Alexander v. Mount

Per Curiam. Suit to recover from the stakeholder money bet upon an election. Answer, that it had not been demanded before suit. As the suit was commenced before a justice of the peace, no reply was necessary to form an issue for trial. 2 R. S. p„. 458, § 37. There was judgment for the defendant. It is held in New York that a party to a bet cannot re [162] cover from the stakeholder the amount staked, unless he notify him not to pay it over before the contingency has happened on which its payment depended. Fowler v. Van Surdam, 1 Denio, 557. But the great weight of authority is, that it may be recovered if the stakeholder be so notified at any time before he has paid over the amount. See the cases collected in Smith on Cont., Rawle’s Ed., top p. 257. See, also, McHatton v. Bates, 4 Blackf. 63. N. Trusler and G. Trusler, for the appellant (1). S. Heron, for the appellee (2). But the question remains, whether the money must not have been actually demanded by the plaintiff before he instituted his suit, in order to enable him to maintain it. A notice not to pay it to the winner, might not amount to a demand to repay it to the depositor. And, generally, a bailee cannot be sued till after demand, unless he has wrongfully-converted the thing bailed. McGillicuddy v. Cook, 5 Blackf. 179.—Underwood v. Tatham, 1 Ind. R. 276.—Hanna v. Phelps, 7 id. 21.—Cox v. Reynolds, id. 257.—5 id. 146, 220. But where, as is shown in this case, the stakeholder had paid over the money after the countermanding notice and before suit, a demand would be excused. The judgment is reversed with costs. Cause remanded, &c.