| N.C. | May 5, 1819
The Judge before whom this case was tried, charged the Jury, that it was necessary for the Plaintiff to prove only, that the stakeholder was forbidden to pay over the money to Causey, and that the Plaintiff demanded his deposit; that as to the *135 fairness or unfairness of the race it was entirely immaterial. The Jury found a verdict for the Plaintiff, and a rule for a new trial was obtained upon the ground of misdirection by the Court. This rule being discharged, the Defendant appealed to this Court. This action was brought to recover the amount of a sum betted on a horse race, and deposited with the Defendant's testator as a stakeholder. The sum was paid over by him to the supposed winner of the race, after notice from the Plaintiff not to do so: and the contract being illegal under the act of 1810, the question is, Ought the Plaintiff to recover? Where money has been paid on an illegal transaction in which both parties are equally criminal, it cannot be recovered back; for there is no reason why he who parted with his money freely, should have it again. Volenti non fit injuria; and the law in such cases esteems the condition of the Defendant, the most eligible, not on account of any superior merit he has to the plaintiff, but because the latter cannot build his claim on a moral foundation. This principle is distinctly recognized in many cases, and recently in Hauser v. Hancock, 8 Term, 575, and Edgar v. Fowler, 3 East., 222. And the first case, also proves, that where money, deposited on an illegal wager, has been paid over to the winner by the consent (176) of the loser the latter cannot afterwards maintain an action against the former, to recover back his deposit. But the law is different where the action is brought against a stakeholder who has the money still in his possession, or has paid it over after notice not to do so. The distinction is taken in Cotton v. Thurland, 5 Term, 405, where the Plaintiff was permitted to recover a stake deposited by him on the event of a boxing match; and the latter case does not stand unsupported, for its authority has been admitted and confirmed in a recent case of Smith v. Bickmore, 4 Taunt., 477; which was an action brought by a person who deposited in the hands of a stakeholder, a sum of money, as a wager on the event of a boxing-match, between himself and another; and he was allowed to recover the same from the stakeholder, having demanded it before it was paid over. In that case, Sir James Mansfield observes, "The law is got into sad confusion by contradictory decisions respecting illegal contracts. But this case seems made for the express purpose of confirmingCotton v. Thurland. In that case, there was a doubt about the event, exactly as in this case; and the *136 Court thought the money might be recovered against the stakeholder. Now this is a case, not of an action against one of the parties to the wager, but against a stakeholder; therefore it is different from the cases of actions against underwriters to recover back premiums paid on illegal contracts. Whatever may be the illegality of the contract, the stakeholder is no party to it, and as long as the money remains in the hands, he ought to be accountable to some one for it; there can be no justice in his claim of detaining it. The question between a party and the stakeholder, is susceptible of views and considerations, which do not attach to it between the parties themselves. To both of the latter the law refuses its aid, on principles of public (177) policy. It cannot uphold the winner, for that were to enforce a void contract, and repeal an act of Assembly: It will not assist the loser against him, because he has voluntarily parted with his money: And, as both parties have violated the law, it will not trouble itself to alter the condition in which they have placed themselves. A stakeholder received the deposit to be paid over to the winner, and the authority given him, is countermandable at any time before the payment is made. The money may be stopped in transitu to the person entitled to receive it. 3 East., 225. The Court think the Jury were properly instructed.
No Error.
Cited: Bridges v. McNeil,