
    Perkins vs. Hyde.
    Money deposited with a stake-holder on an illegal wager may be recovered from him, provided such stake-holder be notified not to pay it to the other party.
    The act of 1799, ch. 8, sec. 4, bars all suits brought to recover money or properly lost at gaming, unless the suit is brought within ninety days from the payment or delivery of the property. That act has no application, and does not bar an action brought against a stake-holder who was notified not to pay or deliver the money staked to the other party.
    When a wager on a horse race was made, and the plaintiff claiming to be winner, demanded the whole from the stake-holder, and notified hint not to pay the money to the other party, in whose favor the judges of the race had decided; held that the plaintiff could recover the stake deposited by him, notwithstanding he claimed the whole as winner.
    This is an action of assumpsit for money had and received by the defendant for the plaintiff’s use.
    The facts as proved are that the plaintiff and E. Breath-itt made a bet on a horse race, and each one deposited his stake of three hundred dollars with the defendant as stake-holder for both parties; plaintiff’s mare won the first heat, and in the second heat Breathitt’s horse came out ahead, and plaintiff immediately claimed the money on account of foul riding in the second heat in Breathitt’s rider. The judges, one of whom was the defendant, pronounced the second heat to have been fairly won by Breathitt’s horse, and decided that the animals should start again. Plaintiff again claimed the race because the second heat was foully run, and demanded the money from defendant as winner, and forbid defendant to pay it over; Breathitt’s horse then walked round the track, plaintiff refusing to run his mare the third heat. This took place in October, 1830; the writ issued in this suit 19th September, 1831; defendant took exceptions and appealed in the nature of a writ of error.
    The court charged the jury that horse racing was illegal, and if the plaintiff notified the defendant, the stakeholder, not to pay it over, and he did so, the plaintiff would be entitled to recover his stake; that the act of 1799, requiring suits to be brought in ninety days from the time of the payment or delivery of property lost at gaming, did not apply to this case, if the defendant was notified not to pay the money over, before he actually did pay or deliver it. The jury found a verdict for the plaintiff for the amount of the stake deposited by him.
    
      R. C. Foster, jr. for the plaintiff in error,
    insisted that the court erred in the construction of the act of 1799. That act requires the suit to recover property lost at gaming to be brought in ninety days from the payment or delivery. The delivery of the stake in this case to the defendant to hold until the race was decided, was by operation of law a payment or delivery to the winner the moment the race was determined. The notice in this case could operate nothing. The case of Yischer vs. Yates, 11 John. Rep. 23, decided by the supreme court of New York, was afterwards overruled by the court of errors of that State. Vide 12 John. Rep. 1. -
    
      Alexander and J. Marshall, for the defendant in error.
    1. Defendant in this transaction was plaintiff’s agent, and if an agent after notice not to pay over money, pay it over, he is liable to his principal therefor. Here it seems from the record, the defendant retains the money, and there is no equity or justice in suffering him to retain it without paying any consideration therefor. 1 Chitty, 27: 5 Bur. Rep. 2639.
    
      2. Thiswager °f plaintiff’s and Breathitt’s on this horse race was an illegal contract which either party might rescind at any time before the event was determined; here, while the parties were even, each one having won a heat and a third heat to be run to determine the contest, the plaintiff at this period of time rescinded the contract by refusing to run his mare the third heat, by demanding the money from Hyde and forbidding him to pay it over. The contract being thus rescinded, left defendant liable to plaintiff in this action for the amount of his stake. Stat. 1799, ch. 8, sec. 1: Hay. & Cobbs, 129: 1 Wh. Sel. 74-5: 5 Term Rep. 405, Cotton vs. Thurland:4 Taunt. Rep. 474, Smith vs. Bickmore: 11 John. Rep. 23, Viseher vs. Yates. This decision was reversed (12 John. 1) because this event was determined before plaintiff made his demand or dissented to the payment by defendant to the winners; but this case as reported in 12 John. 1, supports our case, as Perkins demanded the money before the event was determined. 2 Stark. 120: 3 Mur. 458, 172.
    3. If the plaintiff demanded the money from the defendant his agent and stakeholder, before the race was won or lost, and forbid him to pay it over, it is not material what plaintiff’s reasons were for so demanding it, he is entitled to recover whether defendant retained it or paid it over. A demand of the whole would necessarily be a demand of a half. 2 Stark. 113-14.
    4. The act of 1799, ch. 8, sec. 4, (Hay. & G. ISO) cannot affect this case; first, because it is not relied on or specially pleaded; second, because at common law one party to a wager cannot recover money back from the other after it is paid over. 3 Jac. Law Die. 162: 4 Black. Com. 172. But at the common law one party to a wager may recover his stakes from a stakeholder as above stated. 1 Wh. Sel. 74-5: 5 Term Rep. 405: 2 Stark. 120, &c. Third, because this statute itself does not apply to a stakeholder but to the winner, and was made in favor of plaintiff and not of defendant. 2 Yer. _ _ ,. Kep. 524, 532, Johnson vs. Cooper, et. al.
    5. The cause of complaint on the part of the plaintiff is that the court decided that the plaintiff should pay his own witnesses with a very few exceptions;on account of which decision plaintiff also took exceptions and appealed in error. As to the taxation of costs the plaintiff insists that as all parties concerned entered into a written agreement at August term, 1832, to try this cause from evidence of the fairness or unfairness of the race, to be given by any competent witness or testimony, the decision to be made according to the rules of honorable racing as established by the Franklin Jockey Club, which was assented to by the court, and the cause tried hy the evidence and rules mentioned in said agreement at that term when there was a mistrial; and at the February term, 1833, as the witnesses continued to attend under said agreement till the time of trial, when they were excluded by the court as mentioned in plaintiff’s bill of exceptions; that the costs ought to abide the event of the suit, otherwise defendant will reap an advantage from his own act in entering into said agreement thus sanctioned by the court. The plaintiff insists these matters cannot take this cause out of the operation of the statute of 1794, ch. 1, sec. 74, Hay. & Cobbs, 51, concerning costs, and place it on the ground of a suit in equity as to the discretion of the court in taxing costs, because there is no provision in the statute allowing this to be done. Hawks’ Dig. title, Gaming, 256.
    6. If the court should be of opinion that in consequence of said agreement plaintiff must pay his own witnesses, still this rule should not extend back previous to the time when said agreement was entered into, the day the cause was called for trial at the August term, 1832.
   Green, J.

delivered the opinion of the court.

This was an action to recover from the stakeholder. money deposited in his hands, being the amount of a wa~ ger on a horse race.

The facts were these: The plaintiff and one Edward Breathitt each staked three hundred dollars in the hands of the defendant upon a horse race. In running the first heat the plaintiff’s mare proved successful; but Breathitt’s horse won the second heat. After the second heat was run the plaintiff claimed the money, alleging that the second heat was foully run by Breathitt’s rider. But the judges of the race pronounced that Breathitt’s horse had fairly won said heat. The plaintiff still contended that the race had not been fair, demanded the money, and forbid defendant to pay it to Breathitt. The plaintiff refused to run the third heat, and Breathitt’s horse was walked around the course alone.

Horse racing is made unlawful, and all securities and agreements to pay money or other thing won on any horse race, are declared void by the first section of the act of 1799, ch. 8; consequently, the agreement between the plaintiff and Breathitt, that the money deposited with the defendant should be paid to the winner of the race about to be run, was unlawful and void.

It is well settled, both in England and several of the States, that money deposited with a stakeholder on an illegal wager, may be recovered back, provided such stakeholder be notified not to pay it to the other party. The case of Cotton vs. Thurland, 5 Term Rep. 405, is in point. There, money was deposited with a stakeholder on the event of a fight. After the battle was fought the stakeholder was notified not to pay the money to the winner. The court of King’s Bench held that an action jay to recover back the money that had been deposited. In the case of Vischer vs. Yates, 11 John. Rep. 23, money was deposited in the hands of the defendant by the plaintiff and others, on the event of an election of governor of New York. Afte? it had been ascertained what yras the result of the election, the defendant was notified not to pay over the money to the winner. The defendant refused to pay the money over to those who made the deposite. The supreme court held that the action to recover it would lie against the stakeholder, he not having paid the money to the winner before it was demanded of him. It was well observed by Chief Justice Kent in delivering the opinion of the court, that “the stakeholder ought not to be permitted to hold the money in defiance of both parties. There would be no equity in such a de-fence, and if the plaintiff cannot recover back the depo-site in this case, the winner cannot recover it; for that would be compelling the execution of an illegal contract as if it were legal, and would at once prostrate the law that declares such contracts illegal.”

It is true the decision in that case was reversed in the case of Yeats vs. Foot, (12 John. Rep.) by the court of errors of New York. But there are few lawyers who would consider the decision of a court like that, consisting of politicians fresh from the people, a majority of whom most probably belonged to the political party of the winner, as of any authority when opposed to the unanimous opinion of the supreme court,, composed of such men as Kent and Spencer.

But it is admitted in that case that if a party retract before the uncertain event has happened, he may recover back his deposite. In the case before the court, the event upon which the money was staked had not happened.— Each party had won a heat, and the contest was no more decided than it was before the race began. It matters not what was the motive of the plaintiff, it is enough to know that he refused to go on with the race, and forbid the defendant to pay over the money to Breathitt. Although it is not necessary in this case for the court to go so far as to adopt the principles of the case of Yischer vs. Yates, as decided by the Supreme Court of New York, yet as we believe the sound and true rule is laid down in that case, we choose to put our decision upon its principles. We therefore hold, that where money has been deposited with a mere depository or stakeholder, the plaintiff may recover it at any time before it is paid over. For having received the money to the use of another, the stakeholder cannot in conscience retain it, and no one is entitled to it but the plaintiff. 2 Stark. 120-1. To allow the winner to recover it, would, as has already been said, be compelling the execution of an illegal contract as if it were legal, and would at once prostrate the law that declares such contracts illegal. Much has been said about the principles of honor, which it is thought stand in opposition to the plaintiff’s right. Such arguments can have no weight. We must decide the law, disregarding any fancied notions of honor which may stand in opposition to its settled rules. One of those rules is, that in an illegal transaction money may always be stopped while in transitu to the party entitled under such illegal transaction. Such is the situation of money in the hands of a stakeholder, and it is countermandable at anytime before the payment is made. Wood vs. Wood’s Ex’r. 3 Mur. Rep. 172.

But it is insisted, this action is barred, not having been brought in ninety days after the deposite was made. The act of 1799, ch. 8, sec. 4, has no application to this case. That section of the act gave to the loser of money, or other valuable thing, an action against the winner to recover it back after it had been paid over. Such action could not have been maintained before the passage of that law; and the limitation of ninety days is expressly confined by the act to the action which was then given. But the right of action against the stakeholder existed at common law, and is not affected by that act of assembly either the one way or the other. It relates in terms to the winner, to whom the money or thing may have been paid, and has no reference to the stakeholder with whom the bet has been deposited.

It is objected that the plaintiff demanded from the defendant the whole sum in his hands, and that not being; entitled to the whole, as winner of the race, he cannot recover the amount deposited by himself, on the ground of a disaffirmance of the bet.

The demand of the whole sum staked, included a demand for the amount deposited by the plaintiff; and if he was not entitled to receive the whole, he was not the less entitled to his own deposite because he demanded móre than he had a lawful right to. Moreover, after the decision was made against him by the judges of the race, he forbid the defendant to pay the money to Breathitt, and refused^to proceed with the race. The motive by which he was influenced is not material: it is enough that he put an end to the contract and countermanded his money; he is therefore entitled to recover. The costs were correctly taxed. Affirm the judgment.

Judgment affirmed,  