Page:The Green Bag (1889–1914), Volume 17.pdf/636

 NOTES OF RECENT CASES destroyed accidentally while in custody of the officers of the customs. Such merchandise was saved from destruction by fire and the salvors filed a petition against the United States for an award of salvage. For the government it was contended that the statute confided to the sec retary of the treasury an absolute and irreviewable discretion to refund in such a case or refuse to do so as he might see fit. But it was held that the secretary might not refuse arbitrarily or ca priciously, and where all the facts enumerated in the section are presented to him, undisputed, it should be assumed that that would satisfy him that the case was within the terms of the section. It is also decided that under the circumstances existing in the case the government had such an interest in the property that it should respond to those whose services prevented the loss which it would otherwise have sustained through the refund. DAMAGES.

(REMOTENESS) MISSOURI SUPR-EME COURT. An item of damage for breach of a building con tract which on its face seems remote, and is so held by the court, is put forward in Harrison v. Craven, 87 Southwestern Reporter. 962. Plain tiff employed defendant to purchase land on which, together with land already owned by him. plain tiff intended to erect a building. Defendant bought the land in his own name and refused to convey to plaintiff, except on payment of a price largely in excess of that paid by him. Plaintiff was thereby unable to commence work on the building until over a year from the time when he intended to do so. In the meantime the price of labor and materials for building increased. It was not shown that when the agency was created plaintiff had any contract for the erection of the building, nor that defendant knew that the price of labor and materials were going up. In an action to compel defendant to convey to plaintiff and for damages for the breach of the contract of agency, a recovery for the increased price of labor and materials for building was denied on the ground that this element of damage was too remote. DRUGGISTS. (NEGLIGENCE IN FILLING PRE SCRIPTION — JUDICIAL NOTICE) NEW YORK SUPREME COURT — TRIAL TERM. A case of such importance as to justify mention, although it was decided at trial term, is Laturen •u. Bolton Drug Co., 93 New York Supplement, 1035. A physician gave a prescription to his patient calling for "Elixir Pinus Comp. cum

607

Heroin." The compound' called for was a pro prietary medicine and was known as Elixir Pinus Compositus "with" Heroin. The same manu facturer ' also made an Elixir Pinus Compositus without any Heroin. The druggist to whom the prescription was taken examined a pamphlet issued by the manufacturer and discovered that the proportion of Heroin contained in the mix ture known as Elixir Pinus Compositus with Heroin was one twenty-fourth of a grain to the dram. Acting on this information the druggist added one twenty-fourth of a grain of Heroin per dram to the Pinus Compositus. As a mat ter of fact the Elixir Pinus Compositus con tained a certain porticn of morphine which was omitted in the Elixir Pinus Compositus with Heroin, that substance itself being a preparation of morphine. The prescription as compounded consequently contained more morphine than the physician intended. On these facts it is held that the druggist was not negligent in compound ing the prescription, the negligence, if any, being that of the physician in not giving his directions more explicitly. This is the point which seems to be of chief importance, and to which the largest portion of the opinion is devoted, although the case might well have been decided on the common sense view of the matter taken by the court when it says that it will take judicial notice of the scientific fact that one-tenth of a grain of mor phine, taken every four hours, could not have a poisonous effect. This case seems to decide a point that lies be tween the general rule of liability of druggists for compounding dangerous medicines, as held in Thomas v. Winchester, 6 K.Y. 397, 57 Am. Dec. 455, and followed generally, Peters v. Johnson & Co., 50 W. Va. 644, 57 L. R. A., 428, and the rule of non-liab lity for selling unknown dangerous proprietary medicines in the unbroken package, as stated in West v. Emanuel, 198 Pa. St. 180, 53 L. R. A. 329. FISH AND GAME. (OWNERSHIP — NON-RESI DENT LANDOWNERS) ARKANSAS SUPREME COURT. The precise nature and extent of the right of an owner of land to take fish and game thereon is determined in State v. Mallory, 83 Southwestern Reporter, 955. The particular question at issue was whether Arkansas Act, 1903, p. 306 declaring it unlawful for any non-resident to hunt or fish at any season of the year, violated the provision of the Federal Constitution guarantying to all per sons the equal protection of the law. The de fendant Mallorv was a non-resident who owned