STAKEHOLDERS. 



381 



But althougli the contract be illegal or void, yet if the 

 event happens, and the money is paid over by the stake- 

 holder without dispute, there is a oCiiplete execution of 

 the contract, and the money cannot be reclaimed (5'). 



If a person pays his entrance money to the clerk of the 

 course bona fide and without any attempt to impose upon 

 the other subscribers, and then finds his horse disqualified, 

 he may recover his stake if). 



But the owner cannot recover his own stake after the 

 race, if before the race he kneiv that his horse was dis- 

 qualified. Thus where the conditions of a race were that 

 the horses were not to be thorough-bred, nor to have 

 started against thorough-bred horses, nor to have run for a 

 plate, the plaintiff started his mare Funny, and she came in 

 first, but the clerk of the course refused to pay the stakes, as 

 it appeared that under the name of Flashy Moll she had 

 started against thorough-bred horses, run for plates, and had 

 won many races. Upon this the plaintiff brought an action 

 to recover back his own entrance money. However, Mr. 

 Baron Vaughan said to the jury, " It will be for you to 

 say whether the plaintiff has been guilty of an attempt to 

 impose upon the other subscribers to the race by a misrepre- 

 sentation of his mare ; for if so, he will not be entitled to 

 recover back any share of the stake. If the plaintiff knew 

 of the disqualification of his mare the law will not assist him 

 in the recovery of the deposit." A verdict was found for 

 the defendant (r). 



A stakeholder should pay the stakes to the winner or his 

 agent. For where the holder of a ticket in a Derby lottery 

 sold it to the plaintiff before the race, and the horse named 

 in it was ultimately declared the winner, it was held that, 

 even supposing the lottery were legal, the plaintiff could 

 not sue the stakeholder, in an action for money had and 

 received, for the amount to which the holder was by the 

 conditions of the lottery entitled. Because a ticket of 

 this sort could not be negotiable like a promissory note, 

 and parties could not, by agreement among themselves 

 simply, make a transfer of such a ticket, so as to give the 

 assignee a right of action (s). But now, by section 25, sub- 

 section 6 of the Judicature Act, 1873 (36 & 37 Vict. c. 66), 

 the owner of any debt or other chose in action may assign 



Where he 

 money is 

 pnid over 

 ■without 

 dispute. 



Where a 

 horse is 

 disqualified. 



Where owner 

 knows the dis- 

 qualification. 



Proper party 

 to receive the 

 stakes. 



[q) SastcUw v. Jaekson, S B. & C. 

 221 226. 



(r) Welhr v. DeaVms, 2 C. & P. 

 618; Goldsmith y. Martin, i M. & 



G. 5. 



(s) Jones V. Carter, 15 L. J., Q. B. 

 96. 



