#### BARRETT v. NEILL.

Stakeholder — horseracing—recovering back stake.

Where property bet upon a contemplated horse race is placed in the hands of a stakeholder* and the parties abandon the race, the stakeholder cannot retain the property, and defend . himself under the act against gaming.

The gaming act allows loosers on horse races to recover back the loss, but does not make horse racing unlawful, and to refuse the party abandoning the race to recover back his deposite, would induce the running, that he might recover from the wiuner.

The time of the court should not be taken up in trying which dog or man wins a battle or a race.

Barrett agreed with one Wheeler to bet a note he held on a third person, against a clock, upon a horse race. The note endorsed, and the clock, were delivered to Neill, as a stakeholder, to deliver to the winner. Barrett and Wheeler afterwards agreed not to run, and to withdraw the bet. The defendant, without authority, had cashed the note, and on being notified of the abandonment of the bet, refused to deliver the note or the cash, and the plaintiff brought suit. On the trial in the Common Pleas, the plaintiff offered evidence of these facts, which being objected to, was ruled out by the court, and judgment as of non suit rendered. To reverse which judgment, this writ of error is brought.

*473/S'. *W. Culbertson*and *Flood,*for the plaintiff,

in error, cited 29 *O. L.*442; 3 *Stark. Ev.*1659; 8 /. *R.*167; 10 *J. R.*468; 11 *J. R.*23; 12 *J. R.*1; and contended that the deposit in the hands of the stakeholder gave him no legal interest in the note, or right to retain the proceeds, and the Common Pleas, in refusing to hear the evidence, because the deposit was upon a bet, were governed by an *excess of morality.*They thought, with Burns, that ‘judges must not be *rigidly righteous*or *unco good.’’*

*G-oddard*and *Convers,*contra,

insisted, that whether courts would listen to such evidence or refuse, was in the *discretion*of the judges, not dependent upon any strict rule of law. Therefore this matter cannot be reversed on error,'because the discretion of the Common Pleas was not that of this court. If otherwise, however, the contract here was illegal, and cannot be enforced. 1 *Car. Sf*Payne, 613; 3 *Car. $ Pay.*376; 1 *HalPs N. Y. S. C. R.*300.

Wood,.!.

We have no law prohibiting the running of horses, or horse racing. Our statute makes void all agreements where any part of the consideration is for a horse race, or for money, or other thing lost or won, laid, staked or betted, upon a horse race, or for money *borrowed*to *bet,*and authorizes the loser, and if he neglect, any other person, to sue for and recover the loss. We think with *C. J. Abbott,*1 *Car. Sf P.*613, that the time of the court is not to be taken up in trying which dog or man wins a battle of a race. But this case does not involve that inquiry. No race has been run. An improper agreement was made to run, and the parties becoming satisfied of its impropriety, abandoned it. It seems to us such agreements ought all to be abandoned, not kept, and it would be iniquitous to' allow a depositary, under such circumstances, to plunder the repenting and retracting parties. Our statute expressly authorizes the loser to sue for and recover back the loss. 29 *O. L.*443. Will you then say there shall be no rescisión of the contract, drive on the race, and give an action, when you will not allow a recovery before? The late case in England, 3 *Car. Sf Payne*371, to1 be sure, holds that •you can recover, if the event bet upon does not happen. The judgment is reversed.