delivered the Opinion of the Court.
This plaintiff declared against the defendant, in debt, for two hundred and forty dollars, bet at games of cards by the defendant and a certain William Day. The one moiety thereof is alleged to have been bet by the defendant, and the other by Day, who, after having lost his bet, is stated to have paid the amount to the defendant, &c.
The defendant pleaded two pleas; to the first of which issue was taken by the plaintiff to the country5 and to the other he filed a demurrer. The demurrer was joined by the defendant, and the plea adjudged g0QJd by th/COurt.
The correctness of that decision is the only question made by the assignment of errors.
The plea is in the following words: “And for further plea in this behalf, the defendant says, actio non, because he says, that he was not indebted to the said Estill, and the trustees of the Madison Academy, or either of them, the baak notes and money in their •declaration mentioned, or any part thereof, within three months next before the emanation of the plaintiff’s original writ herein; and this he is ready to verify,” &c.
This plea is one of a most singular and novel character, and contains no statement which can, upon any legal principle, form, any good defence to the plaintiff’s action. In actions of this sort, brought f . „ . . o by a common tnlormer, to recover a forfeiture declared by statute, no right to the thing sued for, attac^es to or vests plaintiff before suit brought, The right to recover the thing forfeited is given by the statute to whomsoever may sue, and it is by the ac(. 0f commencing suit, and by that only, that the light to the thing vests in the plaintiff. , Until the action was commenced by the plaintiff, therefore, the defendant could not have been indebted to him,
But, though not presented by the plea, the question is one that may arise on the return of the cause to the court below. Tiie general issue is also pleaded; and the doctrine is well settled, that in actions onpenal statutes, it is not necessary for the defendant to plead the statute of limitations; but he may use it in evidence on the trial of the general issue.
It is therefore proper that we should now determine whether, after the lapse of three months from the time of forfeiture, the action can be maintained to recover the tiling forfeited.
t- ii n iii „ „ It is undoubtedly true, that by the act of 1798, no action could be maintained to recover the thing lost at any game or games whatever, after the ex-expiration of three months; so that if tiie limitation prescribed in that act is to control the present action, the question must be decided in the negative. But it will be perceived by turning to that act, that it applies only to actions which may he brought to recover something lost at games and actually delivered or paid. Until the thing lost is actually delivered, no action can, according to the provisions of that act, be brought by any person to recover it, nor can the limitation prescribed by that act commence running before the thing lost is delivered.
It is not however of the provisions of
It results, therefore, that three months is not the limitation by which actions founded on the act of 1799 are governed.
The judgment must be reversed with cost, the cause remanded to the court below, and further proceedings there had not inconsistent with this opinion.