Sanders vs. The State of Georgia.

a tippling-house on the Sabbath day. There was no contest as to the character of the house. As to its being open, only one witness was sworn, who testified on that subject as follows:

Question. "Prior to the 16th of November, 1883, upon any Sunday before that time within two years, were you ever in this defendant's place of business, corner of Jefferson and South Broad streets?" Answer. "Yes, sir."

Q. "Where is that entrance-on what street?"

A. Off Jefferson street."

Q. "For what purpose did you go in there?"
A. "To get a glass of beer."

Defendant was found guilty. He moved for a new trial, on the following among other grounds:

(1.) Because the verdict was contrary to law and evidence.

(2.) Because the court refused to charge as follows: “The defendant can only keep open a tippling-house by himself or agent; if not kept open by himself, then he can only be bound by the acts of such persons as are shown. to be his agents; and the burden is on the state to prove the agency."

(3.) Because the court refused to charge as follows: "I charge you that the fact that the defendant's place of business, which is admitted to be a tippling house, was entered by a person on the Lord's day, the defendant not being present, is not evidence of the fact that it was kept open by the defendant or by his authority."

(4.) Because the court charged as follows: "A man who is the proprietor of the establishment is presumed by the law to know what takes place in his own establishment, as to whether it be open or closed, to the extent of throwing upon him the burden of showing that, if the law is violated in his place, it is not his fault."

Sanders vs. The State of Georgia.

(5.) Because the court, after charging, as requested, that, "as a general rule, a principal is not responsible for the criminal act of his agent, unless it is shown that the agent acted with the authority of the principal," added thereto the following words: "It is a correct principle of law, gentlemen, but still what I have said to you in reference to this matter is not in the slightest degree in conflict with this. Where a principal has an agent who has done a criminal act, ordinarily the principal would not be responsible, unless he be directly connected with that act, but where the offense is in keeping a house open, a tipplinghouse open, it makes no difference whether the proprietor be present or not; if his employé keeps it open, the proprietor is the one who is guilty, unless he can show that it was done without his knowledge or consent."

The motion was overruled, and defendant excepted.

GARRARD & MELDRIM, for plaintiff in error.

W. G. CHARLTON, solicitor general, for the state.

HALL, Justice.

Keeping open tippling-houses on the Sabbath day is found in the same section of the Code, §4535, associated with open lewdness and notorious acts of public indecency, tending to debauch the morals of the people. From the company in which it is placed, we feel authorized in concluding that the law-makers regarded it as an offense of a peculiarly obnoxious character-one which every man's observation teaches is not only offensive to common decency, but is also the generator of crimes of a much more flagrant and pernicious character, threatening the wellbeing and safety of society. The purpose of the act was not only to close up such establishments on Sunday, in deference to the finer and better feelings of orderly and welldisposed people, but to remove this incitement to graver and more dangerous violations of the law. Having in

Sanders vs. The State of Georgia.

view the advancement of the remedy and the suppression of the mischief, courts are not very astute in shielding violators of this provision from punishment by resorting to the niceties of verbal criticism, such as would be intelligible only to grammarians and fastidious scholars, but would utterly fail to impress less cultivated minds and tastes, in order to provide for them a way to escape. They apply to such cases the deductions which common sense and ordinary observation would draw from the facts in proof, as a surer guide to a right result than would be the ingenious speculations of the schoolmen. Such a mode of dealing with the statute would not amount to a strict construction simply, which would be proper, but to such a one as would be absolutely destructive of its object and aim. Whenever it is shown that the house complained of is a tippling-house, that defendant is its owner, and that it has been kept open on the Sabbath day or Sabbath night, the charge is completely made out, and without more the jury ought to convict. If the house was opened and kept open against the owner's consent, express or implied, either by his clerk or some other person, or if it is opened for any cause or purpose which the law would justify or excuse, and any of these facts be shown, then he would be entitled to an acquittal; but it would be going quite too farto assume that such a defence was established or to infer its existence from the bare fact that the proprietor was not visible to those resorting to the house on Sunday for the purpose of tippling. This invisibility is doubtless a part of a cunningly contrived scheme for keeping the house open and carrying on the forbidden traffic on this hallowed day, in defiance of the regulation and without incurring the penalty of its violation. There was no error either in the charge given, or in that which the defendant requested, and which was refused. Judgment affirmed.

Morris vs. Marqueze & Varney; Morris vs. Sahlein & Company.

MORRIS vs. MARQUEZE & VARNEY; MORRIS vs. SAHLEIN &
COMPANY.

1. H. & S. being partners, S. sold and assigned his interest to M.
The contract recited that M. agreed to assume with H. the debts
of the firm of H. & S., and to protect S. from all responsibility
therefor. This agreement was signed by H., who was no party to
it, and by M., but not by S. H. gave a note signed in the firm
name of H. & M. for a debt which had been due by H. & S.:
Held, that in a suit thereon against H. & M., the agreement was
admissible in evidence as a part of the transaction between the
parties.

(a.) In order to render an incoming partner liable for the debts due
on account of the business to which he succeeded with his co-
partner, some agreement must be shown upon the part of the in-
coming partner, founded upon a sufficient consideration, to assume
such liabilities and pay such debts before he can be bound through
the new firm to pay the old indebtedness.

(b.) The jury might have inferred that the plaintiffs' agent had notice of all that occurred in the formation of the new partnership. 2. Evidence tending to show that the new partner was grossly defrauded in assuming the liabilities of the old firm threw light on the conduct of the parties, and was admissible.

3. The jury should not have been instructed that the effect of the agreement between H. & M. was an assumption of the debts of H. & S. by H. & M. They should have been instructed to consider it as evidence to show an agreement by M. to assume the debts in connection with H. and to indemnify S. against their payment; but they should also have been instructed that it would not have that effect if the attendant circumstances were such as to show that it was founded upon none but a fraudulent consideration; that if M. derived no benefit from it, and the facts were such as to convey notice of the fraud to plaintiffs or their agent, then M. would not be bound to the plaintiffs for the debt due them by H. & S. 4. Nor was it right to charge unqualifiedly that the giving of the new note by H. in the name of H. & M. for the debt of H. & S., under this agreement, was a transaction within the scope of the partnership business of H. & M. Such a charge withheld from the jury the consideration of the defence, and was fragmentary and one-sided.

(a.) It was error to charge that, if the plaintiffs abandoned the legal steps they intended to take against H. & S. in consequence of the delivery of their goods to H. & M. and the giving of the note in the name of that firm by H., in order to prevent this resort to law, that would be within the scope of the partnership business,

Morris vs. Marqueze & Varney; Morris vs. Sahlein & Company.

and would bind M. This charge should have been qualified by a reference to the facts on which the defence rested.

5. The case of Morris vs. Sahlein & Company falls within the principles set forth in Morris vs. Marqueze & Varney, above determined, and is controlled by it in all its essential features

January 21, 1885

Partnership Evidence. Evidence. Fraud. Statute of Frauds. Notice. Charge of Court. Before J. T. PENDLETON, Esq., Judge pro hac vice Fulton Superior Court. March Term,

1884.

Reported in the decision.

T. P. WESTMORELAND, for plaintiff in error.

H. H. COLQUITT; JACKSON & KING, for defendants.

HALL, Justice.

his firm

Hook & Smith, a firm doing business in Atlanta, became indebted to plaintiffs, who were merchants in Boston, for goods which the plaintiffs had furnished them previous to the fall of 1881. In the latter part of October of that year, their agent became uneasy about their claim, and called several times at the store of Hook & Smith to see after it, and also consulted an attorney in relation to its collection. Hook assured this agent, Grasty, that it was all right; that was worth $10,000.00 or $12,000.00 above its liabilities, and he was going to get in a rich partner; but this did not satisfy the agent, who saw Hook again between the 1st and 5th of November, and urged him to pay the claim. Four-fifths of he stock of goods then in the store had been purchased from plaintiffs, who had written to their agent, if he thought the defendants unsafe, to stop the goods in transitu and this agent had determined to take steps in the matter unless Hook satisfied him. On this visit, he exhibited to the agent an agreement purporting to have teen executed between Smith and the defendant, Morris,