Agent cannot recover from third party.
In Britten v. Cook[[149]] the plaintiff made bets on behalf of his principal with defendant, which bets he won. Plaintiff not having received the money from defendant, settled with his principal for the amount, because he would have been subjected to disagreeable consequences if he did not, and sued the defendant for the amount. Held that there being no express request by defendant to plaintiff to pay on his behalf, and no implied request, seeing plaintiff was not defendant’s agent, the action would not lie.
No action shall be brought, &c.
II. The next class of cases to consider are those which deal with the interpretation of that part of section 18 of the Act in question, which provides that “no action shall be brought or maintained in any Court of Law or Equity, for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made.”
Right to recover from stakeholder.
Nearly all the questions which have arisen on this part of the section relate to the right of a party to a wager to recover his stakes from a stakeholder with whom both parties have deposited their stakes. Such questions are of course entirely distinct from the right of the winner to recover the whole stakes from the stakeholder, as they usually occur when one party desires to repudiate the wager, and brings his action before the stakeholder has paid over the money to the winner.
Cases before the statute illegal wagers.
Before the statute 8 & 9 Vict., c. 109, some wagers were legal, some illegal. With respect to illegal wagers it seems never to have been questioned, but that one party could at any time before the money was paid over to the winner revoke the authority of the stakeholder, and demand back his stakes. All the cases recognise the distinction between recovering stakes from a stakeholder and recovering on the wager itself.[[150]] And in Hastelow v. Jackson it seems to have been considered that where one of the parties to the wager considering himself to be the winner demanded the whole of the stakes from the stakeholder, whereas the other party had really been decided to be the winner, such demand was a sufficient revocation of the stakeholder’s authority to pay his stake over to the winner. But this decision was doubted in Mearing v. Hellings.[[151]]
Legal wagers.
But with respect to wagers which were legal the decisions were not uniform. Thus in Eltham v. Kingsman[[152]] it was held that where two parties to a wager had deposited two watches to abide the event of a wager, which was for the purposes of the case assumed to be a legal wager, either of the parties could, while the contract was executory, revoke the authority of the stakeholder and recover his watch in trover. The Court compared the authority of a stakeholder to that of an arbitrator which was clearly countermandable before he had given his decision. On the other hand, in the later case of Emery v. Richards,[[153]] where the plaintiff sued a stakeholder to recover his deposit on a legal foot-race (the sum deposited being under £10). Held that as the contract was not illegal under the Statutes of Charles II. and Anne, neither party could retract without the consent of the other.