Smith v. Ray 89 Ga. 838

Smith v. Ray.

One who receives the money of another from a third person by winning it at a game of chance played with such third person, is liable to the owner in an action for money had and received, and the right of action does not rest upon the statute, but upon the common law. Mason v. White, 17 Mass. 559; Clarke v. Shee, Cowp. *839197. Hence, a declaration which alleges, that the defendant is indebted to the plaintiff in a specified sum of money, for that on a given day the defendant did win the same from a named person at a game of chance by inducing the latter to wager the same at a game of chance known as “matching,” title to said money being then and there in the plaintiff, and the defendant on demand having refused to turn over or pay the same to the plaintiff, together with an amendment adding that he, the plaintiff, lost the money by the said third person, and that the money was actually had and received by the defendant, who withholds it from the plaintiff unlawfully, sets forth a cause of action in favor of the plaintiff upon his own legal'title to the money, and it was error to sustain a demurrer, or motion to dismiss, upon the grounds, that the suit was not instituted in the name of the person who wagered the money, that the money was not alleged to have been actually paid to the defendant, and that the declarations set forth no cause of action.

2. There was no error in rejecting an amendment to the declaration by which the plaintiff sought to introduce the name of the person who wagered the money as suing for his, the plaintiff’s use, this amendment not only being unnecessary, but contemplating a shifting of the action from a legal right in favor of the plaintiff himself to a legal right in favor of a third person, the first of said rights depending on the common law and the second on a statute.

October 1, 1892.

Gaming. Action. Party. Amendment. Before Judge Ross. City court of Macon. September term, 1891.

The action was by B. B. Smith, alleging: B. H. Ray is indebted to him $840, which sum Ray won from L. ~W. Smith at a game of chance by inducing him to wager the same upon a game of “ matching,” which is a game upon which money is risked, title to said $840 being in plaintiff and so remaining; and Ray on demand refused to turn over the same, etc. By amendment the plaintiff alleged that he lost the money by L. W. Smith, title to it being in plaintiff; that it was lost within six months before this action was filed; that defendant holds it by fraud or other illegal means; and that it was actually had and received by defendant. The defendant *840demurred generally, and because the action was not instituted in the name of the loser of the money. The plaintiff' offered to amend by adding the name of L. W. Smith as suing for the use of 13. B. Smith. .This amendment was disallowed, and the demurrer was sustained; to which rulings the plaintiff excepted.