Collins v. Ragrew

15 Johns. 5 | N.Y. Sup. Ct. | 1818

Per Curiam.

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 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.