99 F. 1 | U.S. Circuit Court for the Northern District of Illnois | 1900
This cause comes on for hearing upon a motion by the defendant, before pleading, to dismiss the suit for want of, jurisdiction here to entertain it. The better practice is to present the objection by a plea to the jurisdiction; but since the federal court will at any stage of the case, when want of jurisdiction appears, decline to further proceed, irrespective of the manner in which the want of jurisdiction is disclosed, the question may he considered under the present motion.
This is a special action on the case brought by the plaintiff, who alleges herself to he the wife of one William gtichtenoth. The amended declaration, in substance, after asserting the necessary diverse citizenship of the parties, alleges that prior to March 15,1897, her husband took and misappropriated her money, without her knowledge or consent, to the amount of $20,660.63, and thereafter; and prior to that date, by “playing, betting, wagering, and gambling upon certain lots, chances, casualties, and unknown and contingent events, such as the rising and falling of market prices or alleged market prices, and speculating and dealing in futures and options in wheat, pork, shares of stock in certain corporations, and other property
The Criminal Code of the state of Illinois provides as follows:
“Whoever contracts to have or give to himself or another the option to sell . or buy, at a future time, any grain, or other commodity, stock of any railroad or other company, or gold, or forestalls the market by spreading false rumors to influence the price of commodities therein, or corners the market, or at-_ tempts to do so, in relation to any of such commodities, shall be fined not less ’ than $10 nor more than $1,000, or confined in the county jail not exceeding one year, or both; and all contracts made in violation of this section shall be considered gambling contracts, and shall be void.” 1 Starr & O. Ann. St. 1885, p. 791, c. 38, § 130. “Any person who shall, at any time or sitting, by playing at cards, dice or any other game or games, or by betting on the side or hands of such as do game, or by any wager or bet upon any race, fight, pastime, sport, lot, chance, casualty, election or unknown or contingent event whatever,' lose to any person, so playing or betting, any sum of "money, or other valuable thing, amounting in the whole to the sum of $10, and shall pay or deliver the same or any part thereof, the person so losing and paying or delivering the same, shall be at liberty to sue for and recover tiie money, goods or other valuable thing, so lost and paid or delivered, or any part thereof, or the full value of the same, by action of debt, replevin, assumpsit or trover, or proceeding in chancery, from the winner thereof, with costs, in any court of competent jurisdiction. In any such action at law it shall be sufficient for the plaintiff to declare generally as in actions of debt or assumpsit for money had and received by the defendant to the plaintiff’s use, or as in actions of replevin or trover upon a supposed finding and the detaining or converting the property of the plaintiff to the use of the defendant, whereby an action hath- accrued to the plaintiff according to the form of this act, without setting forth the special matter. In case the person who shall lose such money or other thing, as aforesaid, shall not within six months really and bona fide, and without covin or collusion, sue, and with effect prosecute, for such money or other thing, by him lost and paid or delivered, as aforesaid, it shall be lawful for any person to sue for, and recover treble the value of the money, goods, chattels and other things, with costs of suit, by special action on the case, against such winner aforesaid; one half to the use of the county, and the other to the person suing.” Id. p. 792, c. 38, § 132.
But it is urged that as the plaintiff was the wife of ihe losen*, and he had surreptitiously taken and lost her money in the speculative and forbidden transactions, therefore she has an interest which renders this statute, as to her, not. penal, and brings the case within the definition stated by Mr. Justice Gray in Huntington v. Attrill, supra. It is there said:
“Tlie question whether a statute of one state, which in some aspects may j>e called penal, is a penal law in the International sense, so that it cannot be enforced in the courts of another state, depends upon the question whether its purpose is to punish an offense against the public justice of the state, or to afford a private remedy to a person injured by the wrongful act.”
Whether a statute he penal is not dependent upon the circumstances which surround the person who prosecutes under it. It depends, as stated by Mr. Justice Gray, upon the question whether the purpose of the statute is to punish an offender, or to afford a private remedy to the person injured. This action is brought under the stat