41G AVAGERS. 



owner, aud on the event of this Race they had made a 

 Wager of 20/. a-side, which each party had deposited with 

 the defendant, a Publican. Previous to the Race, the 

 plaintiff gave Notice to the defendant that he should " break 

 off" the Bet, and he should require back his money. The 

 defendant however did not return it, but paid the whole 

 deposit to the other party after he had walked over the 

 course ; an action was then brought to recover the 20/. 

 which had been deposited by the plaintiff. 



At the trial, it was contended on the part of the de- 

 fendant that, under 8 & 9 Yict. c. 109, s. 18, the action 

 was not maintainable. But the learned Judge overruled 

 the objection, and held that the Statute was not meant to 

 apply to a case like the present, in which the party de- 

 positing the money had given Notice to the Stakeholder to 

 pay him it back before the time had arrived for the Wager 

 to be decided. And the Jmy, on the evidence, found a 

 verdict for the plaintiff (A). 

 Decision of A rule uini for a new trial, on the ground of misdirec- 



the Court of f [gn, was afterwards obtained in the Court of Common 

 Pleas. Pleas, and in discharging the rule Mr. Justice Maule said : 



— " Looking at the whole section (/), critically and gram- 

 matically, I am of opinion that it does not apply to any 

 action like this, where a party seeks to recover his deposit 

 from a Stakeholder upon a repudiation of the Wager. 

 This cannot be considered as an action brought for re- 

 covering a sum of money alleged to be won upon a 

 Wager ; nor do I think it is an action brought to recover a 

 sum deposited in the hands of the defendant to abide the 

 event of a Wager. That must necessarily mean an action 

 to be sustained on the ground of the existence and the 

 determination of the Wager. Here the money is not 

 claimed on that ground. Quite the reverse. The plaintiff 

 insists that the sum he seeks to recover is money which 

 belongs to him, and which the defendant has no right to 

 keep, and which he is under no legal or moral obligation 

 to pay to anybody else. As soon as the defendant received 

 Notice from the plaintiff that he declined to abide by the 

 Wager, the money ceased to be money dej)osited in the 

 hands of the former to abide the event, and became money 

 of the plaintiff's in his hands, without any good reason for 

 detaining it. PTpon these grounds I think this point 



{h) Varney v. Hichnan, Nov. 30, (/) 8 & 9 Vict. c. 109, s. 18, 



1846; 5 C. B. 281. Appendix. 



