Whipley v. Flower

The opinion of the Court was delivered by Mr. Chief Justice Murray.

Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.

An allegation that the plaintiff and the deceased entered into a co-partnership for the purpose of carrying on and conducting, in the city of Sacramento, a saloon known as the Diana Saloon, for the purpose of gaming and selling liquors and cigars, etc., does not raise the presumption that said gaming was necessarily unlawful, or that said saloon was a common gaming-house. It might very well have been one of those saloons licensed by the laws of the State for playing billiards, ten-pins, and other games, not in themselves unlawful, and not prohibited by the statute.

We cannot presume from the word gaming, that the saloon was rented and kept as a common gambling-house, where large sums of money were won and lost at play. If such was the fact, it should have been established on the trial below; but as the defendant neglected to file his answer, and suffered a default and final judgment, the plaintiff has now the advantage at law, and his rights obtained through defendant's laches ought not to be disturbed.

Where there are two presumptions, both equally reasonable, arising upon the face of the record, this Court is bound to adopt that which will maintain the judgment of the Court below.

Judgment affirmed.