Thompson v. Staats — 15 Wend. 395

Majority

p. 395

Thompson vs. Staats.

Headnote

It is no defence to a party prosecuted for practising physic without being authorized by law, that the medicine he administered was patent medicine, and that he administered it as the assignee of the patentee.

Error from the Albany mayor’s court. Staats sued Thompson in the justice’s court of the city of Albany for practising physic, not being authorized by law. It was proved that the defendant visited a sick man, felt his, pulse and gave him medicine, which he took, and charged and received two dollars from the patient. The defendant offered in evidence letters patent, granted under the laws of the United States to Samuel Thompson, 28th January, 1823, authorizing him and his assigns, for the term of 14 years, to make, construct, use, and vend to others to be used, a certain improvement in the preparing, mixing, compounding, administering and using certain medicines, and offered to prove that the defendant (John Thompson) was an assignee of the patentee, and that the medicine administered by him to the patient was composed of the materials, and compounded in the manner describ.

p. 396

ed in the'schedule annexed to the letters patent; and insisted that as such assignee he.had the right under the patent, to administer such medicine, without being licensed to practice physic, as required by the laws of this state. The evidence was objected to by the plaintiff and rejected by the court. The cause Was tried by a jury, who found a verdict for the plaintiff for ten dollars, for which sum judgment was rendered. The mayor’s court of Albany, oh certiorari, affirmed the judgment, and the defendant sued out a writ of error,

J. Lansing, for plaintiff in error.

• & Dutcher &f J. Harris, for defendant, in error.

By the Court,

The letters patent were properly rejected as irrelevant. They only authorize the patentee and his assigns to make, construct, use. and vend his newly discovered compound of medicine; not “ to practise physic or surgery,” within the regulations of the statutes of this state, as found in 1 R. S. 454, <§> 16 and 19. This affords a sufficient justification for the decision, if there were no other reasons for it. When the terms of the patent are broad enough to enable the patentee to put himself upon a footing with these statutes, it will be time enough, to consider the constitutional question raised by the defendant, how far the law of congress under which the patent was granted, and the laws of this state regulating the practice of physic and surgery, come in collision. The defendant pretended to no authority to practise physic under the laws of the state,.and whether he had thus practised was a question of fact which the jury found against him,

Judgment affirmed.