¶2Upon the' first ground of appéaí, we concur in opinion with the judge below. To his observations, it is only necessary to add an authority directly in support of them. In Trials per Pais, 334,-it is laid down as a settled rule, that “ the jury may give a verdict without testimony, or against testimony, when they, themselves,- have conusance of the fact.”
¶3On the second ground, we think a new trial must be granted.- There is only a single act of retailing proved : that was by the defendant’s clerk,1 in his absence, and after he, the defendant, had refused to sell to the witness. From a single' isolated act of retailing by the clerk,- no certain' inference, that it was by the authority of the defendant, could be drawn but whatever probability that it might have been so, is .negatived by his previous refusal to sell. To authorize the jury to convict, it ought to be shewn that it was the usual course of business, at thé defendant’s store,* to retail. When this was done, the act of the clerk would be the act of his principal.
¶4The motion for a new trial is granted.