380 



RACING, STAKEHOLDERS AND STEWARDS. 



Demand 

 before the 

 money is 

 paid over. 



Bringing an 

 action not 

 sufficient. 



back his deposit before the illegal or void transaction has 

 taken place («'), and the money has reached the other party's 

 hands {j), because, if he does not, he permits the stakeholder 

 to dispose of it {k). 



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

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

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

 dissent from the payment, he may recover it from the 

 stakeholder. For although the event has happened, yet 

 the contract is not completely executed until the money 

 has been paid over, and therefore the party may retract at 

 any time before that has been done. Som.e doubt, in- 

 deed, has been thrown upon this case, Mr. Baron Alderson, 

 in Mearing v. Hel lings (m), saying of it, " I accede to its 

 authority, though I think it a very strong decision. It 

 does not convince me. It overcomes me." And Pollock, 

 C.B., in the same case, said : " With respect to the case of 

 Hastelow v. Jackson, I forbear saying anything about it at 

 present ; it is binding upon us until reviewed by a Court of 

 Error. If the same question arose before me, I should 

 certainly advise a bill of exceptions." And, in the case of 

 M'Ehvaine v. Mercer (n), Hastelow v. Jackson was held by 

 the Irish Court of Common Pleas to be irreconcilable with 

 the law as established by 8 & 9 Vict. c. 109, s. 18. But 

 it has never been expressly overruled, and indeed with 

 these exceptions it has been treated uniformly, both from 

 the Bench and by text-writers, as an authority (o). 



If it be pleaded to an action, for money had and received, 

 that the money was staked on an illegal game, the plaintiff 

 must show in answer that he demanded back the stake 

 before it was paid over, the mere bringing an action before 

 payment over not being a sufficient demand {p). 



(() Martin v. Seieson, 10 Ex. 737. 



(j) Hastelow v. Jackson, S B. & C. 



221, 226 ; Bone v. Ekless, 5 H. & N. 



112.3. 



(A) See Gattij y. Field, 9 Q. B. 440. 



(l) Hastelow v. Jackson, 8 B. & C. 

 22i, 227. And see Hampden v. TValsh, 

 1 Q. B. D. 189; 45 L. J., Q. B. 

 238; 33 L. T., N. S. 852; 24 W. 

 E. 607 ; Difjgle T. Higgs, 2 Ex. D. 

 422 ; 46 L. J., Ex. 721 ; 37 L. T., 

 N. S. 27; 25 W. E. 777— C. A. 



(m) Mearing v. Hellings, 14 M. & 

 W. 712. 



()i) M'Ulwaine v. Mercer, 9 Ir. 

 C. L. E. 13. The judgment in this 



case appears to be founded upon a 

 misconception of the principle which 

 rules the English decisions and of 

 the facts in the case of Hastelow t. 

 Jackson. 



(o) Per BramweU, B., £one t. 

 miess, 5 H. & N. 928. Per Cock- 

 burn, C.J., Hampden v. Walsh, 1 

 Q. B. D. 193; 45 L. J., Q. B. 238; 

 33 L. T., N. S. 852 ; 24 W. E. 607 ; 

 Diggle v. Higgs, 2 Ex. D. 422 ; 46 

 L. J.,Ex. 721; 37 L. T., N. S. 27; 

 26 W. E. 777— C. A. See also 

 Selw. N. P. 12th ed. p. 97, and 2 Sm. 

 L. C. 9th ed. p. .573. 



(;;) Gattg v. Field, 9 Q. B. 431. 



