victualling house. On behalf of the defendant it is contended by Mr. Robinette that the statute under which the information was laid being a penal statute, it must be brought home personally to the defendant before a conviction could be entered against him, and that the house was a victualling house for which a license had been properly issued and that the case was within the decision of Queen v. Alberti, 3 Can. Cr. Cases 356.

Mr. Chisholm, for the prosecution, contended that the Alberti case did not apply, as in that case it was shown to be a regular victualling house, and conducted as such, while here the defendant's business is not such a business, that the license does not enable the defendant to work on Sunday per se, that ice cream soda was not taken as a food, and that the defendant is personally liable, he having become responsible for the actions of his brother and his employees.

With reference to the liability of the defendant in Regina v. Bleasdale (1848), 2 C. & K. 764, it was held that if a man does by an innocent agent a felony, the employer, and not the agent, is the accountable criminal. The case of Regina v. Bleasdale was referred to by the Appellate Court in Sieman v. Commonwealth, 21 Am. Law Reg. 245, where it was held that under a penal statute prohibiting worldly employment on Sunday, one whose business is carried on on that day by his employee under his authority is liable to the penalty; in such case defendant may be convicted upon evidence that his store was open on Sunday, that an employee was making sales, and that the defendant himself was present in the store part of the day. The general rule may be thus formulated: a principal is not criminally liable for the acts of his agent unless the act be done by his command or with his assent express or implied. (See Queen v. Stevens (1866), L.R. 1 Q.B. 702.) The evidence in this case shows that the acts were done at the request of the defendant by his employees, and, therefore, he alone is responsible criminally. The Lord's Day Act is fully considered in the case of Queen v. Alberti in the exhaustive judgment of the late Judge McDougall.

I agree with the conclusions that that able and learned Judge arrived at in that case. He there found that Alberti was conducting a business of a victualler. At page 368 he states: "As I bave said before in an earlier part of this opinion, I am satisfied from the evidence that the defendant was carrying on on Sunday, the 25th June, the date of his alleged offence, strictly and exclusively his business as a victualler. His candy department, if the small stock he carried can be so described, was closed to the public."

In the present case I am satisfied that the defendant was not strictly and exclusively carrying on the business of a victualler, but on the other hand he was carrying on the business of a candy and ice cream store, that he obtained the victualling house license in order to enable him to sell ice cream soda and ice cream on Sundays during the summer months. The language of Judge Woods in Mueller v. State, 76 Ind. 310, with reference to the sale of cigars on Sundays, might properly be applied to the sale of ice cream soda by the defendant. At page 315 he says: "It is hardly probable that the law-makers contemplated that the cravings of a morbid and unnatural appetite should be deemed to create such an imperious necessity for appeasement as that the general requirement for Sunday observance should yield to it, while the supplying of the ordinary necessities of life, like food and clothing, by purchase and sale out of the stores, should be forbid

den."

The fact that the defendant had some bread on the counter in a glass case does not entitle him to be considered a victualler under the meaning of that word as generally understood. In Com. v. Crowley (1888), 14 N.E. Rep. 459, it was held that the Public Statutes of Massachusetts, chap. 98, sec. 2, forbidding the keeping open of one's shop on the Lord's Day, or doing any manner of labor, business or work except works of necessity or charity, "as amended by Statute, 1886, chap. 82, which provides that this section shall not apply to sales by bakers between the hours..... of bread and other articles of food usually dealt in by them," does not include in the exception of the amendment all persons

who deal in the products of bakeries, and it was held that a person who keeps a shop for the purpose of selling groceries, fancy articles, bread, pastry and milk, but who does not make or cause to be made the bread and pastry which he sells, but buys it from time to time from others, is not a baker in any sense, and the fact that he has a small stove in the rear of his shop in which his wife sometimes bakes a few cookies and ginger-snaps which he places in his show case and sells with the bread and pastry, is not of such importance as to warrant a jury in finding that he is a baker. It has frequently been held that selling soda water on Sunday as a beverage in connection with drugs is a violation of the Lord's Day Act. In Splane v. Com. (1888), 12 Atlantic Reporter 431, the Court, in deciding that selling soda water on Sunday was a violation of the Act, said: "It can hardly be said with any regard to the significance of language that a drug store falls. within the proviso as to the character of the place where the victuals were to be dressed, or that soda water is within the ordinary meaning of victuals. It would sound somewhat strange to hear one designate the "charging" of a soda fountain and the drawing of a glass of soda for use as "dressing victuals." The word used in the statute of 29 Charles II., corresponding in effect with the word "victuals" in our Act, is "meat," and Woodward, J., in Omit v. Com., 21 Pa. State 432, says the word "meat" in the proviso to that statute is exactly equivalent to "victuals" in inns, and he adds: "I have found no case in which anybody alleged that a right to sell meat comprehended a traffic in liquors

. Any worldly employment or business whatsoever is the thing forbidden, and dressing victuals for the use of sojourners, strangers and travellers is the thing excepted, instead of victuals and drink for travellers, inmates, lodgers and others." So in Kepner v. Keefer, 6 Watts 233, Kennedy, J., says: "The words of our Act are much more comprehensive than those of the Statute, 29 Charles II., sec. 1, and are sufficient to embrace every species of worldly business not therein specifically excepted, whether it appertains to persons of ordinary calling or not. The Act forbids all worldly employment or business whatever, even works of

charity or necessity, except those which are enumerated in the proviso (Johnston v. Com., 22 Pa. St. 113)." "Thus the law stands in Pennsylvania to-day, and it is somewhat startling to hear it solemnly argued at this day that people may carry on worldly business of all kinds provided they deal in something which may be used for food. . . . . . It is very clear to us that selling soda water as a beverage on Sunday in connection with drugs or other goods is a violation of the Act, 1794, sec. 1: 'If any person shall do or perform any worldly employment or business whatever on the Lord's Day, commonly called Sunday (works of charity or necessity only excepted); provided that nothing herein contained shall be construed to prohibit the dressing of victuals in private families, bake-houses, inns or other houses of entertainment for the use of sojourners, travellers, or strangers,

etc.

Holding, as I do, that the defendant does not strictly and exclusively carry on the business of a victualler, but that he obtained the license in order to give him a color of right to sell ice cream soda, etc., on Sunday, I am of the opinion that the conviction herein was properly made. I therefore dismiss the appeal

with costs.

Robinette, K.C., for defendant.

W. C. Chisholm, for prosecutor.

Note: Sunday observance-Sale of ice cream.

Conviction affirmed.

The decision in The Queen v. Albertie (1900), 3 Can. Cr. Cas. 356, was as follows:

(1) The business of keeping a victualling house may be lawfully carried on on Sunday as a "work of necessity" within the exception contained in The Lord's Day Act of Ontario, and the keeper may supply any article which may fairly be considered food or victuals.

(2) Ice cream is a food, and the keeper of a victualling house may lawfully sell the same to his customers on Sunday, whether or not other

foods are

supplied therewith.

For the "Lord's Day Act," C.S.U.C. 1859, c. 104, now in force in Ontario, see 7 Can. Cr. Cas., p. 332, and the decision of the Privy Council in Attorney-General v. Hamilton Street Railway, 7 Can. Cr. Cas., p. 326, holding the statute R.S.O. 1897, c. 246, to be ultra vires.

[HALIFAX COUNTY COURT, N.S.]

BEFORE HIS HONOUR W. B. WALLACE, COUNTY JUDGE.

THE KING v. STEVENS.

Liquor License-Keeping for sale and illegal selling-Two offences improperly joined in one information-Conviction for keeping for saleOther charge not considered by magistrate-Certificate of dismissal― N.S. Summary Convictions Act, form S.-Cr. Code sec. 682-Code form CCC.

1. Where charges of selling liquor and of keeping liquor for sale were improperly joined in one information, but the conviction was for keeping only and the charge of selling was not dealt with by the magistrate nor was the information amended, the defendant is not entitled to a certificate under sec. 682 of the Code that the charge of selling was dismissed.

DECIDED: April 14, 1904.

On March 2nd, 1904, Margaret Stevens, the defendant, was convicted by John MacDougall, Esq., Stipendiary Magistrate for the county of Halifax, for having sold liquor within six months from the date of the information, without license, and in violation of the Nova Scotia Liquor License Act.

The information evidence and conviction in a previous conviction of the same defendant before the same magistrate were put in evidence by counsel for defendant at this trial before the magistrate, whereby it appeared that defendant on information dated September 15th, 1903, had been charged with keeping liquor for sale, and also in the same information with selling liquor within six months previous to the date of information without license, and had been under said proceedings convicted on October 7th of keeping for sale without license within six months previous to the date of said information. At that earlier trial no further action had been taken with regard to the charge for unlawful selling.

In the later trial, in March, before the magistrate when defendant was convicted for unlawfully selling liquor, counsel for defendant had asked the magistrate for a certificate of dis