Halifax County NcArchives Court.....Hart, Forest V. 1819
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File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 2, 2009, 7:32 pm

Source: Nc Reports
Written: 1819

Forest v. Hart

From Halifax

November Term 1819

A. and B. made a wager on a horse race in 1816. The money was deposited with a 
stakeholder, and, after the race was run, A. demanded of the stakeholder his 
deposit. The stakeholder refused to return the deposit, and A. brought an 
action for money had and received. A. is entitled to recover; for,

The act of 1810, ch. 14, prohibits the creation of any right on the event of a 
horse race, and leaves the parties, as to any remedy, precisely where they 
were if no such agreement had been made.

As long as the money remains in the hands of the stakeholder, it belongs to 
him who has the legal right; and the legal right, which was in the person 
depositing, when the deposit was made, cannot be divested out of him and 
placed in another by the event of an illegal wager.

Whilst the money is in transitu, before it comes to the actual possession of 
the winner, by the direction of the loser to pay it over, after the event, or 
by his omitting to forbid the payment, when he might, if he thought proper, it 
is subject to be reclaimed by the person who made the deposit.

This was an action for money had and received. The Plaintiff and Henry Hunter 
made a wager on a horse race in 1816. The money was deposited in the hands of 
the Defendant as a stakeholder. After the race was run, the Plaintiff demanded 
of the stakeholder a return of his deposit, which was refused, and this suit 
was brought to recover it.

The presiding Judge refused to admit any evidence to shew which of the parties 
won the race, and instructed the Jury, that if the Plaintiff demanded his 
deposit of the stakeholder, after the race was run, and before it was paid 
over to Hunter, he was entitled to recover. The Jury found a verdict for the 
Plaintiff, for the amount of the deposit and interest from the time he 
demanded it of the stakeholder. A rule for a new trial being obtained by the 
Defendant, the same was discharged by the Court, and the Defendant appealed.

Mordecai, in support of the rule.

Henderson, Judge: We must draw the rules by which this case is to be decided, 
from other sources than those of moral justice. They flow entirely from the 
act of Assembly which prohibits the creation of any right on the event of a 
horse race, and leaves the parties, as to any remedy, precisely where they 
were, if no such agreement had been made. And were it not that I am bound down 
by decisions, I should say that all money or other thing paid or delivered on 
any such event is still the property or right of the original owner. For it 
bears no analogy to a gift, where the property cannot be recovered back, 
although there is no consideration but a delivery on a vicious consideration, 
which can give no right. But it is now too late to contend that money can be 
recovered back after it has been actually paid in discharge of an illegal 
wager.

In all the cases where money has been deposited with an agent or stakeholder, 
it has been attempted to retain it or to justify the delivery to the winner, 
upon the ground only of the possession of the stakeholder being the possession 
of the winner, and that there was nothing left for the loser to do: that as 
far as he was trusted, he had done all he had to do: thereby acknowledging the 
general rule, that until paid it was recoverable by the person who made the 
deposit. It appears to me extremely clear that as long as the money remains in 
the hands of the stakeholder, it belongs to him who has the "legal right;" and 
the legal right, which certainly was in the person depositing, when the 
deposit was made, cannot be divested out of him and placed in another by the 
event of an illegal wager. Rights cannot be divested and created by such 
means. The fact is, it was once his, and nothing has taken place which in law 
has divested it. I need not examine authorities to prove these positions; the 
principles are admitted in all the cases, and it is quite possible in some 
they have been misapplied. The case in 7 Term, 535, is badly reported; the 
argument of the counsel and the opinion of the Court do not fit the case 
stated, which is very clearly an action brought by the winner, not the loser, 
either against the party or the stakeholder; for as against either he was 
clearly entitled to recover the 100£, the amount of his deposit, but not the 
300£, the sum alleged to be won; for on what pretence could either the loser 
or stakeholder retain it? I am only surprised that so plain a case should have 
engaged the attention of the reporter. In the case in East, it is taken for 
granted that if the money be not paid to the illegal claimant, it may be 
recovered back; and it was insisted that giving him credit on the books of the 
broker, who effected the illegal insurance, was a paying over, or amounted to 
a payment; and therefore could not be recovered against the broker, who was 
the agent or the stakeholder of both parties. But it was said by the Court 
that it was no payment, and the Plaintiff recovered. That case is much 
stronger than this, by reason of the credit entered on the books of the 
broker. We are well warranted in saying that whilst the money is in transitu, 
before it comes to the actual possession of the winner by the direction of the 
loser to pay it over, after the event, or by his omitting to forbid the 
payment when he might if he thought proper, it is subject to be reclaimed by 
the person who made the deposit. 

The rule for a new trial must be discharged.


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