It will be unnecessary to refer to Trimble v. Hill,[[162]] further than to say that the same point was decided in the same way.[[163]]
It seems, therefore, to be clearly settled law, subject only to reversal by the House of Lords, that a stakeholder holds each stake as agent for the depositor and that a depositor can recall his stake at any time before it is paid over to the winner, whether before or after the event has been decided. |Qy. Where horse disqualified.| It was, however, held in two cases[[164]] that where the owner entered a horse that was afterwards disqualified he could not recover his stakes on the ground that he would be playing a game of heads I win, tails you lose. But it is very doubtful whether these decisions would be supported at the present day considering the bias of the more recent cases.
His authority may be determined in the same way as that of an ordinary agent—
Determination of stakeholder’s authority.
(1.) By express notice of revocation, as in all the cases quoted above.
(2.) Where the objects for which the deposit was made have, to the knowledge of the stakeholder, become impossible of performance. Thus in Carr v. Martinson[[165]] where stakes had been deposited with defendant to abide the event of a horse-race between the plaintiff and one C, the race to be decided by a person named as judge, C on the day appointed did not appear and A’s horse walked over the course, and was decided by the judge to be the winner. Plaintiff demanded the whole of the stakes from the defendant, which defendant refused to pay except with the consent of C.
Held, that as soon as the race became impossible to the knowledge of the defendant, he held the stake eo instanti as money had and received to the use of the defendant, the defendant’s authority to pay the winner being thereby revoked; and that although plaintiff demanded the whole of the stakes as winner, yet that was a sufficient demand of his own stake, which defendant ought to have handed over. Per Lord Campbell, C. J., a demand was unnecessary in this case at all.
Death of principal.
(3.) Probably by the death of one of the depositors. That is the general rule in ordinary transactions between principal and agent, that the authority of the agent is revoked by the principal’s death. This point occurred, but was not taken in Manning v. Purcell.[[166]] Testator had deposited with two stakeholders a sum of money to abide the result of bets made by himself. It appeared from the evidence that a bet is always “off” on the death of one of the parties. On testator’s death the stakeholders repaid the deposit to his administratrix. One question raised in the case was whether this deposit passed under a gift in the will of all testator’s “money.” The Court held that it did not, as although, according to Varney v. Hickman, testator had power to revoke the stakeholders’ authority, he had not in his lifetime exercised this right: therefore the deposit was in no sense his moneys, though since his death it had become part of his assets. The point was not taken that the principal’s death of itself revoked the stakeholders’ authority, though that result seems to have been arrived at by means of the custom among betting men. But, as Lord Justice Bruce seems to imply, that if testator had before his death given notice to the stakeholders to return the deposit, it might then have been considered his money, it is not easy to see why the same result should not follow from a revocation by operation of law.
It will be remembered that it has been suggested above (p. 36) that the deposit of stakes by the competitors in a race is the same thing legally as the deposit in respect of an ordinary bet. If it be true, therefore, that the death of a depositor revokes the authority of the stakeholder with respect to that particular stake, |Right of executors against stakeholders.| it would seem that where a competitor in a race happens to die between the time of paying his stake or forfeit and the time when the whole is paid to the winner strictly speaking and from a legal point of view the stakeholder should repay them to his representatives, seeing that by Rule 156 of the Rules of Racing stakes and forfeits are part of the fund payable to the winner. The same would apply to entrance money where, according to Rule 160, it is payable to the winner as part of the stakes. But, of course, entrance money would not be part of the stakes where, as is usual, it is paid into the race fund.