
    The City Council vs. John Van Roven & E. Van Roven, his Wife, a sole dealer.
    The evidence, to convict a person under the loth clause of an Ordinance of the City of Charleston, of 1815, prohibiting retailers of liquors from selling to persons of color, or admitting’ them into their premises, after certain hours, is sufficient if it be proved that siicfi1 persons were seen in such shop, after such hour, drinking spirits and water; though no money was seen paid.
    The court held that a feme covert, sole dealer, was liable to the penalty under such ordinance, though the liquor was handed to the negTo by' her husband, she being present, and he acting as her clerk.
    The words “ admit into his or her premises any negro or person of color, or many manner sell or retail to the same,” do not mean “admit into his, &c.” and “ in any manner, &c.”'
    Charleston district.
    The following is the report of.the Recorder :
    THIS was a prosecution against E. Van Raven, a sole-dealer, for á breach of the 13th clause' of an ordinance of the city, passed on the 17th July, 1815. Tried before-the recorder, in April term, 1823, who made the following report: This clause enacts that no person to whom a license shall be granted, shall after the hour of 8 o’clock, P. M. from the 20th September, to the 20th March, admit into his or her premises any negro or person of color, or in any manner sell or retail to the same or any of them,, any liquors whatever, under the penalty of $ 50.
    It was proved that the defendant, E. Van Roven, was a sole dealer ; that she had taken out a license to retail Spirituous liquors, and that she was the wife of John Van Roven.
    
    Mr. Wish deposed that E. Vm Roven kept a retail liquor shop in the city; that on the 8th of February, 1823, he and Mr.' Moses saw several negroes in her shop after 8 o’clock, P. M. That some of the negroes were drinking ápirits and water, and that at this time, to the best of his recollection, John Van Roven was present. Mr. Moses-Said, that on the night of the 8th of February last, after 8 o’clock at night, he went to the shop of Mrs. Van Roven, in which he saw several negroes ; that John Van Roven delivered liquor to some of the negroes, which they drank; that at this timé, Mrs. Van Roven was in the shop, but not hand any liquor to the negroes; that he saw no money paid, neither did he see any money upon the counter.
    I Stated to the jury that I thought, under the ordinance, that the penalty could not be recovered, unless it were proved that liquor had been sold to a negro after S o’clock at night; that according to the literal meaning of the words, the penalty would attach for the mere admission of negroes into the premises after 8 o’clock at night ; that negroes, after this hour might by their owners, be sent to the house of one keeping a retail liquor shop, with a letter or a message, or they might go there of their own accord to visit other negroes ; that where negroes, under such «ircumstanoes, were upon the premises, it could not have been contemplated by the law that the penalty should be incurred; that the offence intended to be guarded against, was permitting negroes to assemble and selling them liquor after a certain hour, for which purpose they would resort to the shop ; that according to this view, it seemed to me that the word “ or, ” in the clause ought to be read “ and ;” when the meaning would be, that one having a license, should not, after 8 o’clock at night, admit into his or her premises any negro or person of color, and in any manner sell or retail to the same, any liquors whatever, under the penalty of $ 50; that if this construction of the clause were correct, it was questionable whether the offence had been established ; that if a sale was necessary to complete it, although abstractedly considered, there might be little doubt but that the negroes paid for the liquor they drank, j'et that this fact ought to be proved, or some circumstances be testified to, from whence the inference would reasonably follow that what had been drank? had been sold and not given ; and no such fact or circumstance had been mentioned ;j' that even should it be presumed that there had been a sale, yet the individual making it was not the defendant, but her husband ; and though the wife in many instances, was presumed to act under thp control of her husband, yet it was never presumed that the husband was under the control of the wife; that a sole dealer might so far constitute her husband her agent, as to be bound by his acts, but that she could not be bound by them unless the agency of the husband was shewn, either by some express authority or by some implication from \which such authority was to be deduced. >
    The jury found a verdict for the citjr.
    Notice was served upon me that a new trial would bo moved for on the following grounds :
    1st. That there was no evidence that the liquor was sold or bartered.
    
      l'' 2nd. That if a sale could be pi’esumed, it was the act of t the husband and not of the wife, for which she could not; j^bo responsible.
    3rd. Bescause the verdict was contrary to law, to the charge of the recorder, and not warranted by the evidence,
   Mr. Justice Noli

delivered the opinion of the court:

I do not think that the ordinance under which the defendant has been prosecuted, is so well penned as it might have been. But I am not prepared to concur with the Recorder in the construction which he has -given to it. I do not think that we are even at liberty to convert or ” into and” unless we can see clearly that it better comports with the spirit and policy of the law ; and of that, I am by.no means satisfied in this instance. The object of the City Council was to prevent that demoralizing practice of selling spirituous liquors to negroes in the night; and for that purpose, they-have prohibited all retailers from admitting them into their premises, or selling to them any liquor whatever, after a certain hour. The penalty is incurred by selling liquor to a negro after 8 o’clock, whether he enters the shop or not; and from the difficulty of detection, it became necessary to prohibit them from even admitting them into their premises. But admitting the construction given to the ordinance by the Recorder, to be correct, I think the evidence was sufficient to authorize the conviction. Two witnesses saw several negroes in the shop, drinking spirits and water. They saw the husband of the defendant, handing them liquor in her presence. Now, although they did not see any money paid, yet I think, these facts furnished sufficient evideuce of a sale, to throw the burthen of proof on the other side. This was confessedly a retail liquor store ; the retailing was clearly proved, and I think, it might he fairly presumed that the liquor was sold. It is, however, contended that if there was a sale, it was by the husband and not by the wife ; and that although a wife may be presumed to act under the influence of a husband, a husband is never to be presumed to act under the influence of the wife. It is true, the husband and wife in contemplation of law, are considered in many respects as one person, and the husband being primus inter pares, whatever the wife does in his presence, is presumed to be done under his control or coercion. The same principle of law vests the personal estate of the wife in the husband, and gives him absolute dominion over it. But in the progress of civilization and the extension of commerce, an artificial state ofsociety has grown up, incompatible with that state of simplicity from which many rules of the Common Law have been derived. A feme covert sole trader, is a new species of body corporate, not known in former times. The Common Law did not contemplate a case where a wife might hold property separate and apart from her husband, might deal, trade and traffic, enter into contracts, sue and he sued, in the same manner as if she were sole. Such a change in the relative rights and powers of husband and wife, must give a different operation to the rules of law by which they are to be governed. While the right and disposition of the property remains in the husband, any intermeddling of the wife is presumed to be as his agent, and under his influence. But when the dominion is transferred to her, she must have it with all the rights and appui’tenances thereunto belonging.” All the property in this store belonged to the wife. The husband could not sell a gill of whiskey but by her permission. Whatever he did then in her presence, must be considered as her act. Any other view of the subject, would render the orVlinance in such a case, almost nugatory. The wife could not be convicted when selling in the presence of the husband , because she would be presumed to act under his coercion. The husband could not be convicted, because the sceptre having departed from his hands, he is not embraced in the law. I am satisfied with the verdict, and the motion, therefore, must be refused.

Dnnkin 8r Campbell, for the motion.

Toomer, contra.

Justices Richardson, Huger and Johnson, concurred.  