
    Ira N. Beals vs. Paschal M. Thurlow.
    
      limitation is one year for suit by third, party to recover gaming losses.
    
    So much, of R. S., c. 125, § 4, as authorizes an action on the case to be brought, in certain contingencies, by any person to recover from the winner treble the value of property received by Mm upon a gambling transaction, one half to the plaintiff’s use, and the other to the use of the town where the offence was committed, is penal, and should be strictly construed; therefore such action must be commenced witMn a year after the offence is committed, or it will be barred by R. S., c. 81, § 90.
    On facts agreed.
    The plaintiff, on the sixth day of January, 1874, instituted this action, declaring in his first count, that John W. McDuffee, at Lewiston, on the twentieth day of July, 1872, made a bet with the defendant upon the result of two races to be run against each other by their respective horses, “King William” and “Phil Sheridan,” which was' won by the latter on the twenty-eighth day of August, 1872, and on the thirtieth of that month, the stakeholder, by McDuffee’s order, paid over the $250 put up by that gentleman upon this wager ; that McDuffee neglected, for a space of three months, to prosecute any suit t'o recover the sum thus lost by.him; whereby this plaintiff is entitled to sue for and recover three times that amount, being $750, of the defendant, according to the statutes in this behalf provided, one half to his own use, and the other to themse of the city of Lewiston, where said bet was made, won and lost as aforesaid.
    The second count set out another bet between the same parties, upon the same horses, with a like unfortunate result for McDuffee, and like indifference to it on his part; the fifty dollars staked by him upon it having been paid over, by his direction, to Mr. Thu'r-low on the twelfth of October, 1872, five days after the second race, and he never making any effort to reclaim it; for which reason the plaintiff demanded treble that sum in this action, by virtue of R. S., c. 125, § 4. The defendant filed a brief statement, under the general issue, pleading that the suit was not brought within one year after the cause of action accrued, as required by R. S., c. 81, § 90. If the action was thus barred, the plaintiff was to become nonsuit, otherwise the cause was to stand for trial.
    
      Record & Hutchinson, for the plaintiff.
    
      Ellis v. Beale, 18 Maine, 337, decides that the statute under which this action is brought is remedial. The form is ease. Therefore, it is only barred by the lapse of six years, as provided with relation to such actions. R. S., c. 81, § 79. This action was brought under R. S., c. 125, § 4; the third section of the same chapter, limiting the remedy by indictment to six months, shows that R. S., c. 81, § 90, — which gives the remedy by indictment within two years, if no individual has prosecuted within a year,— cannot apply to these cases. The third section of c. 125 gives half the sum recovered to the town, while by c. 81, § 90, the whole goes to the State. See Frohock v. Pattee, 38 Maine, 103.
    
      Frye, Ootton <& White, for the defendants.
    The statute of limitations is properly given in evidence under the general issue. Moore v. Smith, 5 Maine, 490; Pike v. Jinkins, 12 N. H., 255; Oohurn v. Odell, 30 N. TL, 540.
    
      
      Ellis v. Beale, 18 Maine, 837, simply says that this is a remedial statute to the loser; as to a third person it cannot be so, since he needs no remedy who suffers no ill. The same statute may be — and this one is — partly penal and partly remedial. Potter’s Dwaris on Statutes, 247, note 36, and cases there cited. The last clause of the fourth section of this statute is purely penal, since it “imposes a forfeiture or penalty for transgressing its provisions, or for doing a thing prohibited.” Potter’s Dwaris, 74, 75, (edition of 1871;) Bouv. Law Diet., Tit., “PenalPlummer v. Gray, 8 Gray, 243.
   Barrows, J.

The plaintiff sues to recover, by virtue of the provisions of the fourth section of chapter 125 of the Revised Statutes, one moiety to the use of himself, and the other for the city of Lewiston, treble the amount of certain moneys lost and paid by one John W. McDuffee to the defendant, in betting upon horse races.

The suit was not commenced until more than one year had elapsed after the last transaction alleged in the writ between the defendant and McDuffee occurred.

The defendant relies upon R. S., c. 81, § 90, which provides that “all actions and suits for any penalty or forfeiture on any penal statute brought by a person to whom the penalty or forfeiture is given in whole or in part, shall be commenced within one year after the offence was committed.” But the plaintiff insists that the penalty imposed upon the winning gambler is provided in the third section of chapter 125, and that the fourth section must be deemed remedial only, as otherwise the offender would be liable to be twice punished, contrary to fundamental law; and therefore, he claims that this action of the case given by § 4, is subject only to the six years’ limitation provided in R. S., c. 81, § 79. We think otherwise. It is true, that part of the section which gives the loser an action to recover his money or goods was held in Ellis v. Beale, 18 Maine, 337, to be remedial; but the remaining portion which authorizes any person to prosecute the winner in a qui tarn action for treble the amount of his unlawful gains, in ease the loser does not, within three months, avail himself of his right to retrieve his loss, is purely and distinctly penal; and such action comes directly within the purview of R. S., c. 81, § 90.

The plaintiff does not sue to compel payment of any debt due to himself, or for the redress of any wrong done to himself; but simply to enforce a pecuniary penalty against a wrongdoer, which must be done in the mode and time prescribed by the statute, or not at all. Plaintiff nonsuit.

Appleton, C. J., Walton, Dickerson, Yiegin and Peters, JJ., concurred.  