
which it gave to every man who had suffered from im-
proper treatment, by a person pretending to skill.
William HaTtlon said, in 1811, he lived at Derby,
where he married and had three children. 64 1," said
the witness, 66 was ill—Mr. Bentley gave me physic,
which I swear before ALMIGHTY GOD did me good."—
.He attended my first born, and gave him medicines
(A laugh). He worked at Messrs. Strutt's, but he was
continually dabbling in medicines ; he kept a little
drawer under his desk, and mixed up little things.—,
(Laughter.)
John' Bentley, the defendant's brother, said he lived
with him from 1811 6111814, at Derby. He was with
him as assistant in the surgery. The defendant had :a
surgery in his house, witll everything necessary to the
trade. There wete jars, bottles, a pestle and mortar,
weights and scales, and other requisites. He frequently
carried out medicines to patients, and patients came to
the shop. The defendant was educated under a surgeon
at Whitchurch, in Shropshire, and afterwards with Dr.
Fowler, at Derby. When he lived oppositeWerburgh'b