218 S.W.2d 395 | Ky. Ct. App. | 1949
Affirming.
Appellees filed a special demurrer to appellant's petition, upon the ground that the petition as amended shows on its face that appellant did not have legal capacity to sue or to maintain the action. The special demurrer was sustained and the appellant declined to plead further. This is an appeal from the judgment of the lower court dismissing the petition.
This is an equitable action, instituted by the appellant as an informer under KRS
Appellant's action is grounded upon KRS
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The lower court did not deliver an opinion, but from his order it appears that the parties were heard *551 orally and upon written briefs. The appellees maintain that:
"(1) The right of action to recover from the winner money or property lost on an election is not in the loser, but is in the Commonwealth alone.
"(2) Sections
In Kentucky, the subject of betting upon an election, the penalty therefor, and the recovery of the amount bet and lost is covered by KRS
"(1) Any person who wagers money or anything of value upon any election shall be fined one hundred dollars. The fine may be recovered in any county where the person violating this subsection may be found, or where the wager was made.
"(2) In addition to the fine, if the person winning receives the money or other thing so wagered, its value, or anything for it, the sum of money or the value of anything else so received shall be forfeited to the state, and may be recovered by any appropriate action in the name of the state before the circuit court or the presiding judge of the county court, wherever the person violating subsection (1) of this section may be found."
In Hickman v. Littlepage, 1834,
"A bet on an election can not, with strict propriety of language, be denominated, 'a bet on any game, sport or pastime whatever.' And we are not inclined, in this respect at least, to give an enlarged or latitudinous import to the words 'game, sport, or pastime,' in the third section of the act of 1833; especially, as, by so doing, we should make it conflict with a radical provision of the act of 1828, against betting on elections, and which we do not believe that the legislature intended to abolish, or to clog.
"As then, this suit must be brought according to the act of 1828, and as, according to that act, Littlepage *552 could sue qui tam only, we are of the opinion, that his suit, as brought, in his own name and for his own benefit, can not be maintained and that consequently the instruction given by the circuit court to the jury was erroneous."
In Love v. Harris, 1857,
"If it be conceded that the plantiff was entitled, under the law as it stood prior to the passage of this act, to recover the value of the thing lost by him, as alleged, it is very clear that such right is taken away by the latter act and vested in the Commonwealth for the use of the school fund, etc., and that the former law is to that extent repealed. It would certainly be an anomalous construction of the two statutes, to say the least, that a right of action is given to two different parties, at the same time, for the same thing, or for its value. Such could not have been the intention of the legislature.
"In view of the various provisions of the statutes referred to, we are satisfied that the right to sue for the value of the horse alleged to have been lost and won in this case was in the Commonwealth alone, and that the demurrer to the petition was properly sustained."
At common law, money lost at gaming could not be recovered. Downs v. Quarles, 1821,
The judgment of the circuit court is affirmed.