
    McAllister against Gallaher.
    IN ERROR.
    Money deposited with the stake-holder of a horse-race, as a forfeit by either party whose horse did not run, is recoverable from such stake-holder'by' virtue of-the act of Assembly. • ' ; . ■'
    tf the stake-holder pays the money to him to whom it was forfeited, without notice, and in good faith, he is protected by the limitation,'contained in this act, within Which suit must be brought. But it Is otherwise if he acted unfairly, or connived with one of the parties; and this isrightly left to the jury.' -i
    Error to the Common Pleas of Mifflin County.
    
      Gallaher and L ’ebo made a bet of one hundred dollars upon a bdrse:race, to be run' at a future time, and each deposited fifty dollars in"the hand- of William, McAllister, which fié, who did not appear upon the ground with his horse at the appointed timé, should forfeit to the' other. Gallaher did not appear, arid McAllister gave up the forfeit to Lebo, upon being indemnified'. Upon the trial of the causé, it was alleged, arid somé proof given of.it, that some unfair practices were résorted to by Lebo, ' to prevent Gallaher from appearing on the ground with his horse, and that McAllister wa's'priyy thereto. The bet was made'and' the money deposited in September; and this suit was riot brought until the following May.'
    The defendant asked the Court to instruct the jury:
    1st. That money deposited with a stake-holder as a' forfeit, in case of no race, arid actually forfeited, cannot be recovered back under the act of Assembly against horse racing; and that' such a case is not within the act providirig for recovery back, and plaintiff' is riot entitled to recover. '
    •' 2. That a stake-holder is protected by the limitation in the fourth section of said act; and that if the jury'believe, that suit was not instituted 'within two calendar months after the loosing and payment, this suit cannot be sustained, and plaintiff is hot entitled to recover.
    ■' 3. Thát if the jury'believe, that no notice was given by plaintiff” to defendant, not to pay over the money, before actual payment to the winner' of the forfeit, plaintiff is not entitled to recover.
    1 To which the Court {Burnside president] answered:'
    1. We say that money can be recovered from a stake-holder that is deposited as a forfeit in case of no race.
    ■' 2. If the stake-holder pays in good faith, without noti.ee, the limitation of-two months will protect him; but the jury will iriquire, did McAllister act with good faith? Did he deliver if over as'the parties agreed he should? jf he did not, this action can be sustained' ágáinst him. If he acted unfairly arid connived with' one' of the' parties, and paid over the money, and the jury should believe the money was not lost, he will not be protected. 1" " ' ’
    
      The opinion of the court was assigned for error and argued by
    
      Pol ter'for plaintiff in error.
    
      F. Watts, for defendant in error.
   Per Curiam.

AH contracts and agreements, the consideration of which is money,'or airy other thing betted, being declared unlawful and void,the principle of this case seems to have been decided in McAllister v. Hoffman, 16 Serg. & Rawle 147; and we discover nothing erroneous in the record. 1 1 ' ' ‘

judgment affirmed.  