Morgan v. Lewis ( 1845 )

Judge Marshall

delivered this opinion of the Court at the fall term, 1845, but being overlooked, was not published in the 6th volume, as it should have been.

We have no doubt, that any one of several losers at an unlawful game or sport, may, after the expiration of six months, without a joint suit, maintain a separate suit for the recovery of the money or property so lost and paid, as a stranger to the bet might do under the first section of the act of 1833. But the statute, in case property is lost, authorizes the recovery of the property, and not of its value, or damages, unless where the property itself cannot be had. And there being no averment of such a disposition of the property by the winners, that it cannot be had on a judgment against them, case seems to be an inappropriate remedy for the recovery of the property.

The 20th section of the statute, we understand as allowing debt, detinue or case, as the plaintiff may choose and his case require; he may bring either of the actions which is appropriate to the case; but it does not authorize him to bring one, which' according to the established form of proceeding and judgment therein, would be wholly inappropriate, and inadequate to the relief given by the statute.

—Though debt, being given by a former statute might be maintained for money or property, or detinue, or ease, wheie the facts justified---the mere failure to deliver property ■will not justify bringing case.

Qoodloe for appellant.

Debt being given by the former statute in all cases, and not taken away by this in any. Debt might be maintained for money and property, or detinue for property, or case when by reason of any act beyond the mere winning and recovering of the property, damages may be recoverable. But the mere failure to deliver it to a person who afterwards sues as plaintiff in a popular action, does not convert the demand for the property into one for damages.

We- are of opinion, therefore, that the declaration in this case was properly adjudged bad upon the demurrer and the judgment is affirmed.