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Yarter v. Flagg

Ora A. Yarter v. Dennis F. Flagg

Yarter v. Flagg, 9 N.E. 649 (Mass. 1887)
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Court
Massachusetts Supreme Judicial Court · State Highest Courts
Decided
January 7, 1887
Judges
Allen
Citations
9 N.E. 649143 Mass. 2801887 Mass. LEXIS 285
Headnotes
An action, under the Pub. Sts. c. 99, §§ 1, 2, to recover of the owner of a building treble the amount of money lost therein by gaming, does not survive against the legal representatives of the defendant, either at common law or by the Pub. Sts. c. 165, § 1.
Summary
Tort, under the Pub. Sts. c. 99, §§ 1, 2, to recover of the owner of a building treble the value of money lost therein by Charles F. Yarter in gaming. Writ dated February 11, 1884. The defendant's death was suggested on March 20, 1885. An order summoning in the executors of his will issued on June 4, 1885, returnable in July, 1885. The executors appeared specially, and filed a motion to dismiss, on the ground that the action did not survive. After a hearing in the Superior Court, Brigham, C. J., sustained the motion, and ordered the action to be dismissed. The plaintiff alleged exceptions.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Allen

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W. Allen, J.

The Pub. Sts. c. 99, §§ 1, 2, in giving an action of tort to a common informer to recover of the owner of a place in which property is lost by gaming treble the value thereof, provide for the recovery of a penalty; and the action does not survive against the representatives of the defendant, either at common law or by the Pub. Sts. e. 165, § 1.

The assumption on which the argument for the plaintiff is founded, that, prior to the General Statutes, the action to recover a like penalty survived because the form of the action was debt, is unwarranted. The earlier statutes, passed when debt was the common action for penalties, (St. 1793, c. 43, § 4; Rev. Sts. e. 118, § 42,) gave a qui tarn action of debt to recover a penalty, one half of which was for the use of the Commonwealth. The General Statutes, passed after the Practice Act (St. 1852, c. 312, § 2) had provided that tort should include all actions for penalties, prescribed the action of tort, and gave the whole penalty to the informer. St. 1785, a. 58. Rev. Sts. e. 50, § 12. St. 1837, o, 179. Gen. Sts. c. 85, § 1. Plainly neither action can survive against a defendant.

Exceptions overruled.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1896: 11921: 11923: 11925: 11949: 118962026peak 1896 · 1

Relies on it most ⓘ

  1. Sullivan v. Associated Billposters & Distributors of United States & Canada6 F.2d 1000 (2d Cir. 1925)
  2. Putnam v. Savage244 Mass. 83 (1923)
  3. E. S. Parks Shellac Co. v. Harris129 N.E. 617 (Mass. 1921)
  4. Donovan v. Eastern Racing Ass'n86 N.E.2d 903 (Mass. 1949)
  5. Aylsworth v. Curtis33 L.R.A. 110 (R.I. 1896)

Most recent

  1. Donovan v. Eastern Racing Ass'n86 N.E.2d 903 (Mass. 1949)
  2. Sullivan v. Associated Billposters & Distributors of United States & Canada6 F.2d 1000 (2d Cir. 1925)
  3. Putnam v. Savage244 Mass. 83 (1923)
  4. E. S. Parks Shellac Co. v. Harris129 N.E. 617 (Mass. 1921)
  5. Aylsworth v. Curtis33 L.R.A. 110 (R.I. 1896)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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