Opinion
November 19, 1903.
January 6, 1904.
Present: KNOWLTON, C.J., MORTON, LATHROP, BARKER, BRALEY, JJ.
St. 1890, c. 437, § 2, giving the right to recover money paid onwagering contracts, was amended and not repealed by St. 1901, c. 459, and so far as it was unchanged by the later act remained in force as to transactions which occurred before the amendment.
CONTRACT, for money alleged in the amended declaration to have been paid on wagering contracts on certain dates in the years 1898 and 1899. Writ dated November 5, 1902.
The defendants demurred, alleging, among other causes of demurrer, that the provisions of St. 1890, c. 437, § 2, were repealed by St. 1901, c. 459.
In the Superior Court Richardson, J. sustained the demurrer and gave judgment for the defendants. The plaintiff appealed.
F.F. Sullivan, (J.M. Sullivan with him,) for the plaintiff.
H.E. Warner, for the defendants.
This action comes before us on a demurrer to the plaintiff's amended declaration. The several counts set forth causes of action under the St. 1890, c. 437, and under the amendatory St. 1901, c. 459, for the recovery of money paid on stocks contracted to be bought upon margin. They follow substantially the language of the later statute, although they all describe transactions which occurred before the amendatory act was passed. We do not understand from the argument that the counts are deemed by the defendant insufficient in form, if the St. 1890, c. 437, is still in force in reference to transactions which occurred prior to the enactment of the St. 1901, c. 459, and which come within the description of the amendatory act. We are of opinion, for reasons stated in Wilson v. Head, ante, 515, that all the cases in which there may be a recovery under the later statute are included in the earlier statute, and that as to such cases, the earlier statute has never been changed, but remains in force. The language in which the averments are made, although it takes the form found in the later statute, states a case in every count which is also within that part of the earlier statute which remains unchanged, and the entry must therefore be,
Demurrer overruled.