Holland v. Swain

Mr. Justice Dickey delivered the opinion of the Court: This is an action of replevin, brought in the circuit court of Williamson county, on the 15th day of April, 1876, by Swain, defendant in error, against Holland and Gurley, plaintiffs in error, for the possession of a certain horse of the value of $500. Defendants below pleaded that on the 5th day of September, 1875, the horse was put up by plaintiff on a wager upon a horse race and lost, and delivered to one Albright, the winner, and that afterwards, on April 1, 1876, defendant Holland in good faith, for a valuable consideration, bought the horse of Albright without notice that Albright had acquired the horse by wager. Another plea was filed setting out in substance the wager, loss, and delivery of the horse to Albright under the wager, and that the action was not brought within six months, pleading in bar sec. 132, ch. 38 of Rev. Stat. 1874. To each of these-pleas the circuit court sustained a general demurrer, and judgment was rendered on demurrer for plaintiff below. To reverse this judgment defendants below bring this writ of error. When the owner of personal property puts the same into the possession of another with the present intention of parting with his title thereto, and the person thus in possession as owner by the consent of the real owner, sells and delivers the same for a valuable consideration to a bona fide purchaser, whether such original delivery of possession occurred by reason of fraud or of a void contract, or from any other cause, such original owner can not recover the property from such honest purchaser. Jennings v. Gage et al. 13 Ill. 610. By section 132 of our Criminal Code, it is enacted, that any person who shall, by any wager upon any race, lose to any person any money or other valuable thing amounting to $10, and shall deliver the same, the person so losing and deliveriug the same may sue for and recover the same or the full value of the same from the winner thereof; and in case the loser in such case shall not within six months sue for such money or other valuable thing, it shall be lawful for any person to sue for and recover treble the value of the money or other thing, by action against the winner, one-half to the use of the county and the other to the person suing. It can not be supposed that it was the legislative intention ' that after the expiration of six months the winner of property should be liable to the loser for the property, and that at the same time the winner should be 'liable in addition for treble the value to another in a qui tarn action. This can not be so, unless courts increase the pénal character of the statute by construction, which is not allowable. But it is insisted that the bringing of this action suspends the qui tarn action, and that a recovery in this action bars a qui tarn action. This Avould necessarily do violence to the language of the statute; for should the plaintiff in such action aver that no action had been brought by the loser Avithin the six months, he has the statute for his support in claiming his right of action, and it seems it would be no answer to such action to say that the loser had recovered the property by an action brought after the expiration of the six months. We must conclude that the legal effect of the statute is to limit the time in which the loser may bring his action to six months, and to bar the bringing of such action after the lapse of that time. The judgment must be reversed, and the cause remanded with directions to overrule the demurrer to these pleas, and permit the plaintiff to file his replications thereto if he desires, otherwise to render judgment for the defendants below upon the pleas. Judgment reversed.