
    PABST BREWING COMPANY v. PAT LISTON.
    
    July 19. 1900.
    Nos. 11,905 — (6).
    Election Bet — Payment by Stakeholder after Notice.
    It is the universal rule in this country that a stakeholder who pays over money bet upon an election, after notification not to do so, pays at his peril, and an action against him for the money can be maintained by the party giving such notice.
    Notice to Stakeholder.
    In the case at bar it was held that the notice given by one of the parties the day after the election, but before the money was paid over, was sufficient to arrest it in the hands of the stakeholder, and amounted to a repudiation of the wager.
    Garnishment against Stakeholder — Demand.
    After the amount in controversy was paid over to the winner, an action as for money had and received would lie against the stakeholder, at the instance of the party giving the notice, without prior demand for repayment. Meld, that proceedings in garnishment could be maintained against such stakeholder after he had parted with the money, in disregard of the notice not to pay.
    Action in the district court for St. Louis county against Pat Liston, defendant, and L. W. Eolleston, garnishee. The garnishee having made disclosure denying indebtedness, plaintiff filed a supplemental complaint, and F. L. Murray intervened. The testimony was taken before a referee, and on his report the court,' Cant, J., found in favor of plaintiff and against the garnishee. From an order denying a motion for a new trial, the garnishee appealed.
    Affirmed.
    
      
      Francis W. Sullivan, for appellant.
    
      Wmdom & McMahon, for respondent.
    
      
       Reported in 83 N. W. 448.
    
   COLLINS, X

November 2,1896, defendant, Liston, and tbe intervenor, Murray, made a wager upon the result of tbe congressional election to be held in tbe sixth congressional district of Minnesota upon tbe following day, November 8, by each putting into tbe bands of a stakeholder, Eolleston, tbe garnishee, tbe sum of four hundred dollars, to be paid to tbe winning party when tbe result of tbe election was determined. Subsequently this plaintiff sued Liston to recover something over six hundred dollars, and caused a garnishee summons to be served upon Eolleston. Liston lost tbe wager. Tbe court found from tbe evidence as follows:

“That after said election, and while said money, and all thereof, was in tbe bands of said Eolleston, garnished, said defendant, Liston, notified said Eolleston not to pay tbe same to said Murray; that said notice has never been modified or withdrawn; that, notwithstanding said notice, said Eolleston did thereafter, and on No- . vember 5, 1896, pay over to said Murray tbe entire stake money so deposited with him; that said Liston never requested said Eolleston to return to him any part of tbe funds placed by said Liston in said Eolleston’s bands on said wager.”

Tbe court, as a conclusion of law, found that tbe plaintiff was entitled to judgment against Eolleston as garnishee for tbe amount of four hundred dollars so placed in tbe latter’s bands by Liston, with interest.

Counsel for tbe garnishee questions tbe sufficiency of tbe evidence to sustain this finding, but from an examination thereof it is very evident that it warranted a finding that before Eolleston turned over tbe money to Murray be was notified by Liston not to pay it over to anybody until be was advised so to do by Liston himself. In fact, tbe parties do not differ particularly as to what was said at one interview after tbe election, — before tbe money was paid over, and consequently before tbe garnishee summons was served, — but they do differ as to whether Eolleston was notified a second time before such service. Whether be was or was not is not important, for one notification was sufficient; a second was superfluous.

A wager of money is illegal and invalid, as against good morals and sound public policy. Wilkinson v. Tousley, 16 Minn. 263 (299). And as early as 1852, it was field in tfie then territory of Minnesota tfiat all wagers on tfie event of an election were illegal and void. Cooper v. Brewster, 1 Minn. 73 (94). Money so wagered may be recovered by tfie loser of tfie stakeholder, if tfie latter has been notified by tfie former not to pay it over to tfie winner, and repayment to tfie loser has been demanded. Wilkinson v. Tousley, supra. It is tfie universal rule in this country tfiat a stakeholder who pays over money bet upon an election, after notification not to do so by one of tfie parties, pays at fiis peril, and, if after such notice tfie stakeholder disregards it, an action will lie against him for tfie money. In this particular case tfie notification given before Rolleston turned tfie entire sum over to Murray was sufficient to arrest tfie money in fiis hands, and it amounted to a repudiation and revocation of tfie wager, rendering tfie stakeholder liable if fie paid tfie money to any one but Liston. Tfie four hundred dollars remained a naked deposit in Rolleston’s hands, for which an action would lie as for money fiad and received. This follows from tfie fact tfiat tfie wagering contract was illegal and invalid, capable of repudiation by either party.

Tfie question next arises as to tfie right of tfie plaintiff to garnish this money. If it had remained in tfie hands of Rolleston, and had been in fiis hands when tfie summons was served, there would be no question at all as to tfie right of tfie plaintiff to attach and seize tfie same by means of tfie garnishee process; for tfie amount deposited and due would have been nothing but an ordinary debt, and therefore liable to garnishment. But counsel for tfie garnishee contends tfiat an action brought by Liston against Rolleston would have sounded in tort, tfiat it could not have been maintained without prior demand, and therefore tfiat garnishee process cannot reach it. But it is to be noticed that no demand would have been necessary as a preliminary to an action by Liston at the time Rolleston was warned by tfie service of tfie garnishee summons, for fie had already disregarded tfie notice, and had parted with tfie money. A demand upon bim by Liston would have been useless. It was therefore unnecessary, and for that reason the liability of Rolleston, which was an indebtedness as for money had and received, was subject to garnishment. Liston could have waived the tort, if his claim against Rolleston was in tort, and could have maintained assumpsit. In such cases there “is no reason apparent why such money may not be secured by garnishment in states where the tort may be waived, and the money recovered by an action of indebitatus assumpsit.” 2 Shinn, Attachm. §§ 482, 517b. Rolleston denied all liability on account of the money when he made disclosure, November 30,1896. The money was then due and payable to the plaintiff, and from that day interest accrued upon it at the legal rate.

Order affirmed.  