business; and they have been held answerable criminally in such cases, although the particular act or sale of publication was done without their knowledge.1 In the recent case of Rex v. Gutch et al.,2 where it appeared that Gutch was residing at a distance, was in ill health, and not interfering with the conducting of the paper, the rule is thus stated. "A person who derives profit from, and who furnishes means for carrying on the concern, and intrusts the conduct of the publication to one whom he selects, may be said to cause to be published what actually appears and ought to be answerable, although you can not show that he was individually concerned in the act of publication." But in that case Lord Tenterden, in delivering the opinion of the court says: "I do not mean to say that some possible case may not occur in which he would be exempt; but generally speaking he is answerable."

Another class of cases where the liability of the master for the criminal acts of the servant has been recognized, has arisen under revenue laws and police regulations. In Attorney-General v. Siddon 3 (a case of concealing smuggled goods), it was held that a trader is liable to a penalty for the illegal act of a servant done in the conduct of his business, with a view to protect the smuggled goods, though the master be absent at the time the act is done. It seems here again to have been held only prima facie evidence, and that the master might have introduced evidence for the purpose of rebutting such prima facie case.

4

In Attorney-General v. Riddle, reported as Attorney-General v. Riddell, which was an information under the statute of 1 George IV.,5 prohibiting the delivery of paper not tied up and labeled, and requiring before it is removed from the place of manufacture that it be enclosed in a labeled wrapper, the evidence was that the wife of the defendant having authority to do certain acts in his trade of a paper manufacturer, pledged paper which had no wrapper or label on it; the court held that the authority of the wife was a question for the jury and that it ought to have been left to the jury to decide whether or not the acts of the wife under the circumstances stated, were done by the authority of the husband.

It seems to us that the case of a sale of liquors, prohibited by law at the shop or establishment of the principal by an agent or servant usually employed in conducting his business is one of that class in which the master may properly be charged criminally for the act of the servant. But in looking at the question presented by the bill of exceptions in the present cases and considering what should be stated as the rule as to the responsibility of the principal or master in such cases, the court

11 Hawk., ch. 73, sec. 10 ;Rex v. Walter, 3 Esp. 21.

21 Moo. & M. 437.

81 Cromp. & J. 220; s. c.1 Tyrw. 41. 42 Cromp. & J. 493; s. c. 2 Tyrw. 523. 6 ch. 58.

have come to the opinion that the law was stated too strongly upon that point against the defendant, inasmuch as the defendant, under the instructions given,might have been found guilty of the charge in the indictment if a sale had been made in his shop by any person in his employment without any reference to the circumstances under which the sale was made, and although against the will and in contravention of the orders of the defendant.

We think that a sale by the servant in the shop of the master is only prima facie evidence of such sale by the master as would subject him to the penalty for violating the statute forbidding the sale of spirituous liquors without license; that the relation of these parties, the fact the defendant was in possession of the shop and was the owner of the liquor, and that the sale was made by his servant, furnish strong evidence to authorize and require the jury to find the defendant guilty. But we can not say that no possible case can arise in which the inference from all these facts may not be rebutted by other proof. Unexplained they would be sufficient to convict the party. So, too, it should be understood that merely colorable dissent, or a prohibition not to sell, however publicly or frequently repeated, if not made bona fide, will not avail. But if a sale of liquor is made by the servant without the knowledge of the master and really in opposition to his will, and in no way participated in, approved or countenanced by him, and this is clearly shown by the master, he ought to be acquitted.

New trial granted.

PRINCIPAL AND AGENT-BURDEN OF PROOF OF AGENCY ON PROSE

CUTION.

COMMONWEALTH v. MASON

[12 Allen, 185].

In the Supreme Judicial Court of Massachusetts, January Term, 1866.

1. Burden of Proof of Agency on Prosecution. - In a prosecution against a principal for illegal sales of liquor made by an agent, the burden is on the prosecution to establish the agency.

2. Case in Judgment - Erroneous Instructions. — On a trial it did not appear that the defendant was present at the time alleged, nor who were the persons in charge of the saloon or occupied in making any of the sales. The judge instructed the jury that they "have a right to consider whether it is probable that a mere stranger to the defendant would or could get access to the possession of the saloon in the day time, and continue to do so for the length of time spoken of by witnesses, and that the fact that the place was left open by a servant of the defendant could be proved, or is provable by circumstantial evidence, but must not be got at or supplied by mere conjecture." Held, error.

Complaint for doing business in violation of the statute for the The business sought to be proved conliquors in a saloon kept by the defend

observance of the Lord's day. sisted in the sale of cigars and

ant.

At the trial in the Superior Court, before Ames, J., there was evidence tending to prove that the sales were made, on the day alleged in the complaint, in a saloon of the defendant, but it did not appear that he was personally present at the time, nor who were the persons in charge of the saloon or occupied in making any of the sales. And there was evidence tending to show that the defendant was out of the Commonwealth on the day alleged, and for two or three weeks before. The defendant requested the court to rule that on this evidence he was entitled to an acquittal; but the judge submitted the case to the jury, instructing them, amongst other things, that "though there was no direct evidence who the person was who opened the saloon and did business there, yet the jury had a right to consider whether it was probable that a mere stranger to the defendant would or could get access to and possession of the saloon in the day time, and continue to do so for the length of time spoken of by the witnesses; and that the fact that the place was kept open by a servant of the defendant could be proved or is provable by circumstantial evidence, but must not be got at or supplied by mere conjecture."

The jury returned a verdict of guilty, and the defendant alleged exceptions.

E. Avery, for the defendant.

Reed, Attorney-General for the Commonwealth.

ness.

DEWEY, J. Upon one point we think the judge erred in his instructions to the jury. The defendant had been absent from the Commonwealth for sixteen days previous to the time of the alleged offense. He was only therefore to be charged with a participation in the alleged criminal acts by connecting him with the persons making sales on the 19th of November as servants or agents authorized to conduct his busiBut the case finds that it did not appear who were the persons that made the sales complained of. The persons being unknown, and no connection between the defendant and those persons being shown, the defendant asked the court to instruct the jury that he was entitled to an acquittal. The judge, after stating the general rule upon this point very accurately, qualified it by the erroneous instruction that "the jury had a right to consider whether it was probable that a mere stranger to the defendant would or could get access to and possession of the saloon in the day time, and continue to do so for the length of time spoken of by the witnesses." The burden was on the government to establish the fact that the persons who made the sales were agents

of the defendant. Probability of guilt is not sufficient to authorize a conviction. The jury are to be satisfied beyond a reasonable doubt of the facts necessary to establish the guilt of the accused, In the opinion of the court, the exception on this point must be sustained.

Exceptions sustained.

LIABILITY OF PRINCIPAL-HIS AUTHORITY MUST BE EXPRESS NOT

IMPLIED.

PATTERSON v. STATE.

[21 Ala. 571.]

In the Supreme Court of Alabama, June Term, 1852.

1. A Principal who Authorizes an Illegal Act of an Agent is liable for it - but the authority must be express and not implied.

2. Case in Judgment. —A. was indicted for illegal sales of liquor made by his clerk in his absence. The jury were instructed that if A. had previously sanctioned similar sales by the clerk or if they believed that if he had been present he would have done as the clerk did, they should find him guilty. Held, error.

ERROR to the Circuit Court of Wilcox.

Tried before the Hon. E. PICKENS.

Watts, Judge & Jackson, and A. P. Bagby for plaintiff in error.
M. A. Baldwin, Attorney-General, contra.

CHILTON, J. The defendant Patterson was indicted for selling spirituous liquors, viz.: a half gallon of rum, etc., to a slave, without the written permission required by the statute. It appears that the liquor was sold by the defendant's clerk in his absence. The court charged the jury, that, if they believed the defendant was about at the time the clerk sold the liquor, and knew nothing about it, he was not guilty; but if the selling to slaves under similar orders had been previously sanctioned by the defendant, and that the defendant if he had been present, would have done as the clerk did, then they were authorized to find him guilty.

This was equivalent to charging the jury, that they were authorized to imply the clerk's authority to sell in the manner he did from the ratification of his previous acts by the principal, and that if, in this case, he was doing what the master, if present, would have done, then the master was guilty, as the clerk acting for him had not transcended his authority. This charge was erroneous. The principal is bound, if he authorized or co-operated in the illegal act of the clerk; but we think this must be an express, not an implied authority. We have no right

to conclude that, because he has sanctioned previous violations of the law, he will continue to do so; on the contrary, as every party is to be presumed innocent until his guilt is made manifest, we should presume that he repented his former transgression, and therefore did not assent to the subsequent violation. At all events, we can not imply an authority. The judgment is reversed and cause remanded.

ILLEGAL SALE "BY AGENT OR OTHERWISE". - LIABILITY OF

PRINCIPAL.

ANDERSON V. STATE.

[22 Ohio St. 305.]

In the Supreme Court of Ohio, December Term, 1872.

Statute as to Illegal Sale by " Agent or Otherwise "-Sale by Agent against Instruction of Principal. — The defendant was indicted for an illegal sale made by his agent under a statute declaring it unlawful for "any person or persons by agent or otherwise " to sell intoxicating liquors. Held, that the sale by the agent was made without his authority and against his directions was a good defence.

ERROR to the Court of Common Pleas of Lorain County reserved in the District Court.

The plaintiff in error was indicted in the Court of Common Pleas of Lorain County, for unlawfully selling intoxicating liquor to a minor, in violation of the statute.

The State introduced evidence tending to prove that the defendant, at the time of the acts charged in the indictment, was the owner of a saloon in said county, which was managed and conducted by one Ingersoll as his clerk and agent; that the defendant also kept and managed a grocery store in a building some ten rods distant from said saloon, and only went to the saloon occasionally; that, on the day named in the indictment, said Ingersoll, acting as agent of defendant, unlawfully sold intoxicating liquors to one Bartlett, a minor. The defendant, in his turn, offered evidence tending to prove that he employed Ingersoll only to make lawful sales; that he repeatedly gave him most strict and positive instructions to sell no intoxicating liquor to any minor, and that in making said sale to Bartlett, Ingersoll had acted without authority from defendant and without defendant's knowledge, but the court excluded said evidence from the jury.

The defendant asked the court to charge, that if Ingersoll made sale in violation of the instructions of his principal, and contrary to his