322 Mass. 139 | Mass. | 1947
The plaintiff seeks by this bill in equity to establish a debt under the so called gaming statute (G. L. [Ter. Ed.] c. 137, § 1) and to reach the interest of the defendant Samuel Averbuck in a partnership
The grounds assigned in the demurrer are (1) failure to state a case entitling the plaintiff to equitable relief, (2) failure to set forth the facts with sufficient particularity, and (3) noncompliance with the requirements of G. L. (Ter. Ed.) c. 137, § 1. The first and third grounds may be considered together, as they both seek to raise the question whether a cause of action grounded on G. L. (Ter. Ed.) c. .137, § 1, can be brought on the equity side of the court. The material portions of § 1 are as follows: “Whoever, by playing at cards, dice or other game, or by betting on the sides or hands of those gaming, loses to a person so playing or betting money or goods, and pays or delivers the same or any part thereof to the winner . . . may recover such
The defendant argues that, since the Legislature has provided a remedy by an action “in contract,” the plaintiff is entitled to proceed only on the law side of the court. We cannot agree. This argument overlooks the nature of the plaintiff’s pleading which is framed as a creditor’s bill brought under G. L. (Ter. Ed.) c. 214, § 3 (7), to reach and apply the defendant’s interest in a partnership. The purpose of that statute was to give to those who had rights enforceable at law the right to enforce them on the equity side of the court by a proceeding which has been said to be “in the nature of an equitable trustee process.” Phoenix Ins. Co. v. Abbott, 127 Mass. 558, 560. Stockbridge v. Mixer, 215 Mass. 415, 417, and cases cited. McCarthy v. Rogers, 295 Mass. 245, 248. In Stockbridge v. Mixer it was said at page 418, “This clause of the statute [the predecessor of what is now G. L. (Ter. Ed.) c. 214, § 3 (7)3 -combines in a single proceeding two different matters or steps in procedure, one at law and the other in equity. The first is the establishment of an indebtedness on the part of the principal defendant to the plaintiff. The second is the process for collecting the debt, when established, out of property rights which cannot be reached on an execution.” In short a bill to reach and apply is essentially a proceeding at law supplemented by an equitable attachment. The proceeding here was none the less “in contract” because the plaintiff sought an attachment in equity. We find nothing in either the language or the purpose of the gaming statute that manifests an intention to withhold from one seeking to recover money under it the remedy provided in G. L. (Ter. Ed.) c. 214, § 3 (7). See Rice v. Winslow, 182 Mass. 273, 275-276. . Nor is the statute last mentioned to be construed as furnishing a remedy which may be invoked only in aid of common law rights as distinguished from those created by statute.
Properly no contention is made that the alleged interest
What constitutes a debt within the meaning of this statute has been discussed in several decisions. See Woodbury v. Sparrell Print, 187 Mass. 426, 428-429; H. J. Kilbourne Co. v. Standard Stamp Affixer Co. 216 Mass. 118; New England Oil Refining Co. v. Canada Mexico Oil Co. Ltd. 274 Mass. 191, 202; Garsson v. American Diesel Engine Corp. 310 Mass. 618, 620-623. An illuminating discussion by Rugg, C.J., will be found in the Kilbourne case cited above. In the light of these decisions, we are of opinion that the obligation which the plaintiff is seeking to enforce here is a “debt” within the intendment of the statute and that the plaintiff was entitled to bring a bill to reach and apply under G. L. (Ter. Ed.) c. 214, § 3 (7), to enforce it.
The defence of unclean hands based on the illegal conduct of the plaintiff cannot prevail. Obviously this defence is not open to a defendant in a proceeding under G. L. (Ter. Ed.) c. 137, § 1, the object of which is to discourage gambling by giving the loser the right to recover back his losses despite his violation of law. See Rice v. Winslow, 182 Mass. 273, 275.
We think, however, that the demurrer was rightly sustained on the ground that the allegations of the bill were too indefinite. It is an elementary rule of equity pleading that the bill must contain a clear and precise statement of all the material facts upon which the plaintiff’s right to relief depends in order that the defendant may be informed of the specific nature of the claim against him. Carson v. Gikas, 321 Mass. 468, 469-470, and cases cited. The bill here plainly violates this rule. The only portion of the bill that relates to the alleged debt is paragraph 1, which reads as follows: “Between the first week of April, 1946, and September 23, 1946, the defendant, Samuel Averbuck,
It remains to consider the plaintiff’s appeal from the action of the judge denying the plaintiff’s motion to amend from equity into law. Although this ruling was not embodied in a decree, it was in substance an interlocutory decree and is subject to revision on appeal. Gulesian v. Newton Trust Co. 302 Mass. 369, 370. Regan v. Tierney, 306 Mass. 168, 169. See Nelson Theatre Co. v. Nelson, 216 Mass. 30, 33; Churchill v. Churchill, 239 Mass. 443, 445; Check v. Kaplan, 280 Mass. 170, 175. It is expressly provided in G. L. (Ter. Ed.) c. 231, § 55, as amended by St. 1935, c. 318, § 6, that “The . . . superior . . . court may, before final judgment, and upon terms, allow an amendment changing an action at law into a suit in equity, or a suit in equity into an action at law, if it is necessary to enable the plaintiff to sustain the action or suit for the cause for which it was intended to be brought.” See Kerr v. Whitney, 224 Mass. 120. The granting of such an amendment was discretionary. George v. Reed, 101 Mass. 378. Had the judge denied it in the exercise of his discretion no question of law would have been presented. But he denied it as matter of law. This was in effect a ruling that he had no power to allow the motion. Peterson v. Cadogan, 313 Mass. 133, 134.
In our opinion the judge had the power to allow the amendment and. his ruling to the contrary was erroneous. The amendment
The interlocutory decree sustaining the demurrer is affirmed. The interlocutory decree denying the motion to amend from equity into law is reversed. The final decree dismissing the bill is reversed, so that the court may consider the plaintiff’s motion to amend from equity into law. The allowance of such a motion, of course, rests in the discretion of the judge in the court below and we express no opinion as to whether the motion ought to be allowed.
So ordered:
The partnership, according to the bill, comprised the defendant Samuel Averbuck and his brother Allen Averbuck, also a defendant.
The following notation was made on the motion by the judge: “Jan. 22, 1947, Filed by leave of court as of' January 18, 1947, when the within motion was presented to the clerk for filing.”
The declaration contained in the motion clearly shows that it related to the same transactions for which recovery was sought in the bill, and the amounts and dates of the losses were set forth in a bill of particulars.