Whipley v. Flower

Citations

• 6 Cal. 630

Syllabus

<p>An allegation in a complaint that the parties kept a saloon for the purpose of gaming and selling liquors and cigars, does not raise the presumption that the gaming was necessarily unlawful, or that the saloon was a common gaming-house, as the word might apply to lawful games, such as billiards, etc.</p> <p>And where the defendant, in an action on such a complaint to recover an amount due plaintiff as partner in the saloon, made default, he cannot raise the objection that the complaint sets out an unlawful occupation as his cause of action, as, if the alleged gaming was in fact unlawful, he should have established it in his defence.</p> <p>Where there are two presumptions 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.</p>