Morrell v. Fuller

7 Johns. 402

• Court: New York Supreme Court
• Decided: February 15, 1811
• Status: Published

Opinion

IJr Curiam.

The declaration does not state a cause of action, because it has no averment that the party aggrieved neglected to sue within the time prescribed by the statute. For aught that'-appears, Thomas Morrell may have sued for ■ the debt in question, and without an omission on his.part to sue, the plaintiff has no right of action. This case is within the reason, and embraced by the principle, of Cole v. Smith. (4 Johns. Rep. 193.) Though the expressions are somewhat different in that part of the two statutes relative to gaming and to usury, which gives an action to the common informer; yet there is the same reason and justice in both cases, that the declaration should state the facts which are essential to constitute a right of action. The record which the court referred to in Cole v. Smith, stated the neglect of the injured party to prosecute, and this is a material averment, when the common informer prosecutes, under either statute. Judgment must therefore be arrested.

Judgment arrested..