Cole v. Groves

We have no doubt that § 1 of the Gen. Sts. c. 85, (Pub. Sts. c. 99, § 1,) under which this action is brought, so far as it authorizes a third person to recover three times the sum of money or value of goods lost by gaming, is a penal statute; or that the Gen. Sts. c. 155, § 20, (Pub. Sts. c. 197, § 4,) apply to this action. Read v. Stewart, 129 Mass. 407. Cumberland & Oxford Canal v. Hitchings, 57 Maine, 146. A right of action is given to the loser to recover the money or value of the goods lost, but his right of action is limited to three months, and is remedial. After the expiration of that time, all right of action in the loser is gone-, and a right of action accrues to any third person who may choose to sue for the penalty; but this action must be brought within one year next after the offence is committed, which, in this case, was the winning and receiv ing the money. Plummer v. Gray, 8 Gray, 243. Barnicoat v. Folling, 3 Gray, 134. We are of opinion that the statute of limitations was properly pleaded to all the causes of action, if there was more than one set out in the plaintiff’s declaration.

We do not understand from the bill of exceptions that there was any contest that the money was lost on August 6 and 7, 1880, or that there was any evidence which could have warranted the jury in finding that the loss occurred at any other time; and, as the action was not brought until September 19, 1881, we think the jury should have been instructed that the action could not be maintained. Exceptions sustained.