The principle of law, both in civil and criminal cases is that a person is liable for what is done under his presumed authority. (c) 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. (d) 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. (e) 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. (ƒ) There seems, however, to be 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. (g) 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 doue by them without his knowledge, and contrary to his general orders. (h)

So, in a prosecution for a penalty in selling liquor without license, proof that the sale was made by a person in the defendant's shop, in his absence, and without showing any general or special employment of such person by the defendant in the sale of liquors, is sufficient prima facie evidence against him. (2) So, the proprietor 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

(c) Reg. v. King, 20 U. C. C. P. 248, per Hagarty, C. J.; see also Atty. Gen. v. Siddon, 1 Tyr. 47.

(d) Ibid.

(e) Reg. v. Brewster, 8 U. C. C. P. 208.

(f) Ibid.

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

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

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

distant from the place of publication, and was confined to his house by illness when the paper complained of appeared. (1) Where the defendant was absent in New York, and his wife, who was intrusted with the ordinary management of the defendant's business in his absence, had a wild duck in her possession, contrary to the Lower Canada Game Act, 22 Vic., c. 103, the court 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. (k)

Upon information for unlawfully selling beer, under 4 & 5 Wm. IV,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," it was 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. ()

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

The procurement may be personal, or through the intervention of a third person. (n) 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

(j) Ex parte Parks. 3 Allen, 241, per Carter, C. J.

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

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

(m) Ru-s. Cr. 59.

(n) Rex v. Cooper, 5 C. & P. 535; Arch. Cr. Pldg. 11.

design of committing a felony. (0) But there must be some sort of active proceeding on the part of the individual to render him an accessory; he must incite, procure or encourage the act; and the mere consent on the part of a prisoner to hold stakes put up by two persons, who, having quarrelled, had agreed to fight with their fists at a future time, was held not to be such a participation as is necessary to constitute him an accessory before the fact to the crime of manslaughter, one of the combatants having died from wounds received in the fight. (p) The procurement must also 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. (q) So, if the accessory order or advise one crime, and the principal intentionally commit another, the accessory will not be answerable. (r) But it is clear that the accessory is liable for all that ensues upon the execution of the unlawful act commanded; (s) and a substantial compliance with his instigation, varying only in circumstances of time or place, or in the manner of execution, will involve him in the 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. (t) A wife is not punishable as accessory for receiving her husband although she knew him to have committed a felony; (u) for she is presumed to act under his coercion. But no other relation of persons can excuse the wilful receipt or assistance of felons. (v)

(0) Rex v. Cooper, 5 C. & P. 535.

(p) Reg. v. Taylor, L. R. 2 C. C. R. 147.

(q) Arch. Cr. Pldg. 11.

(r) Ibid. 12.

(8) Ibid.

(t) Russ. Cr. 62.

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

(v) Arch. Cr. Pldg. 14.

(w) Ibid. 15.

(x) Russ. Cr. 61; Dwarris, 518; and see 31 Vic., c. 72; Reg. v. Smith, L. R. 1 C. C. R. 266; per Bovill, C. J.

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. (w)

As to felonies created by statute, if an Act of Parliament 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. (x) It is a maxim that accessorius sequitur naturam sui principalis, and, therefore, an accessory cannot be guilty of a higher crime than his principal. (y)

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 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, inquired 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 accessory has been committed.

(y) Russ. Cr. 61.

CHAPTER III.

OFFENCES PRINCIPALLY AFFECTING THE GOVERNMENT, THE

PUBLIC PEACE, OR THE PUBLIC RIGHTS.

Coinage offences.-These offences are now regulated by the 32 & 33 Vic., c. 18. Where a prisoner ordered dies of a maker impressed with the resemblance of the sides of a sovereign, and the maker gave information to the police, who communicated with the authorities of the mint, and the latter, through the police, permitted him to give them to the prisoner, it was held no lawful authority under section 24. (a) It is necessary in the indictment to negative lawful authority or excuse, notwithstanding that the burden of proof lies upon the accused; but the word "excuse" includes "authority," and therefore the word "excuse" alone in an indictment under this section is good. (b) A prisoner knowingly in possession of dies has sufficient guilty knowledge to constitute felony, whatever his intention as to their use may be, for there is nothing in the act to make the intent any part of the offence. (c)

The 32 & 33 Vic., c. 29, s. 26, applies to a trial on an indictment under s. 12 of the Coinage Act for feloniously having in possession counterfeit coin after a previous conviction for uttering counterfeit coin; and, therefore, the previous conviction cannot be proved until the jury find the prisoner guilty of the subsequent offence: (d) and a prisoner, indicted under s. 12 of the Coinage Act for the felony of uttering, after a previous conviction for a like offence, cannot be convicted of the misdemeanor of uttering if the jury negative the previous

(a) Reg. v. Harvey, L. R. 1 C. C. R. 284.

(b) Ibid.

(c) Ibid.

(d) Reg. v. Martin, L. R. 1 C. C. R. 214; 39 L. J. (M. C.) 31; Reg. ▼ Goodwin, 10 Cox, 534, overruled.