sumed authority. (a) The owner of a shop is liable for any unlawful act done therein in his absence by a clerk or assistant in the ordinary course of business, for prima facie it would be his act; but it would seem that if the act was wholly unauthorized by him, and out of the usual course of business, he might escape personal responsibility. (b) But the agent is also liable for an unlawful act, although he may have the express or implied authority of his principal for its commission. (c) And a party who maintains a public nuisance as the agent of another, is a principal in the misdemeanor, and cannot justify on the ground of his agency. (d) It seems there is a great distinction between the authority or procurement which will render a man liable civilly and that which will render him liable criminally. In the former, the authority must be strictly pursued; but, in the latter, the principal may be criminally liable, though the agent deviate widely from his authority. (e) Thus the owner of works carried on for his profit by his agents is liable to be indicted for a public nuisance caused by acts of his workmen in carrying on the works, though done by them without his knowledge, and contrary to his general orders. (f)

So, in a prosecution for a penalty in selling liquor without licence, proof that the sale was made by a person in the defendant's shop, in his absence, and without shewing any general or special employment of such person by the defendant, in the sale of liquors is sufficient prima facie evidence against him. (g) So, the proprietor

(a) Reg. v. King, 20 U. C. C. P. 248, per Hagarty, J.; see also Atty. Genl. v. Siddon, 1 Tyr. 47; Atty. Genl. v. Riddle, 2 C. & J. 498.

(d) Ib.

(e) Parkes v. Prescott, L. R. 4, Ex. 182, per Byles, J.

(f) Reg. v. Stephens, L. R. 1 Q. B. 702, 35 L. J. Q. B. 251.

(g) Ex parte Parks, 3 Allen, 237.

of a newspaper was held indictable for a libel published therein, though he took no actual share in the publication, and lived one hundred miles distant from the place of publication, and was confined to his house by illness when the paper complained of appeared. (a) Where the defendant was absent in New York, and his wife, in his absence, had a wild duck in her possession, contrary to the Lower Canada Game Act, 22 Vic., c. 103, and was entrusted by the defendant with the ordinary management of his business in his absence:-Held that the defendant was responsible, on the ground that the wife was acting as the agent of the husband, and should be presumed to have his authority for the illegal act complained of; and a conviction of the husband (the defendant), and imposition of a penalty was consequently sustained (b)

Upon information for unlawfully selling beer, under 4 & 5 Wm. 4, c. 85, s. 17, it was proved that the appellant's wife had actually supplied the beer to three persons who had asked the appellant for beer, and to whom he had said, whilst pointing to his wife, "You must ask her" :-Held that upon this evidence the conviction was right. In this case there was an appeal against the decision of the justices. It was argued that if the wife acted as agent for her husband, they both ought to have been summoned and convicted together. However, the Court gave judgment for the respondent. (c)

It is conceived that the principles involved in the foregoing cases will apply to principals and accessories in felonies. In other words, that the authority or procurement which will in misdemeanors render a man liable as a principal for the act of his agent, will, in felonies, render him liable as an accessory before the fact; for it

(a) Ib. 241, per Carter, C. J.; Rex v. Gutch, M. & M. 433.

(b) Reg. v. Donaghue, 5 L. C. J. 104.

(c) Reg. v. Smith, 5 U. C. L. J. 142.

is a principle of law that he who procures a felony to be done is a felon. (a)

The procurement may be personal, or through the intervention of a third person. (b) It may also be direct by hire, counsel, command, or conspiracy; or, indirect, by evincing an express liking, approbation, or assent to another's felonious design of committing a felony. (c) The procurement must be continuing; for if the procurer of a felony repent, and, before the felony is committed, actually countermand his order, and the principal, notwithstanding, commit the felony, the original contriver will not be an accessory. (d) So, if the accessory order or advise one crime, and the principal intentionally commit another, the accessory will not be answerable. (e) But it is clear that the accessory is liable for all that ensues upon the execu tion of the unlawful act commanded. (f) A wife is not punishable as accessory for receiving her husband although she knew him to have committed a felony (g); for she is presumed to act under his coercion. But no other relation of persons can excuse the wilful receipt or assistance of felons. (h)

To constitute the offence of accessory after the fact, it is necessary that the accessory have notice, direct or implied, at the time he assists or comforts the felon, that he had committed a felony; and it is also necessary that the felony be complete at the time the assistance is given. (i) As to felonies created by statute, if an Act of Parlia

(a) Russ. Cr. 59.

(b) Reg. v. Earl of Somerset, 19 st. tr. 804; Reg. v. Cooper, 5 C. & P. 535; Arch. Cr. Pldg. 11.

(c) Ib.

(d) Ib. 11.

(e) Ib. 12.

(ƒ) Ib. 12.

(g) Reg. v. Manning, 2 C. & K. 903 n. ; Arch. Cr. Pldg. 14.

(h) Ib. 14.

(i) Ib. 15.

ment ordain an offence to be felony, though it mention nothing of accessories before and after the fact, yet virtually and consequentially those that counsel or command the offence, are accessories before the fact, and those who knowingly receive the offenders are accessories after. (a) It is a maxim that accessorius sequitur naturam sui principalis, and, therefore, an accessory cannot be guilty of a higher crime than his principal. (b)

An accessory is, in some cases, relieved from responsibility with his principal, when the latter does not act in pursuance of his authority and instructions. If the principal totally and substantially varies from the terms of the instigation; if, being solicited to commit a felony of one kind, he wilfully and knowingly commit a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. But if the principal complies in substance with the instigation of the accessary, varying only in circumstances of time or place, or in the manner of execution, the accessory will be involved in his guilt; and, even when the principal goes beyond the terms of the solicitation, yet, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessory to that felony. (c)

The 31 Vic. c. 72, makes provision for the trial of accessories before and after the fact. This statute alters the old rule by which an accessory could not be brought to trial until the guilt of his principal had been legally ascertained by conviction. By this act, accessories before the fact are triable in all respects as principal felons; and every principal in the second degree is punishable

Russ. Cr. 61.

Ib.
Russ. Cr. 62.

in the same manner as the principal in the first degree is punishable.

By s. 8, in the case of a felony wholly committed within Canada, the offence of any person who is an accessory either before or after the fact, to such felony, may be dealt with, enquired of, tried, determined, and punished by any court which has jurisdiction to try the principal felony, or any felonies committed in any district, county, or place in which the act by reason whereof such person shall have become such accessary has been committed