1. Upon the authority of Crane v. Brannan (3 Cal. Rep. 195), and other more recent decision of this Court, this Court will presume that the Judge of the Court below informed himself as to the matter of the complaint in a proper and regular manner, and that every presumption is in favor of the judgment, and its being regularly obtained.
2 We contend that even if the word gaming is to be used in the sense adopted by the appellant's counsel that a demurrer should have been interposed, and it is too late now to raise the objection. The complaint certainly contains a cause of action, but if it is one which Courts will not enforce, the defendant should avail himself of that privilege which the law affords him of defending himself against what he may consider an unlawful claim. The only ground, therefore, which the appellant can stand on in this Court, is that the complaint does not state facts sufficient to constitute a cause of action. But as to the pleading, see 2 Saunders Pl. and Ev. p. 199; Potts v. Sparrow, 1 Bing. N.C. 596; 1 Sco. 578; 1 B. A. 463.
We, however, contend that there are two kinds of gaming--lawful and unlawful; and that this Court will presume in favor of this gaming being lawful. The business of a saloon, for the purposes of gaming, selling liquors, cigars, etc., negatives the idea that anything was intended but lawful gaming, such as is usually to be found in a saloon of the nature indicated, to wit, the game of billiards, ten-pins, and a variety of other harmless and lawful games.
On principle and authority, then, the judgment should not be disturbed.
JUDGES: The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.
OPINION
MURRAY, Judge
An allegation that the plaintiff and the deceased entered into a copartnership 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.