Opinion
May Term, 1819.
From Halifax.
A. and B. made a wager on a horse 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 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 entitled to recover. The Jury found a (459) verdict for the Plaintiff, for the amount of the deposit and interest from the time he demanded it of the stakeholder. A 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.
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 I 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 had 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 right;" and 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. Rights cannot be divested and created by such means. The fact is, it was once his, (462) 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 in some they have been misapplied. The case in 7 Term, 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, either against the party or the stakeholder; for as against either he was clearly entitled to recover the 100 l. the amount of his deposit, but not the 300 l. the sum alleged to be won; 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; and therefore could not be recovered against the broker, who was the agent or the stakeholder of both parties. But it was said by the Court that it was no payment, and the Plaintiff recovered. That case is much (463) 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 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. The rule for a new trial must be discharged.
This was an action of assumpsit on an agreement made on 14 January, 1797, by which the Defendant, in consideration that the Plaintiff had paid him 100 l. agreed to pay him 300 l. "if articles forming the basis of a peace, and signed by some official characters, by which hostilities would cease and would not recommence, were not settled between England and France on or before 14 September, 1797." The declaration also contained the common money counts. On the trial at Westminster Sittings before Lord Kenyon, Ch. J. it was 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 100 l. 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, 405.
Cited: Bridgers v. McNeil, 51 N.C. 313.