But as actions on wagers of any kind were never favoured by the courts, they have at times gone so far as to hold all wagers to be invalid: Lewis v. Little-field, 15 Me. 233; Collamer v. Day, 2 Vt. 144; Edgell v. M'Laughlin, 6 Whart. 179t; Thomas v. Cronise, 16 Ohio, 54; Hoit v. Hodge, 6 N. H. 104; Rice v. Gist, 1 Strob. 82; and in many of the States statutory provisions exist, forbidding wagering or gaming contracts, to a greater or less extent: Wheeler v. Spencer, 15 Conn. 28; Fowler v. Van Surdam, 1 Den. 557; Faris v. Kirtley, 5 Dana, 460.

Where a wager is invalid from any of the above causes, so long as the money remains in the hands of the stakeholder, it is considered as being still within the control of the parties, and the loser may maintain an action to recover his stake: M'Allister v. Hoffman, 16 S. & R. 148: McAllister v. Gallaher, 3 P. & W. 468; Tarleton v. Baker, 18 Vt. 9; although if the money have been actually and bond fide paid over by the stakeholder to the winner, no part of it can be recovered from the latter by the loser, for the case then comes within the maxim, in pari delicto potior est conditio defendentis: McAllister v. Hoffman, supra; Speise v. M'Coy, 6 W. & S. 485; Danforth v. Evans, 16 Vt. 538; Machir v. Moore, 2 Gratt. 257; M'Hatton v. Bates, 4 Blackf. 63; Thomas v. Cronise, 16 Ohio, 54; but if the stakholder should pay over the money to the winner, after notice from the loser not to do so, he would pay at his own risk, and being in the position of a mere agent whose authority has been revoked, he would be liable to the loser for the amount of his stake: Wheeler v. Spencer, supra; Ivey v. Phifer, 11 Ala. 535; Stacy v. Foss, 19 Me. 335; Perkins v. Hyde, 6 Yerg. 288. The law was so held in New York in Vischer v. Yates, 11 Johns. 23; but that decision was overruled by Yates v. Foot, 12 lb. 1; and although the Revised Statutes give a remedy against a stakeholder who pays over to the winner after notice from the loser, yet the courts apply the rule of Yates v. Foot, in cases not brought exactly within the statute as to form, time, etc.: Brush v. Keeler, 5 Wend. 250; Fowler v. Van Surdam, 1 Den. 557.

For examples of contracts held void under 8 & 9 Vict., c. 109, s. 18, as being by way of gaming and wagering, you may refer to Grizewood v. Blane (r), Rourke v. Short (s), and Hampden v. Walsh (t). *The first of these cases shows that a colourable contract for the sale and purchase of railway shares where neither party intends to deliver or to accept the shares, but merely to pay "differences " according to the rise or fall of the market is gaming within the last-mentioned enactment (u). In Rourke v. Short,

{q) Beeston v. Beeston, 1 Ex. D. 13: 45 L. J. (Q. B., etc.) 230.

(r) 11 C. B. (73 E. C. L. E.) 538.

(s) 5 E. & B. (85 E. C. L. E.) 904; 25 L. J. (Q. B.) 196.

(t) 1 Q. B. D. 189; 45 L. J. (Q. B., etc.) 238. See also the recent cases of Batson v. Newman, 1 C. P. D. 573; Higginson v. Simpson, 2 C. P. D. 76, 46 L. J. (Q. B., etc.) 192, for other examples of contracts held void as being for gaming or wagering.

(u) But if a man employ a broker to speculate for him on the Stock Exchange, though it is not intended between the employer and the broker that the stock bought or sold should be accepted or delivered, but that the employer should only pay the differences, this is not void as a gaming transaction so as to preclude the broker from suing his employer for commission, or for an indemnity in respect of the contracts on which the broker has incurred a personal liability to third persons. Thacker p. Hardy, 4 Q. B. D. 685; 48 L. J. (Q. B., etc.) 289; Ex parte Rogers, In re Eogers, 15 Ch. Div. 207.

The student will find most of these, as well as many other authorities upon the subject of wagers and of wagering policies, in the note to Godsall v. Boldero, 2 Smith's L. C. 293.-R.

A bet on an election is void at common law: Like v. Thompson, 9 Barb. 315: See also Bettis v. Reynolds, 12 Ired. 344; Terrall v. Adams, 23 Miss. 570; Bates v. Lancaster, 10 Humph. 134; Bevil v. Hix, 12 B. Mon. 140. [Lockhart v. Hullinger, 2 111. App. 465.]

As to wagers generally, see Smith v. Brown, 3 Tex. 360; Humphreys v. Magee, 13 Mo. 435; McElroy v. Carmichael, 6 Tex. 454; Parsons v. The State, 2 Ind. 499. A contract to purchase shares of stock without the intention to deliver or receive them, is a gaming contract: Brua's Appeal, 55 Pa. St. 294; Ex parte Young, 6 Biss. 53. Contracts for the future sale and delivery of goods not in the possession of the vendor are not illegal: Shipp v. Bowen, 25 Ind. 44; Mcllvaine v. Egerton, 2 Rob. 422.-s.

19 289 plaintiff and defendant, while conversing as to some rags which plaintiff proposed to sell and defendant to purchase, disputed as to the price of a former lot of rags, plaintiff asserting the price to have been lower than defendant asserted it to have been. They agreed that the question should be referred to M., a spirit merchant, and that whichever party was wrong should pay M. for a gallon of brandy, and that, if plaintiff was right, the price of the lot now on sale should be 6s. per cwt., but if the defendant was right 3s. M. decided that plaintiff was right. The latter sent the rags to defendant, but defendant refused to accept them at 6s., offering 5s. The Court held, that the contract was by way of wagering and could not be *upheld. In Hampden v. Walsh, the plaintiff, who disbelieved in the convexity of the earth, and a Mr. Wallace, deposited each 500 with defendant, on an agreement that if Wallace, on or before the 15th of March, 1870, proved the convexity or curvature to and fro of the surface of any canal, river, or lake, by actual measurement and demonstration, to the satisfaction of defendant, Wallace should receive the two sums deposited; but if Wallace failed in doing this, the two sums were to be paid to the plaintiff. The agreement was held to be a mere wager.

It is clear, under s. 18, that the lawfulness of any game at which any wager is made, does not make the wager lawful, in the sense of being recoverable in an action (x): but if a party loses a wager, and requests another to pay it for him, the loser is liable to the party so paying it for money paid at his request (y). And where the plaintiff had paid the defendant money on the terms that the defendant was to employ it in betting on certain horse-races, and to pay the plaintiff a certain proportion of the winnings, and the defendant did so bet and won, and gave a cheque to the plaintiff for his share of the winnings, it was held that the plaintiff could sue the defendant on the cheque, which was dishonoured, and on accounts stated *the defendant having received moneys for which he had agreed to account, and was therefore bound to do so (z). But it has been held also, that the amount of a bet lost at a horse-race, and paid by the loser into the hands of a third party, on the promise of the latter to pay it to the winner, cannot be recovered by the winner out of the assets of such third person, if deceased (a).