THE STATE VS. BERHMAN AND PETERS, 3 Hill 90

Curia, per Richardson, J. The essential fact is, that Peters, the clerk, received the rice of the negro, in the absence of Berhman, who was a shopkeeper; and the question submitted is, does such a receiving by the clerk, implicate the owner of the shop, and render him guilty, as well as bis. clerk, by virtue of the Act of 1834 1 After a general prohibition of purchasing lice, &c, from a slave, the Act by the 2d

section enacts, “ that if any shop-keeper shall receive rice, &c. from a slave, h,e shall hg presumed to have purchased the same.” And the 3d

section enacts, that “ In all cases of buying and selling any rice,’! &c. &c. “contemplated and included in the preceding sections,” &c. “the act of the plerk,<” &.c. shall be .considered the act of the shop-keeper, &c. and done by his authority. The argument is, that the sirqple receiving of the rice by the clerk does not prove a buying of rice by the master of the shop, although it may prove a buying by the clerk. But the 2d

section makes the receiving by the master, prima facie proof of buying. And the 3d

section makes'the act of the clerk the act of the master, in all cases of buying rice, &c. contemplated by the preceding flections. If, then, the clerk received the rice, prima facie, the rice was bought; and as his act is considered the act of the shop-keeper; he, the shop-keeper, received the rice, and prima facie bought it. Bpth sections are very explicit. To receive is to buy, unless the contrary be proven;’ and the act of the clerk is the act of the master of the shop, unless the contrary be proven.

If there be any doubt, it is whether the clerk should have been convicted under the Act of 1834; inasmuch' as' his act is made the act of the master, who thus father’s hi's clerk’s act, by the letter of the law; and because he may not have been either a shop-keeper or trader; which the Act of 1834 requires. But I do not perceive why both cleric and master might not have been convicted under the Act of 1817, which is not confined to shop-keepers, but includes them ; and receiving is evidence of buying, under either Act; and both Acts equally prohibit buying from a slave, by or through a clerk, or other perso'n.

The motion is dismissed. Wilson,- for the motion. v Sniitli, Attorney General, con' Harper, Earle, O’NealL, Evans, Johnston, and DeSaussure, CC; ánd JJ. concurred.