delivered the opinion of the court.

From the report of the evidence which the trial furnished, it appears that the defendant was present when his wife sold liquor and received the money for it; and it was distinctly left to the jury to determine from the circumstances attending the transaction, whether the sale thus made, was with the privity and assent of the husband. Without this, they were told the husband was not answerable lor the improper conduct of his wife. The verdict of the jury, therefore, on this ground, is conclusive of the fact, that the act'of the wife in this instance, must be considered as the act of the hushand himself.

On the 2nd. ground, the testimony furnished was abundant to shew that the defendant did sell without a license. y'ohn Blakely, a witness sworn on the trial, proved that the defendant, on being advised by him to get a license, after having been in the practice of retailing for five or six years, declared that he would not.

But independent of this evidence, which is of itself sufficient to shew that the defendant sold without a license ; ^ it is the opinion of the court, that the burthen of the proof ; lay on the defendant, and that it was incumbent on him to !, shew that he had been licensed to retail; a fact, which if it ' existed, could easily have been made to appear by the ad-■■.duction of his license.

The motion for a new trial is refused.

I dissent from the opinion that the burthen of proof to shew the defendant had a license lies upon him. The State ought to prove he had no license, which may be done by the commissioners or clerk of the board,