396 



RACING, STAKEHOLDERS AND STEWARDS. 



Recovery of 

 money paid 

 on an illegal 

 Contract. 



What the 

 party shoiild 

 do. 



Demand be- 

 fore the 

 money is 

 paid over. 



riglit to maintain an action under that part of tlie section 

 which says no suit shall be brought for recovering money 

 which shall have been deposited in the hands of any person 

 to abide the event on which any wager shall have been 

 made. On that I must observe that in Hampden v. 

 Wahh {e) the Queen's Bench Division appeared to have 

 been of opinion that an action under similar circumstances 

 could be maintained; and in Batty v. 3Iarriott (d), the 

 objection was not taken. Be that as it may, I am of 

 opinion that that objection cannot be maintained. The 

 section amounts to this : All contracts by way of gaming 

 and wagering are null and void ; and then, dealing with 

 those contracts, it says that no action shall be brought 

 with respect to them ; that is to say, all gaming contracts 

 are void, and the winner of the game or wager shall not 

 maintain a suit against his antagonist or the stakeholder. 

 This construction makes one member of the section in 

 unison with the other. What legal right there may be to 

 recover back money paid under a contract that is void, the 

 statute leaves it untouched. The decision of the learned 

 Judge was wrong, and I think that judgment ought to be 

 entered for the plaintiff." 



If two parties enter into an illegal or void contract, and 

 money is paid upon it by one to the other, or to a Stake- 

 holder, it may be recovered back before the execution of 

 the contract, but not afterwards (e) : unless, if paid to a 

 Stakeholder, the Stakeholder has paid it over contrary to 

 notice given to him by one of the parties not to do so (./). 



A person who has staked his money on an illegal or 

 void transaction, and wishes to recover it, should do some 

 act to put an end to the atfair. And he should demand 

 back his deposit before the illegal or void transaction has 

 taken place {g), and the money has reached the other 

 party's hands (/), because if he does not, he permits the 

 Stakeholder to dispose of it (//). 



It was held in the case of Hastelow v. Jaclsoii (/) that 

 where the event in such case has been decided, but before 

 the money has been paid over, and one party expresses his 



(c) L. R., 1 Q. B. D. 189. 



{d) 5 C. B. 818. 



(c) Hastcloiv V. Jackson, 8 B. & C. 

 226 ; and see Mearintj v. IlcUhtgs, 

 14 M. & W. 712 ; Varnetj v. Hick- 

 man, 5 C. B. 281. See also Bone v. 

 Ekless, 5 H. & N. 925. 



(/) Hastelow v. Jackson, 8 B. & 

 C. 226 ; Bone v. Ekless, 5 H. & N. 

 925. 



(9) Martin Y.Heivson, 10 Ex. 737. 



\h) See Gatty v. Field, 9 Q. B. 

 440. 



