400 



RACING, STAKEHOLDERS AND STEWARDS. 



How he may 

 waive liis 

 Claim. 



Where a 

 Stakeholder 

 may recover 

 from the 

 Wioner. 



Money in the 

 hand of 

 Stakeholder 

 does not pass 

 as ' ' his 

 moneys" 

 nndcr the 

 Depositor's 

 will. 



posited the amount of his Stake with the defendant. The 

 Race was run and the plaintiff's Horse was beaten ; but 

 he afterwards discovered that the whole transaction was a 

 concocted fraud. After Notice had been given not to pay 

 over the amount, an action was brought to recover the 

 Stakes, and it was held by the Court of Exchequer, that 

 the written instrument, although unstamped, was properly 

 admitted in evidence in proof of the fraud {//). 



But if a person once affirms the contract by claiming 

 the Stake, he cannot afterwards turn round and claim a 

 return of his money on the ground of the agreement being 

 void by reason of fraud (;:) . 



Where, however, the Stakes have been paid over to a 

 fraudulent winner, they may even then be recovered from 

 him in an action by the Stakeholder. Thus a Bitch called 

 Emily Deans was entered for the " Great Open Puppy 

 Stakes" in Northumberland. The Stakes were run for 

 and a Bitch described as Emily Deans Avon them, and the 

 money was paid over by the Secretary to the defendant. 

 It was subsequently ascertained that the Bitch which had 

 run was not Emily Deans, but one called Miami. An 

 action was brought by the Secretary, who was also Stake- 

 holder, to recover the Stakes from the defendant. It was 

 submitted by the counsel for the defendant that the plain- 

 tiff was not the proper person to bring the action, and also 

 that Miami being in every way qualified in point of age to 

 run for the Stakes, there was no fraud committed. But 

 Mr. Baron Martin was of opinion that Emily Deans being 

 the animal entered for the match, the defendant had no 

 more right to substitute another Dog in her place, than a 

 person entering a Hunter for a Sweepstakes, had to run a 

 Racehorse instead. A verdict was found for the plaintiff, 

 and a rule for a new trial was refused by the Court (a). 



A sum of money deposited with Stakeholders, to abide 

 the result of a Wager, which sum was repaid by them on 

 the death of the party depositing to the Administratrix, does 

 not pass under the words " I give all 7nt/ moneys, house- 

 hold furniture, &c., &c.," because this sum of money being 

 in the hands of Stakeholders, could not be said, after being 

 so deposited, to have been in the possession or power of the 

 Testator at any subsequent moment of his existence {b). 



{y) Holmes v. Sixsmiih, 7 Ex. 

 802. 



{z) See per Pollock, C. B., Holmes 

 V. Sixsmiih, 7 Ex. 808. 



((?) Emerson v. Dickson, before 

 Mr. Baron Martin, Durham Spr. 

 Ass. March 4, 1853. 



(i) Manning \.Furcell,2i L.T.317. 



