In general, wagers were not regarded by the English courts as illegal or unenforceable at common law.1 Some American courts have taken the same view.2 As a result, however, of the steady growth of public sentiment against gambling, wagers are now void by statute in England,3 and illegal, either by statute or judicial decision, in most American States.4 In many jurisdictions the statute permits the recovery of money from the stakeholder 5 or the winner;6 and even in the absence of a statute it is generally held that so long as the money remains in the hands of the stakeholder and the unlawful transaction is therefore not consummated, the door of repentance is open:

1 Good v. Elliot, 1790, 3 Term R. 693.

2 Johnson v. Fall, 1856, 6 Cal. 359; 65 Am. Dec. 518; Dewees v. Miller, 1851, 5 Harring. (Del.) 347; Beadles v. Bless, 1862, 27 111. 320; 81 Am. Dec. 231; Flagg v. Baldwin, 1884, 38 N. J. Eq. 219, 223; 48 Am. Rep. 308; Campbell v. Richardson, 1813, 10 Johns. (N. Y.) 406; Harris v. White, 1880, 81 N. Y. 532, 544; McElroy v. Carmichael, 1851, 6 Tex. 454.

3 Gaming Act, 1845, s. 18 (8 & 9 Viet. c. 109); Gaming Act, 1892 (55 Vict. c. 9).

4 Eldred v. Malloy, 1874, 2 Colo. 320; 25 Am. Rep. 752, (decision); Wheeler v. Spencer, 1842, 15 Conn. 28, (statute); Cleveland v. Wolff, 1871, 7 Kan. 184, (decision); Stacy v. Foss, 1841, 19 Me. 335; 36 Am. Dec. 755, (decision); Love v. Harvey, 1873, 114 Mass. 80, (decision); Wilkinson v. Tousley, 1871, 16 Minn. 299 ; 10 Am. Rep. 139, (decision); Perkins v. Eaton, 1825, 3 N. H. 152, (decision); Bernard v. Taylor, 1893, 23 Or. 416; 31 Pac. 968; 18 L. R. A. 859; 37 Am. St. Rep. 693, (decision and statute); Edgell v. McLaughlin, 1841, 6 Whar. (Pa.) 176 ; 36 Am. Dec. 214, (decision) ; Flagg v. Gilpin, 1890, 17 R. I. 10; 19 Atl. 1084, (decision); Collamer v. Day, 1829, 2 Vt. 144, (decision and statute).

5Hutchings & Co. v. Stilwell, 1857, 18 B. Mon. (57 Ky.) 776; Hensler v. Jennings, 1898, 62 N. J. L. 209; 41 Atl. 918; Van Pelt p. Schauble, 1903, 68 N. J. L. 638, 54 Atl. 437; French v. Matteson, 1901, 69 N. Y. Supp. 869; 34 Misc. Rep. 425; Simmons v. Bradley, 1871, 27 Wis. 689.

6 Quillian v. Johnson, 1905, 122 Ga. 49; 49 S. E. 801; Desgain v. Wessner, 1903, 161 Ind. 205; 67 N. E. 991; Grace v. McElroy, 1861, 1 Allen (Mass.) 563; Cofer v. Riseling, 1900, 153 Mo. 633; 55 S. W. 235; Watts v. Lynch, 1886, 64 N. H. 96; 5 Atl. 458; Meech v. Stoner, 1859, 19 N. Y. 26; Mitchell v. Orr, 1901, 107 Tenn. 534; 64 S. W. 476.

Stacy v. Foss, 1841, 19 Me. 335; 36 Am. Dec. 755: Assumpsit to recover money deposited with the defendant as stakeholder of a wager on a horse trot. Weston, C.J. (p. 337): "When the money has once been paid over to the winner, unless where made recoverable by statute, the parties being clearly in pari delicto, no action can be maintained to recover it back. But where the money has not been paid over by the stakeholder, although it has been lost by the happening of the event, it has been held that upon notice and demand, the stakeholder is liable to the loser for the amount by him deposited. ... It best comports with public policy, to arrest the illegal proceeding before it is consummated." 1

When the parties are not in pari delicto, as in the case of a wager with a swindler who wins by trick or fraud, since the contract is not malum in se, the victim may recover his stake even after payment to the winner.2

1 Hampden v. Walsh, 1876, 1 Q. B. D. 189; Burge v. Ashley & Smith, [1900] 1 Q. B. 744; Hale v. Sherwood, 1873, 40 Conn. 332; 16 Am. Rep. 37; Taylor v. Moore, 1898, 20 Ind. App. 654; 50 N. E. 770; Gilmore v. Woodcock, 1879, 69 Me. 118; 31 Am. Rep. 255; Morgan v. Beaumont, 1876, 121 Mass. 7; Whitwell v. Carter, 1856, 4 Mich. 329; Pabst Brewing Co. v. Liston, 1900, 80 Minn. 473; 83 N. W. 448; 81 Am. St. Rep. 275; Wood v. Wood, 1819, 3 Murph. (N. C.) 172; Dauler v. Hartley, 1896,* 178 Pa. St. 23; 35 Atl. 857; McGrath v. Kennedy, 1886, 15 R. I. 209; 2 Atl. 438; Guthman v. Parker, 1859, 3 Head (Tenn.) 233; Lewy p. Crawford, 1893, 5 Tex. Civ. App. 293; 23 S. W. 1041; Tarleton v. Baker, 1843, 18 Vt. 9; 44 Am. Dec. 358. See, contra, Dooley v. Jackson, 1904, 104 Mo. App. 21, 78 S. W. 330; Yates v. Foot, 1814, 12 Johns. (N. Y.) 1; Johnston v. Russell, 1869, 37 Cal. 670; holding that one who bets on an election and does not resile until the result of the election is known, cannot recover from the stakeholder.

2 Lockman v. Cobb, 1905, 77 Ark. 279; 91 S. W. 546; Auxer v. Llewellyn, 1908, 142 111. App. 265; Webb v. Fulchire, 1843, 3 Ired. (25 N. C.) 485; 40 Am. Dec. 419; Falkenburg v. Allen, 1907, 18 Okla. 210; 90 Pac. 415; 10 L. R. A. (N. S.) 494. But see Babcock v. Thompson. 1826, 2 Pick. (Mass.) 446; 15 Am. Dec. 235.

Payment over to the winner after notice or demand by the loser is not a defense in an action against the stakeholder,1 and it seems that in such a case the money may be recovered from the winner.2 Certainly, the winner is liable if, when he receives the money, he is aware that the stakeholder has been notified not to pay it over, or has himself received notice not to take it.3 It has been held that the right to recove from the stakeholder will not be defeated by the fact that the demand on the stakeholder covered the whole amount in his hands, and was based upon the ground that the plaintiff had won the bet.4 But such a demand is obviously inconsistent with the theory of repudiation and does not fairly notify the stakeholder that the party has withdrawn from the transaction. That the demand must be for the amount paid to the stakeholder by the plaintiff alone would seem to be the better rule.5