French v. Marshall

• Decision Date: 29 February 1884
• Citation: 136 Mass. 564
• Parties: Nathan French v. Otis Marshall
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 564

Nathan French v. Otis Marshall

Supreme Court of Massachusetts

February 29, 1884

Middlesex. Tort, under the Gen. Sts. c. 85, § 1, to recover treble the amount of money alleged to have been lost by playing at cards, and paid by one Robert W. Kilpatrick to the defendant, on September 23, October 24, and November 4 1881. Writ dated February 16, 1882. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions in substance as follows:

The plaintiff introduced evidence tending to show that Kilpatrick lost certain sums of money to the defendant, by playing at cards on the days above named.

It appeared that Kilpatrick, until March, 1883, was a minor under the age of twenty-one years; and that the plaintiff was his legally appointed guardian.

The evidence was conflicting as to when the plaintiff was first informed of the losses of Kilpatrick; there being evidence tending to show that he first knew of the losses early in December, 1881, and other evidence tending to show that he first heard of the losses in the latter part of January 1882.

The defendant requested the judge to rule that, if the jury found that Kilpatrick was a minor when this action was brought, his right, as loser, to an action of contract to recover would not be barred until three months after he became of the age of twenty-one years. The judge declined so to rule, and instructed the jury as follows: "The plaintiff may sue and recover in this action, no other objection existing to a recovery, if the loser of the money, though a minor, did not, without covin or collusion, prosecute with effect for such money within three months after the loss thereof, and this action was brought after the expiration of said three months."

The defendant also asked the judge to rule, that, if the jury found that the plaintiff knew of the alleged losses within three months of their date, this action could not be maintained, because the plaintiff had a right of action in contract as guardian; and that the not prosecuting such action for the benefit of his ward was evidence of collusion under the statute. The judge refused so to rule, and instructed the jury as follows: "The plaintiff as guardian of Kilpatrick was authorized to demand and sue for all debts due to his ward, and to appear for and represent him in all legal suits and proceedings; and if the plaintiff, as guardian, failed or neglected to do his duty or exercise his authority in respect to the recovery of the money in question, lost by his ward at play, in an action of contract on the part of the ward, such conduct on the part of the plaintiff may be considered by the jury on the question of the existence of the covin or collusion mentioned in the statute between the plaintiff and the loser of the money."

The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.

Exceptions overruled.

W. E. Boynton, for the defendant.

A. Cottrell, for the plaintiff.

Field, J. C. Allen & Holmes, JJ., absent.

OPINION

Field, J.

The infant's right of action, as loser of the money, to recover what he had lost, expired at the end of three months from the time of the loss. Babcock v. Thompson, 3 Pick. 446. Plummer v. Gray 8 Gray 243. Low v. Blanchard, 116 Mass. 272. Cole v. Groves, 134 Mass. 471. Gen. Sts. c. 85, § 1. Pub. Sts. c. 99, § 1.

This action of the loser of the money is not within the provision of the Pub. Sts. c. 197, § 9. Gen. Sts c. 155, § 6. It is not an action for a penalty, and is an action specially limited by law, and is within the provisions of the Gen. Sts. c. 155, § 22. Pub. Sts. c. 197, §...