Sec 729

When money is deposited with a stakeholder, he is not liable in an action for money had and received until the contingency happens upon which the money is payable, unless such contingency be no longer possible, in which case the money is payable to the party depositing it, if not otherwise provided by the agreement under which the deposit is made.4 An auctioneer is thus bound with regard to a deposit received by him at an auction. If the sale is perfected, it goes to make up the purchase money. But if the sale be not perfected, and it is not by the terms of sale applicable to costs, it may be recovered back by the depositor in an action for money had and received.5 If a wager be illegal, either party may claim his deposit before it is paid over,1 even though the party claiming is the losing party to the illegal wager to meet which the money was deposited.2 At common law, where a stakeholder in an illegal wager has paid the deposit to the winner, before notice or demand, the loser cannot recover from the stakeholder;3 though it may be recovered from the winner.4 But in New York if the suit be special under the statute, the loser can recover the deposit from the stakeholder even after the deposit ha3 been paid over to the winner.5 A fortiori he may recover it in the hands of a mere depositary.6 Under the statute 8 & 9 Vict. ch. 109, no suit can be maintained for the recovery of money deposited to abide the result of a wager. And generally money paid on gambling debts cannot be recovered back.7 - In a suit for money had and received against a stakeholder, the court will mould the execution in such a way as to best subserve the equity of the case.8

Stakeholder not liable until contingency occurs.

1 Moore V. Moore, 127 Mass. 22. 2 Infra, sec 785.

3 Donkersley V. Levy, 38 Mich. 54.

4 Supra, sec 593 et seq.; Leake, 2d ed. 116; Brown V. Overbury, 11 Ex. 715; Dines V. Wolfe, L. R. 2 P. C. 280; El-tham V. Kingsman, 1 B. & Ald. 683; Smith V. Briggs, 3 Denio, 73. That the stakeholder cannot set up in defence a payment in violation of his instructions, see Cowling V. Beachum, 7 Moore, 465; Wilkinson V. Godefrey, 9 A. & E. 536.

5 Edwards V. Hodding, 5 Taunt. 815; Duncan V. Cafe, 2 M. & W. 244; Har-ington V. Hoggart, 1 B. & Ad. 586; Spittle V. Lavender. 5 Moore, 270.