Majority
p. 5Collins against Ragrew.
Headnote
in an action, under the 2d section of the gaming^r(s¡s“! 4®¿3_* ^ ^^nlt^he "ov^backmoney lost at play and paid, the plaintiff may declare gene** rally in debt, [“¡¿"received^ hu^case**^ ^g^the^ta;t the case of an action brought by a commonIN error, on a bill of exceptions, to the court of common 1 - t 5 pleas of the county of Ontario.
The plaintiff in error, brought an action of debt in the court below, against the defendant in error, and declared generally, for money borrowed by the defendant of the plaintiff, and for money had and received by the defendant to the plaintiff’s use. ' The defendant pleaded nil debet; A 1 and. at the trial, m May term, 1817, m the court below, ' y the plaintiff’s counsel stated that the action was founded on the second section of the act, entitled, “ an act to prevent excessive and deceitful gaming,” passed the 21st of March, 1801, and offered to prove, that the plaintiff, at one time or sitting, by playing at cards, lost to the defendant the sum of 170 dollars, and paid the same to him, and that the plaintiff, 1 r _ . . within three months thereafter, sued out a writ of copias ad respondendum, and commenced this action, to recover hack the money which he had lost. This evidence was objected to, on the part of the defendant, on the ground that it was inadmissible, under the plaintiff’s declaration, which contained no reference to the statute, and the court being of this opinion, nonsuited the plaintiff.
The bill of exceptions was submitted without argument.
This case comes before the court, on a writ of error to the common pleas ®&>Ontario county, founded on a bill of exceptions duly taken. It presents the question, whether, in an action, brought by the losing party, to recover hack money lost at gaming, he is bound to declare specially, or may declare generally, under the statute, for money had and received; and the statute would seem too plain and explicit to admit of any doubt, that he may declare generally. This is expressly authorised by the act, (1 N. R. L. 153.) The case of Cole v. Smith, ( 4 Johns. Rep. 193 .) does not apply. There the action was by a common informer, the
p. 6
losing party not having brought his suit within the time fay the act. In such case, the act does not give any form of declaring, and it was held, that he must state the special matter upon which his cause of action was founded. But it is almost necessarily to he inferred, from what is said by the court, that a general count would be good, when the suit was by the losing party. The judgment must he reversed, and a venire de nova issued, returnable in the common pleas of Ontario county.
Judgment reversed.