Cole v. Smith

4 Johns. 193 | N.Y. Sup. Ct. | 1809

Per Curiam.

The action of the plaintiff is founded entirely upon the authority of the statute. There was no contract or privity existing between him and the. defendant, from which the law would raise an implied assumpsit in the defendant to pay money to him. The declaration, containing only a single count for money had and received, could not then have disclosed to the defendant the grounds of the action ; and, in legal intendment, the testimony at the trial must have been a complete surprise. An action foundéd upon a statute, must state specially the cause of action arising under the statute. Nothing will prevent the application of this rule but the statute itself giving a particular form of declaration. In the statute respecting gaming, there is no form of declaring given, when a common informer, as the plaintiff is, brings a qui tam action for the money lost and the treble damages. He is to have an action of debt found» ed on the statute, and further than that is not provided form his case. The statute is silent as to the mode of declaring in such action ; and the plaintiff must consequently follow the general rule of stating the special matter upon which his cause of action arises. The testimony did not support a count for money had and received to the plaintiff’s use ; and a judgment of nonsuit must be entered.

The statute of 9 Anne, c. 14. s. 2. contains precisely the same provisions as our act. The latter is, in fart, a transcript of the former ; and when the common informer sues in that case, upon the neglect of the loser to sue within the three months, he states the special matter, and does not declare simply upon the count for motley had and received. This appears from the record in the case of Frederick v. Lookup, (4 Burr. 2018.) which was an action ¿founded upon the same clause of the statute.

Judgment of nonsuit.