Low v. Blanchard

116 Mass. 272, 1874 Mass. LEXIS 77

• Court: Massachusetts Supreme Judicial Court
• Decided: November 9, 1874
• Status: Published

Opinion

Gray, C. J.

This action could not be maintained at common law, and depends entirely upon the statutes of the Commonwealth. Babcock v. Thompson, 3 Pick. 446.

By the earlier statutes of Massachusetts, any person losing money at gaming might recover it back by action commenced within three months; and if he did not sue within that time, any other person might sue for and recover treble the value thereof, one half to his own use, and one half to the use of the poor of the town in which the offence was committed. Prov. St. 1742 (16 Geo. II.) Anc. Chart. 542. St. 1785, c. 58.

The Revised Statutes of 1836 omitted the express limitation of three months in the clause permitting the loser to sue for the money lost; but still provided that, if he did not sue within three months, any other person might sue for and recover treble the value, one half to his own use, and the other to the use of the Commonwealth. Rev. Sts. c. 50, § 12.

The alteration in the terms of the statute raised a question of the effect of the omission of the express limitation; whether, on the one hand, the legislature had thereby repealed the special limitation of an action by the loser; or whether, on the other hand, such a limitation was still to be implied from the retaining of the provision that, if the loser did not sue within three months for the amount lost, any other person might sue for threefold that amount. The latter construction was adjudged to be the true one in Plummer v. Gray, 8 Gray, 243.

The legislature, in the subsequent revision and codification of the General Statutes, reenacted the provisions of the Revised Statutes, with no substantial alteration, except in one particular ■—which has no tendency to extend the right of the loser—of not giving to the public a moiety of the treble value, when recovered by a third person. Gen. Sts. c. 85, § 1. And no further change in the statutes has since been 'made.

The legislature, by thus substantially reenacting, without material alteration, a statute which had been judicially expounded by this court, must be presumed to have intended that the same words should receive the same exposition and have the same meaning in the new statute as in the old one. Grace v. McElroy, 1 Allen, 563, 566. Cronan v. Cotting, 104 Mass. 245, 249.

As this view of the case is decisive, it is unimportant to consider how far it would be appropriate to say, with Chief Justice Shaw, in 8 Gray, 244, that the statute must be strictly followed; or, with Mr. Justice Dewey, in 1 Allen, 565, 566, that it should be construed liberally; or what interpretation of it we should adopt, if it were a new question.

The present action is not indeed brought against the winner, but against the owner, tenant and occupant of the house in which the money was lost by gaming. But the St. of 1837, c. 179, (which first made such a person liable, and was passed long before the decision in Plummer v. Gray,) as well as the reenactment thereof in the Gen. Sts. c. 85, § 2, expressly provides that he shall be liable to an action “ in the same manner and to the same extent as the winner thereof is liable by the provisions of ” the Rev. Sts. c. 50, § 12, and the Gen. Sts. c. 85, § 1, respectively.

It follows that the plaintiff is entitled to recover only so much of the money sued for as was lost within three months before the bringing of this action, and that, according to the terms of the report upon which the case has been reserved for our determination, there must be

Judgment for the plaintiff for the smaller sum.