Fisher v. Hildreth

Colt, J. Under the instructions here given, the jury must have found that the money deposited upon an election bet with the defendant as stakeholder, had been paid over to the supposed winner without the consent or permission of the plaintiff, and after the defendant had been directed by the plaintiff not to pay it over. There was evidence sufficient to justify this finding, and it is enough to support the verdict. A stakeholder is a mere depositary for both parties of the money advanced by them respectively with a naked authority to deliver it over upon the proposed contingency. He is not regarded as a party to the illegal contract. Upon the revocation of the authority the money remains in his hands as a naked deposit to the use of the parties depositing it. He cannot avoid his responsibility to the loser by afterwards paying the whole of it to the winner. Ball v. Gilbert, 12 Met. 397. In McKee v. Manice, 11 Cush. 357, it was held that' after such revocation, if the winner takes the money with knowledge of the fact, the other party may recover it back from him in an action for money had [563] and received. While' if the money has been paid ever with the consent of the loser it cannot afterwards be recovered, because the contract is then executed, and the parties are in pari delicto. So long as it remains executory it is clearly revocable. In view of the law laid down in these cases, the instructions asked for were properly refused. It cannot be ruled as matter of law that revocation of the authority to pay the winner is not a rescission of the bet. It is so practically, and if once revoked the purpose with which it is done is immaterial. The instructions given were sufficient for the case, and rendered the fourth, fifth and sixth instructions asked unnecessary. Exceptions overruled.