Barnes vs. Turner. was very properly rejected. In the case of Reed vs. Quisenberry, (Mss. opin., winter term, 1849,) it was decided that, in the sale of a tract of about 135 acres, a deficit of two acres was large enough, considering the price of the land, ($30 per acre,) to entitle the purchaser to relief. 3. We are of opinion, however, that the allegations of the petition, with respect to the quantity of the surplus, was sufficiently contraverted by the answer, and for that reason the demurrer should not have been sustained. The language of the defendant on this point is: he "has not enough knowledge or information to constitute a belief whether there is 11 acres of surplus land, above the one hundred and sixty acres, and denies that he is indebted" on account of said surplus, &c. This, we think, is equivalent, upon a fair interpretation of the language, to a denial of "any knowledge or information thereof sufficient to form a belief." (Code, sec. 125.) For the error indicated the judgment is reversed, and the cause remanded for further proceedings in conformity with this opinion. CASE 16-PETITION ORDINARY-JANUARY 16. Barnes vs. Turner. APPEAL FROM THE MORGAN CIRCUIT COURT. 1. The second and fourth sections of chapter 42 of the Revised Statutes, (title GAMING,) secure to the loser and his creditor the right to sue for money or property lost at gaming, for five years, and the exclusive right to do so for six months, after which any other person may sue for its recovery within the five years; the one first suing to have the preference. 2. If the loser or his creditor sues, the recovery will only be the amount lost, and be for the sole benefit of the party suing. If another sues, the recovery will be treble the amount lost and won, one-half to the use of the plaintiff, the other to the Commonwealth. 3. Although more than six months may have elapsed, the loser has the right to Barnes vs. Turner. adjust the loss by private arrangement with the winner, if no other person has commenced suit. If the transaction be made in good faith by both parties, and free from any device to evade the statute, both the winner and loser should be protected. 4. The 2d sec. of art. 22, chap. 28, Revised Statutes, (1 Stanton, 406,) does not apply to the case supra. SIMPSON & SCOTT, for appellant, cited Revised Statutes, chap. 42, secs. 2 and 4; Ib., chap. 28, art. 22, sec. 2. JUDGE WILLIAMS DELIVERED THE OPINION OF THE COURT: Barnes sued Turner to recover $1,800, which he alleges Turner had won of Cox at cards, within the last five years, and more than six months previous. Turner denied having so won more than six or seven hundred dollars; also set up as a defense that, recognizing Cox's right to recover, that he and Cox, before the bringing of the suit, had settled the matter, and he had paid Cox the full amount won; that this arrangement was made in good faith, with no design to evade the laws against gaming. Cox was the only witness. Without setting out his evidence, we say it tended to prove that Cox, being in low pecuniary circumstances, whilst Turner was independent, believing the money could be recovered, Turner proposed a settlement, preferring that Cox, rather than any one else, should have it. The parties did settle, and Turner executed his note to Cox for eight hundred dollars, which he partly paid to Cox and his creditors before the bringing of this suit, and the remainder afterward, but before the trial. Thus this covered the full amount of what had been so won of him during the last five years, and some of previous date. That he, Cox, did not know any one intended bringing suit; Turner said some person had been writing to Maysville about his having won money from witness. That this settlement was made in good faith, and not to evade the statute against gaming. 1 After this evidence was through, the plaintiff asked the court to instruct the jury: "If the jury believe from the evidence that, after Cox and Turner had played, and Cox and Turner had a reckoning as to the amount that Turner had won, and it was agreed to be about $800, that T. had won and received of C., and that T. agreed to pay back to C., the $800 and Barnes vs. Turner. executed his note for $800-the law is for plaintiff twice the amount of said sum of $800; provided they believe that $800 was the sum received by T., from C., or so of any greater or less sum; and, provided further, they believe that said reckoning took place after the expiration of six months from the winning and receipt of the money by T." The court refused this, and instructed: "If the jury believe from the evidence that the defendant, within five years before the action was begun, at a game or games of cards, won and received from N. W. Cox money or property of the value of five dollars or upwards, within the space of twenty-four hours, the law is for the plaintiff, and the jury must so find for him three times the value of the money or property they believe, from the evidence, the defendant so won and received of him within five years before the action was begun. Unless the jury should believe, from the evidence, that the defendant, in good faith and not to evade the gaming laws, recognized the right of the loser to be restored to the value of the thing by him so won, and the loser recognizing his right to recover and receive it back, bona fide made a settlement of it, and the defendant executed to the loser his note for the full amount so won and received; and the loser, recognizing his right to recover and receive it, did receive it in full of the same, and it was in full, which has been since, in good faith, and not to evade the gaming laws, paid, a part before the suit was begun and a part since, then the law is for defendant, and the jury must find for him. But, if they believe, from the evidence, the settlement and payment, between Turner and Cox, was not bona fide made, but was merely a device to evade the gaming laws, then the law is for the plaintiff, and the jury must find for him." The jury returned a verdict for the defendant. Plaintiff moved for a new trial, which was overruled, and the plaintiff appealed. By the second section of our statute against gaming the loser, or any of his creditors, may recover back money or property lost at cards within five years. Barnes vs. Turner. By the fourth section, if the loser, or his creditors, do not sue within six months, any other person may sue the winner, and recover treble the amount lost, if the suit is brought within five years. One-half so recovered shall be for the person so suing, the other for the commonwealth. The loser, creditor, or other person first suing, after the six months, to have the preference. (1 Stanton's Revised Statutes, page 561-2-3.) This statute, when correctly analyzed, secures to the loser and his creditor the right to sue for the lost money or property for five years, and the exclusive right to do so for six months, after which any other person may sue for its recovery, the one first suing to have the preference; with this difference, however, that, if the loser or his creditor sues, the recovery will only be the amount lost, and for the sole benefit of the loser or his creditor, whichever may bring the suit,-if any other person sues, the recovery will be treble the amount lost and won, one half to the use of the plaintiff, the other to the commonwealth. Cox, still having the right to sue for five years, if no other person had commenced suit, he had the right to adjust the matter by private arrangement, provided he did this in good faith to get back what he had lost, and not as a device to evade the statute. As the recovery would enure to his benefit on any suit he might bring, he violated no law, nor public policy, by a recovery of his rights without suit; and, if the transaction was made in good faith by both parties, and free from any device to evade the law, both the winner and loser should be protected. There is nothing in the second section, twenty-second artiele, (1 Stan., Rev. Stat., page 406,) which changes, or in any manner modifies, the rights of these parties, or alters the first recited statute. There was no error in giving or refusing instructions, nor in the finding of the jury. Wherefore the judgment is affirmed. Duncan vs. Wickliffe. CASE 17-PETITION ORDINARY-JANUARY 17. Duncan vs. Wickliffe. APPEAL FROM THE MUHLENBURG CIRCUIT COURT. 1. The filing of an affidavit by the defendant controverting the ground upon which an attachment issued, and praying for a discharge thereof, is an appearance to the action. The attachment authorized by section 221 of the Civil Code is a provisional remedy in a personal action. It is not distinct and cannot be separated from the action. They constitute but one proceeding. 2. In section 289 of the Civil Code, which declares that the affidavit of the plaintiff upon which the attachment is issued, and the affidavit of the defendant controverting that of the plaintiff, shall be regarded as the pleadings in the attachment, the words, "and have no other effect," were introduced merely for the purpose of preventing the affidavits from being regarded as evidence. 3. Where no motion was made in the court below to correct a clerical misprision, it cannot be complained of in the court of appeals. JOSEPH RICKETTs and B. E. PITTMAN, for appellant, cited Civil Code, sec. 289. C. EAVES, for appellee. JUDGE BULLITT DELIVERED THE OPINION OF THE COURT: Wickliffe sued Duncan, by an ordinary petition, filed March 27, 1862, to recover the amount of a note executed by Duncan to Wickliffe; and upon an affidavit that Duncan was a nonresident obtained an attachment of his property. At the ensuing term of the court, and after the lapse of more than 20 days from the filing of the petition, Duncan filed an affidavit, in which he denied that he was a non-resident, and prayed for a discharge of the attachment. Afterward, at the same term, no answer to the petition having been filed by Duncan, and process not having been served, a personal judgment was rendered against him for the amount of the note, from which he appealed. The only question is, whether or not the filing of the affidavit, to procure a discharge of the attachment, was pearance to the action. an ap The attachment authorized by section 221 of the Code is not merely a proceeding in rem, like that authorized by the act of 1837, (3 S. L., 12,) and by the act of 1838, (3 S. L., 116.) The |