guilty of an attempt to steal, and as the evidence established, the prisoner had counselled and procured the doing of that act, and as such attempt was a misdemeanor, being an attempt to commit a felony, the pri soner, under the 31 Vic., c. 72, s. 9, was properly con victed. (a) This statute is clear, that if the prisoner was accessory before the act, he could be indicted as if he were personally present. (b)

J. and T. were driving a trap along the turnpike road for a lawful purpose. J. got out of the trap, and went into a field and shot a hare, which he gave to T., who had remained in the trap. J. having been convicted of trespass in pursuit of game, an information was laid under the 11 & 12 Vic., c. 43, against T., charging him with being present aiding and abetting. On a case stated by the justices, it was held that there was abundant evidence on which the justices might have come to the conclusion that both were engaged in a common purpose, and that T. was guilty. (c)

"Upon an indictment against E., H., and another for stealing and receiving, it was proved that H. was walking by the side of the prosecutrix, and E. was seen just previously following her. The prosecutrix felt a tug at her pocket, and found her purse gone, and, on looking round, saw H. walking with E. in the opposite direction, and saw H. handing something to him. The jury were directed that if they did not think from the evidence that E. was participating in the actual theft, it was open to them on these facts to find a verdict of receiving. The jury found H. guilty of stealing, and E. of receiving: Held that upon the finding of the jury, E. was not a principal in the second degree, as the jury had not found

(a) Reg. v. Esmonde 26 U. C. Q. B. 152.

(b) Ib., per Hagarty, J.

(c) Stacey v. Whitehurst, 13 W. R. 384.

that he was acting in concert with the other prisoner in the theft, and that the conviction was right as well as the direction to the jury. It was objected, that upon the facts proved the jury should have been told to find E. guilty of stealing or of no offence. Upon the facts he was a principal in the second degree, aiding and abetting, present, and near enough to afford assistance. Williams, J.: that is not enough to constitute a principal in the second degree; there must be a common purpose and intention. Wightman, J., thought that the jury might very well have inferred concert, but they had not done so. (a)

A count alleging that A. and B., on the day and year aforesaid, and at the village of A. unlawfully, fraudulently, and knowingly were present, aiding, abetting, and assisting the said C., the misdemeanor aforesaid to commit, discloses an indictable offence, and is good in law, and charges A. as a principal in the second degree. (b)

Accessories before and after the fact.-An accessory before the fact, is he who, being absent at the time of the felony committed, doth yet procure, counsel, command, or abet another to commit a felony. (c) An accessory after the fact is one who knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon. (d) It is only in felonies that there can be accessories, for in misdemeanors all are principals. (e) By the 31 Vic., c. 72, s. 9, aiders and abettors in misdemeanors are liable to be indicted, tried, and punished as principal offenders. There may be accessories to a new statutory felony, in the same manner as

(a) Reg. v. Hilton, 5 U. C. L. J. 70 Bell 24; 28 L. J. (M. C.) 28.

(b) Reg. v. Connor, 14 U. C. C. P. 529.

(c) Arch. Cr. Pldg. 11.

(d) Ib. 14.

(e) Reg. v. Tisdale, 20 ̊U. C. Q. B. 273, per Robinson, C. J.; Reg. v. Campbell, 18 U. C. Q. B. 417, per Robinson, C. J.; Reg. v. Benjamin, 4 U. C. C. Þ. 189, per Macaulay, C. J.

to felony at common law (a); for, if a statute creates a felony or misdemeanor, it, by implication, forbids counselling, aiding, or abetting the offence; and the common law alone supplies a remedy. But, in addition to this, the Act respecting accessories, (b) expressly extends to felonies, by virtue of any Act to be passed. (c)

There can be no accessories to a felony unless a felony has been committed. (d) Ordinarily, there can be no accessories before the fact in manslaughter, for the offence is sudden and unpremeditated. (e) Where, however, the prisoner procured and gave a woman poison, in order that she might take it, and so procure abortion, and she did take it in his absence and died of its effects, it was held that he might be convicted as an accessory before the fact to the crime of manslaughter. (f) There may, however, be accessories after the fact in manslaughter. (g) The offence of an accessory is distinguishable from that of a principal in the second degree: the latter must be actually or constructively present at the commission of the fact. But it is essential to con. stitute the offence of accessory that the party should be absent at the time the offence is committed. (h) On an indictment charging a man as a principal felon only, he cannot be convicted of the offence of being an accessory after the fact. (i)

The principle of law, both in civil and criminal cases, is that a person is liable for what is done under his pre

(a) Dwarris 518.

(b) 31 Vic., c. 72.

(c) Reg. v. Jesse Smith, L. R. 1 C. C. R. 266, per Bovill, C. J.

(d) Reg. v. Gregory, L. R. 1 C. C. R. 77; 36 L. J. (M. C.) 60.

(e) Russ. Cr. 59.

(f) Reg. v. Gaylor, 1 Dears & B. C. C. 288; see also Reg. v. Smith, 2 Cox 233, per Parke, B.

(g) Russ. Cr. 59, n. ; see Rex v. Greenacre, 8 C. & P. 35.
(h) Rex v. Gordon, 1 Leach, 515, Arch. Cr. Pldg. 11.
(i) Reg. v. Fallon, L. & C. 217; 32 L. J. (M. C.) 66.

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.

(b) Ib.

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

(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.