The, opinion of the Court was delivered by
Weston C. J.It is conceded, that the bet out of which this controversy grew, is not a valid contract. And it has been decided by this Court, that all wagers in this State are unlawful. Lewis v. Littlefield, 15 Maine R. 233. The action however is resisted on the ground, that the stakeholder is a party to the unlawful contract, and that both plaintiff and defendant being in pari delicto, the law will lend its aid to neither. And a distinction is taken between notice to the stakeholder, repudiating and disaffirming the contract, before and after the hap*337pening of the event, upon which the wager is made to depend.
When the money has been once 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. Howson v. Hancock, 8 T. R. 575; McCullum v. Gourlay, 8 Johns. 147. 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. Cotton v. Thurland, 5 T. R. 405; Lacaussade v. White, 7 do. 535.
The case of Yates v. Foote, 12 Johns. 1, has been cited for the defendant, where it was held that after the event has happened, no action will lie by the loser against the stakeholder, upon notice and demand, while the money remains in his hands. And in McKeon v. Caherly, 3 Wend. 494, the law is stated to have been thus settled, ¡by the case of Yates v. Foot. That was a decision of the Court for the correction of errors, fifteen to six, against the unanimous opinion of the Supreme Court, delivered by Chief Justice Kenl. It was one of five cases, depending upon the same facts and principles, in one of which, Vischer v. Yates, 11 Johns. 23, the judgment of the Supreme Court, is reported. Kent C. J. there reviews the English cases, and he thence deduces, that an action may be maintained against, the stakeholder, upon notice and demand, before he pays over the money, as well after as before the happening of the event. To this result, as sound and correct, is added the undivided opinion of the Supreme Court of New York. The rule, that.no action lies, where the parties are in pari delicto, was interposed. The learned Chief Justice says, “ this objection is applied exclusively to the suit against the principal, or winner; and there is no instance in which it has been used as a protection to the intermediate stakeholder, who, though an agent in the transaction, is no party in interest to the illegal contract.”
*338It best comports with public policy, to arrest the illegal proceeding, before it is consummated ; and in our judgment, the opinion of the Supreme Court is better sustained, upon principle and authority, than that of the Court of errors. The non-suit, ordered by the Court below, is not warranted by the law of the case.
Exceptions sustained.