Morgan v. Beaumont , 121 Mass. 7 ( 1876 )

Gray, C. J.

The wager was illegal, the winner had no right to the money, the stakeholder was a mere depositary, and the plaintiff, having demanded the money before it was paid over, was not in pari delicto, and was entitled to recover his deposit from the stakeholder, whether it was still in his hands, or had been paid by him to the winner after notice from the plaintiff not to do so. The fact, insisted upon at the argument, that the defendant knew of and promoted the illegal wager, affords him no protection. White v. Franklin Bank, 22 Pick. 181, 189. McKee v. Manice, 11 Cush. 357. Love v. Harvey, 114 Mass. 80. Fisher v. Hildreth, 117 Mass. 558.

The agreement as to the collection of entrance fees and the payment of expenses at the horse race, upon which the wager was laid, was wholly distinct from the wager, and cannot therefore be set up by way of recoupment in this action; and, being itself illegal, (Gen. Sts. c. 167, § 9,) will not sustain the defendant’s declaration in set-off.

Judgment for the plaintiff affirmed.