
    Lewis Guthman v. M. C. Parker.
    1. Gaming. When the thing wagered may ~be recovered. In gaming contracts, when the impending event is undecided, and after the event as against a stakeholder, who has been notified not to pay the thing lost to the winner, and as against the other party who receives the wager after such notice to the stakeholder, the owner may disaffirm the contract and recover his property.
    2. Same. Limitation. Act of 1799, eh. 8, $ 4. The act of 1799, ch. 8, g 4, limiting suits brought for the recovery of money or property lost at gaming, to ninety days from the payment or delivery thereof, has no application to cases where the contract is disaffirmed, and notice given not to deliver the wager.
    EROM MONROE.
    A wager was made between tbe plaintiff in error and tbe defendant upon tbe last Presidential election. Tbe plaintiff in error proposed to take $100 for a watcb be bad, payable when Buchanan carried Tennessee for President. Tbe defendant in error accepted tbe proposition, and the watcb and $100 were placed in the hands of one Taylor, as stakeholder, until the event of tbe election was ascertained. Before tbe election was held, and before the result was known, the defendant in error notified Taylor not to pay over the money, on tbe ground that tbe watcb was not such as was represented. After the result was ascertained, the plaintiff in error applied to the stakeholder for the money, when he was informed that notice had been given not to pay the money over. The money was again demanded, and the stakeholder paid it over. The money was paid more than ninety days before the suit was brought. The watch ivas not worth more than $65.
    The Court below charged the jury, that if the plaintiff in error received the money, knowing the stakeholder was notified by the plaintiff not to pay it over to him, he received it wrongfully, and the plaintiff was entitled to recover in this action to the amount of $50, notwithstanding it may have been received more than ninety days before suit was brought. Verdict and judgment at the May Term, 1859, SwaN, J., presiding, for the plaintiff. The defendant appealed.
    Hall, for the plaintiff in error.
    BrowN and Cocke, for the defendant in error.
   Wright, J.,

delivered the opinion of the Court.

The principle of the cases of Perkins v. Hyde, 6 Yer., 288, and Allen v. Dodd, 4 Hum., 131, governs this. In wagering contracts, when the impending event is undecided, and after the event, as against a stakeholder who has been notified not to pay the thing lost to the winner, the owner may come and disaffirm the contract, and recover his property. This is so, upon common law principles, which allowed him to repent, pending the event and before the illegal contract was executed. Parker here, before the election, disaffirmed the contract, and notified Taylor, the stakeholder, not to pay over the money deposited; and of this he notified Guthman. And yet, in defiance of this notice, he received the money from Taylor. He cannot be permitted to retain it, and must, upon the authority of the above cases, be held to have received it to the use of Parker.

In this view of the case, it is obvious the act of 1799, ch. 8, sec. 4, limiting suits brought for the recovery of money or property lost at gaming to ninety days from the payment or delivery of the property, can have no application. The action rests upon common law principles; and so the cases of Perkins v. Hyde and Allen v. Dodd hold.

There is nothing in this record to show that Parker ever received the watch, or where it is; nor is any question made in reference to it. We are therefore relieved from considering, what effect, if any, it would have upon the action, if it appeared he still retained it, and had not offered to restore it to Guthman.

The judgment of the Circuit Court will be affirmed.  