Smith v. Ray

• Decision Date: 01 October 1892
• Citation: 16 S.E. 90,89 Ga. 838
• Parties: SMITH v. RAY.
• Court: Georgia Supreme Court

16 S.E. 90

89 Ga. 838

SMITH v. RAY.

Supreme Court of Georgia

October 1, 1892

Syllabus by the Court.

1. 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. 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 declaration 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.

Error from city court of Macon; JOHN P. ROSS, Judge.

Action by B. B. Smith against B. H. Ray to recover $840 alleged to have been lost on a game of chance. A demurrer to the declaration was sustained, and plaintiff brings error. Reversed.

M. G. Bayne, for plaintiff in error.

L. D. Moore and Dessau & Bartlett, for defendant in error.

PER CURIAM.

Judgment reversed.