1 If a stake-holder in a presidential election bet pays over the money after forbidden so to do, an action will lie against him for the money, and it is immaterial that the reason for forbidding payment was that a question arose whether the wager was put an end to by the death of the presidential candidate after the election. Fisher v. Hildreth, 117 Mass. 558.

The Statute 8 & 9 Vict. ch. 109, § 18, makes all wagers, or contracts or agreements by the way of gaming or wagering, null and void, and provides that no suit shall be maintained for the recovery of anything deposited to abide the event of any wager.1 Many of the courts of this country have viewed wagers as entitled to no fore his death had received sums of money, which he held as stake-holder for others, to abide the result of races, upon the event of which bets had been made by other persons. The testator had also placed about £6,000 in the hands of other parties, which by them had been deposited in a bank, to abide the result of a bet made by himself (but which failed by his death). In the administration of the estate the administratrix had paid £2,849 to persons who had paid these sums to the testator; the fact being, that part of the money was in respect of wagers which were decided before the testator's death, and part in respect of bets not decided at that time. Nothing had been done as to the £6,000 in the hands of the stake-holders. Held, that the payments made by the testatrix in respect of the wagers decided in the testator's lifetime could not be allowed against the estate; but that those made in respect of wagers not so decided were good payments, those undecided wagers being illegal contracts which either party might determine, and which she by paying most be taken to have determined. Held, also, that the testatrix was not to be charged with the £6,000 in the hands of the stakeholders upon the bets made by the testator, because it, having been paid into the hands of the stake-holders, was not at any subsequent moment of his existence in his power of possession, he never having elected to withdraw from the bet favor; (e) but where they are in any degree legal contracts, they would doubtless be governed by the rules above stated.

(z) Perkins v. Eaton, 8 N. H. 152; Howsen v. Hancock, 8 T. R. 575; M'Cullum v. Gourlev, 8 Johns. 147; Livingston v. Wootan, 1 Nott & McC. 178.

(a) Ruckman v. Pitcher, 1 Comst. 392. And see Sutphin v. Crozer, 1 Vroom, 257.

(b) See Morgan v. Graff, 4 Barb. 528; Like v. Thompson, 9 Barb. 815.

(c) Ruckman v. Pitcher, 20 N. Y. (6 Smith) 9.

(d) Duncan v. Cafe, 2M. & W. 244.

1 Hampden v. Walsh, 1 Q. B. D. 189, decided, on the authority of Varney v. Hickman, 5 C. B. 271; Martin v. Hewson, 10 Exch. 737; and Graham v. Thompson, I. R. 2 C. L. 64, that the St. 3 & 9 Vict c. 109, § 18, did not apply to the recovery by a depositor of a sum so deposited if demanded by him before it was paid over. See also Trimble v. Hill, 5 App. Cas. 342.

An auctioneer is often made a stake-holder; and where he receives a deposit from a purchaser, to be paid over to the seller, if a good title to the property be made out, and in default thereof to be returned to the purchaser, he cannot return it to the purchaser on his demand, without such default. But on default, or a rescinding or abandonment of the contract, the auctioneer is bound to return it to the purchaser on his demand; and if he have paid it to the owner of the property, he has done so in his own wrong, and must refund it to the depositor. (f) If one deposits money in the hands of a stake-holder, to be paid to a creditor when his claim against the depositor shall be ascertained, and the stakeholder pays this money to the creditor on his giving an indemnity, before the claim is ascertained, without the assent of the depositor, it is said that such depositor may maintain an action against the stake-holder for money had and received, without any reference to the demand * of the creditor. (g) But if the check of the depositor be given to the stake-holder, the mere fact that he cashes it and holds the money is not such wrong-doing as makes him liable to be sued for the amount. (h) A stake-holder who cashes a check left with him, if the parties agree to regard it as money, is guilty of a breach of duty. (i)

(e) Perkins v. Eaton, 3 N. H. 152; Bunn v. Ricker, 4 Johns. 426; McAllister v. Hoffman, 16 S. & R. 147 ; McAllister v. Gallaher, 8 Penn. 468; Wheeler v. Spencer, 15 Conn. 28.

(f) Edwards v. Hodding, 5 Taunt 815. In Duncan v. Cafe, 2 M. & W. 244, the plaintiff having deposited a sum with the auctioneer, until a good title was made out, was allowed to recover the deposit, without notice to the auctioneer that the contract had been rescinded by the parties. And see, to the same effect, Gray v. Gutteridge, 1 Man. & R. 614.

(g) Cowling v. Beachum, 7 J. B. Moore, 465. In this case the plaintiff had employed one Langdon, an auctioneer, to sell an estate, and disputed the sum charged by him for his expenses; whereupon it was agreed that the amount should be deposited with the defendant, until it should be ascertained whether the auctioneer was entitled to the whole of his demand or not. The defendant having paid over the amount so deposited to the auctioneer on receiving his indemnity, without the knowledge or concurrence of the plaintiff, it was held, that the latter was entitled to recover it back in an action for money had and received. And, per Burrough, J., "The sum in question was deposited by the plaintiff with the defendant for an express purpose; it should, therefore, have remained in his hands until it was ascertained to what remuneration Langdon was entitled for selling the estate in question. The payment of it by him to Langdon, on his indemnity, was a wrongful act, and a breach of the trust reposed in the defendant by the plaintiff, and for which the sum in question was deposited in his hands, and which he cannot now possibly comply with, in consequence of his own act."

(h) Wilkinson v. Godefroy, 9 A. & E. 536.

(i) Wilkinson v. Godefroy, 9 A. & E. 536.