#### Forrest v. Hart.

j I From Halifax. J

A. and B. made a wager on a liorse race in 1816. The money was deposited with a stakeholder, and, after the race was run, A. demanded of the stakeholder his deposit. The stakeholder refused to return the deposit, and A. brought an action for money had and received. A. is entitled to recover; for

The act of 1810, ch. 14. prohibits the creation of any right on the event of a horse race, and leaves the parties, as to any remedy, precisely where they were if no such agreement had been made.

As long as the money remains in the hands of the stakeholder, it belongs to him who has the legal right; and the legal right, which was in the person depositing, when the deposit was made, cannot be divested out of him and placed in another by the event of an illegal wager.

Whilst the money is in transitu, before it comes to the actual possession of the winner, by the direction of the loser to pay it over, after the event, or by his omitting to forbid the payment, when he might, if he thought proper, it is subject to be reclaimed by the person who made the deposit.

This was an action for money had and received. The Plaintiff and Henry Hunter made a wager on a horse race in the year 1816. The money was deposited in the hands of the Defendant as a stakeholder. After the race was run, the Plaintiff demanded of the stakeholder a return of his deposit, which was refused, and this suit was brought to recover it. The presiding Judge refused to admit any evidence to shew which of the parties won the race, and instructed the Jury, that if the Plaintiff demanded his deposit of the stakeholder, after the race was run, and before it was paid over to Hunter, he was enti-*459tied to recover. The Jury found a verdict for the Plaintiff, for the amount of the deposit and interest from the time he demanded it of the stakeholder. Á rule for a new trial being obtained by the Defendant, the same was discharged by the Court, and the Defendant appealed.

Mordecai, in support of the rule.

— The act of 1810, ch. 14, declares in its preamble, that “ Horse-racing is productive of many evils to the good citizens of the State,” and therefore avoids all contracts respecting it. When a man comes for relief into a Court of Justice, he comes with an ill grace, when, by his own shewing, he has been guilty of an offence to the Laws, and the loss for which he asks relief has been brought upon him by his contempt of them.* In pari delicio, melior est conditio possidentis.” In Lowrie v. Bordieu,† Lowrie paid his money on a wager, waited tili it had been won by Bordieu, and then sued to recover his stake $ and it was held he could not recover. In Andrelv v. Fletcher,‡ Andrew paid his money on a wager tvhich he toon, Fletcher refused to pay, and Andrew sued for his stake, which it was unconscien-tious in Fletcher to retain. But the Court held he could not recover, and that the principle was the same as in Lowrie v. Bordieu.

The act of 1810, ch. 14, against horse-racing, is copied from the act of 1788, ch. 5, against gaming. In Hodges v. Pitman,§ this Court decided that money fairly won and paid over could not be recovered back. If then the money had been paid by Forrest, it could not be recovered back.

Does the intervention of a stakeholder make any difference ?„ Consider the character of a stakeholder: for what is be constituted ? The parties being unwilling to trust to the honor of each other, it becomes necessary to the execution of a contract that a third person should step in as their mutual agent, with such powers as may be neces-*460gary and sufficient to secure the performance of their con-* tract. His powers are coextensive with this necessity: where the necessity ceases, his powers cease. He has ail power necessary to the execution of the contract, to wit: to keep the money in his hands until the event is decided 5 and when decided, to pay it over to the person to whom it belongs. But were he permitted to pay it to the loser, it would defeat the execution of the contract, and be a manifest breach of trust.

The action for money had and received, lies where Defendant has money which he cannot with a safe conscience keep 3 but not for money which is due in point of honor or conscience from the Plaintiff, although the payment could not have been enforced by LaV.*

Howson v. Hancock† only decides that when the money is paid over by consent of the loser, he cannot recover if back. In Cotton v. Thurland,‡ Lord Mansfield says, “ If the Defendant in this case had paid over the money “ to the winner, perhaps he would not have been answer<s able, but here it is still in his hands.” He clearly does not mean if ho had paid it over with the assent of the loser; for then he could not have been liable. Me means under the circumstances of the case, forbidden as he'was to pay it. In that case it appeared that the wager was not decided : there was a dispute who was the winner.

■ The propel* view of the case is this: Where the wager is legal, and such as might be recovered, the stakeholder cannot return the stakes without the assent of both parties, for each has an interest in the whole. Where the wager is illegal, there is a locus peniteniim to each, until the event is decided, and either may, without the assent of the other, reclaim bis stake. And this is, because the Law will afford to every man about to violate it an opportunity to stop and retrace his steps. But after thej event is decided, the repentance comes too late, and the Law *461will leave him as it finds him.* Courts of Law ought not to interfere to aid either party. They do not trust to the Law in making their contract: they trust to the stakeholder, and should look to him alone.

*

Parks Insur. 8.

†

Dong'. 451, 467. 8 Johns. 147.

‡

3 Term Rep. 266. 2 do. 162.

§

2 Law. Repos. 394.

*

2 Buit. 1005. Evans’s Essays, 4.

†

8 Term Rep. 575.

‡

5 do. 405.

*

1 Esp. N. P. 25, 12 Johns. 1. Buller’s opinion in Lowrie v. Bordieu.

Henderson, Judge,

delivered the opinion of the Court:

"We must draw the rules by which- this case is to be decided, from other sources than those of moral justice. They flow entirely from the act of Assembly which prohibits the creation of any right on the event of a horse-race, and leaves the parties, as to any remedy, precisely where they were, if no such agreement had been made. And were it not that T am bound down by decisions, I should say that all money or other thing paid or delivered on any such event is still the property or right of the original owner. For it bears no analogy to a gift, where the property cannot be recovered back, although there is no consideration, but a delivery on a vicious consideration, which can give no right. But it is now too late to contend that money can be recovered back after it has been actually paid in discharge of an illegal wager.

In all the cases where money has been deposited with an agent or stakeholder, it has been attempted to retain it or to justify the delivery to the winner, upon the ground only of the possession of the stakeholder being the possession of the winner, and that there was nothing left for the loser to do: that as far as he was trusted, he had done all he liad to do ,• thereby acknowledging the general rule, that until paid it was recoverable by the person who made the deposit. It appears to me extremely clear that as long as the money remains in the hands of the stakeholder, it belongs to him who has the “ legal rightand the legal right, which certainly was in the person depositing, when the deposit was made, cannot be divested out of him and placed in another by the event of an illegal wager. *462Rights cannot be divested and created by such means* The fact is, it was once his, and nothing has taken place which in law has divested it. I need not examine authorities to prove these positions ; the principles are admitted in all the cases, and it is quite possible that in some they have been misapplied. The case in 7 Term Reports, 535,* is badly reported ; the argument of the- counsel and the opinion of the Court do not fit the case stated, which is very clearly an action brought by the winner, not the loser, cither against, the party or the stakeholder,- for as against either he was clearly entitled to recover the 100Í. the amount of his deposit, but not the 300i. the sum alleged to be won j for on what pretence could either the loser or stakeholder retain it ? I am only surprised that so plain a case should have engaged the attention of the reporter. In the case in East, it is taken for granted that if the money be not paid to the illegal claimant, it may be recovered back -, and it was insisted that giving him credit on the books of the broker, who effected the illegal insurance, was a paying over, or amounted to a payment j and therefore could not be recovered against the broker, who was the agent or stakeholder of both parties. But it was said *463by the Court that it was no payment, anti the Plaintiff recovered. That case is much stronger than this, by reason of the credit entered on the books of the broker. We are well warranted in saying, that whilst the money is in transitu, before it comes to the actual possession of the winner by the directions of the loser to pay it over, after the event, or by his omitting' to forbid the payment when lie might if he thought proper, it is subject to be reclaimed by the person who made the deposit. The rule for a new trial must be discharged.

*

This was an action of assumpsit on an agreement made on the 14th January, 1797, by which the Defendant, in consideration that the Plaintiff had paid him 100Z. agreed to pay him 300Z. “ if articles forming the “ basis of a peace, and signed by some official characters, by which hos- “ tilities would Cease and would not recommence, were not settled be- “ tween England and France on or before the 14th September, 1797.” The declaration also contained the common money counts. On the trial at Westminster Sittings before Lord Kenyon, Ch. J. it wjas admitted that the wager was illegal, and that the Plaintiff could not recover on the special count; but, by the direction of the Judge, the Plaintiff obtained a verdict for the 100J. paid by him to the Defendant. A motion was made to set aside the verdict, and the Court of King’s Bench refused to allow the motion ¡ saying it was more consonant to the principles of sound policy and justice, that wherever money has been paid upon an illegal consideration, it may be recovered back again by the party who has thus improperly paid it, than by denying the remedy, to give effect to the illegal contract; and they referred to the case of Cotton v. Thurland, 5 Term Rep. 405.