HORSE RAC E. Any race in which any horse, mare, or gelding is run or made to run in competition with any other horse, mare, or gelding or against time, for any prize of what nature or kind soever, or for any bet or wager made or to be made in re spect to any such horse, mare, or gelding or the riders thereof, and at which more than ' twenty persons are present. Stat. 42 & 43 Vict. c. 18, s. 1.
The first statute regarding horse-racing was passed in 1664, entitled an act against deceitful, dis orderly, and excessive gaming ; but this act being found ineufilcient to prevent the abuses at which it was directed, the statute 9 Anne, c. 14, was passed In 1710, reciting that all mortgages and instruments, where the coneideration was money won by gaming or betting, or the repayment of money lent at such gaming and betting, should be void; and that the loser of ten pounds pr upward on such gaming or betting might, within three months, sue and recover hack treble the value of We losses ; and that any person winning ten pounds or upwards might be in dicted and, on conviction, fot'feit five times the val ue 'so won, and if won by cheating, the winner should be deemed infamous, and suffer such cor poral punishment as in eases of wilful perjury. This act, being only directed to races at which betting of ten pounds or over was indulged, increas ed the number at which the limit was hale 1.1t amount to euch an extent that it was found neccs sary to restrict still further the practice, and in 1740 and 1745 the acte 13 Geo. Ii. c. 19 and 18. Geo. II. c. 34 went into effect. The latter, ae an en couragement to breeders, legalized those races at which the stakes amounted to fifty pounds, and also made a distinction between matches and races. So much of the acts 16 Car. II. c. 7 and 9 Anne, c. 14 ae rendered void any note, bill or mortgage given for a gambling contract was repealed during the reign of William IV. and they were amended so as to make such instruments not void, but given for an illegal consideration ; 5 & 6 Will. IV. c. 41. This statute is still in force. The acts 3 & 4 Vict. c. 5 and 8 & 9 Vict. c, 109 repealed the former acts of 15 Car. II. c. 7, and all of 9 Anne, c. 14 that had not already been altered by 5 & 6 Will. IV. c. 41. The act 17 & 18 Vict. c. 38 wds supplementary to 8 & 9 Vict. c. 109, as were also 37 Vict. e. 15 and 42 & 43 Vict. c. 18, and 55 Viet. c. 9.
Contributions or subscriptions towards any plate, prize, or sum of money to be awarded to the winner of any lawful horse race are not unlawful and do not constitute a wager ; [1895] 1 Q. B. 698; but a match between two
horses, for a sum of money contributed by their respective owners, although legal, is a void contract within the statute 8 & 9 Vict. c. 109; and money in the hands of a stake holder or loser cannot be recovered by the winner in an action at law ; 1 C. P. D. 573 ; and see 2 Ex. D. 442 (overruling 5 C. B. 831); 5 App. Cas. 342 approving 2 Ex. D. 442.
The stakeholder is bound to retain the money in his hands until it is clearly decided which party is entitled to it ; 2 M. & W. 369; but he is merely a stakeholder, and has no right to the stakes until he actually receives them in his hands; 5 C. & P. 147. Where the race has not been, and cannot be, run, the position of the stakeholder is that of a debtor to each party for the amount contrib uted by each, and a specific demand of the stake from him is unnecessary ; but where there is a possibility that the race may still be run and decided, each party must make a specific demand of his stake from the stakeholder before he can recover from him; 28 L. J. Q. B. 126. In a lawful horse race, the payment of entrance money to the stake holder constitutes a legal contract, and such money cannot be recovered back unless there is a mutual rescission of the contract ; 2 M. & W. 369. As to the recovery back of money paid to a stakeholder pending the result of an illegal contest, it may be recovered be fore the contest takes place, but not after wards; 8 B. & C. 226; Deaver v. Bennett, 29 Neb. 812, 46 N. W. 161, 26 Am. St. Rep. 415 ; but the former case, although regarded as an authority ; [1895] 1 Q. B. 698; Wise v. Rose, 110 Cal. 159, 42 Pac. 569; has been doubted : 14 M. & W. 712 ; and held irreconcilable with the statute; 9 Ir. C. L. R. 13. In Diggs v. Higgs, 2 Ex. D. 442, the court say "what le gal right there may be to recover back money paid under such a contract, the statute leaves it untouched." In the United States it is held that the depositor may revoke the stakeholder's authority to pay over the stakes and bring an action, against him for its re covery ; Corson v. Neatheny, 9 Col. 212, 11 Pac. 82 ; and if, after the receipt of such notice, the stakeholder pay over the money to the winner, he is liable to the depositor; Wise v. Rose, 110 Cal. 159, 42 Pac. 569.