This case has once before been before the court: see Maine K., vol. 69, p. 118 ; and it comes now upon a report showing substantially the same facts which then appeared, with the following addition. After the ruling of the judge at nisiprius nonsuiting the plaintiff in the present action, which ruling was considered and found to be erroneous at the former hearing in this court, the mayor of Belfast where the plaintiff resides wont and demanded the money of the defendant, stating that he understood the money was in defendant’s hands as a wager on the election, and that he should take legal steps to obtain it. Upon a second demand made by the mayor accompanied by Mr. Jewett the city solicitor, the defendant appears to have paid over the money taking the mayor’s receipt setting forth the facts and agreeing to hold the defendant harmless should it- be ultimately decided that the money did not belong to the city, and the money eventuually went into the city treasury.
We do not think this amounts to a defense. The money did not belong to the city until it was adjudged forfeited in a suit brought against the maker of the bet.
*496By B. S., c. 4, § 70, the mayor of the city or treasurer of the town entitled to the forfeited money is directed to sue for and recover it; and this suit must of necessity be against the party wagering the money, and must be brought according to the provisions of chap. 81, § 90, within a year or it cannot be maintained.
The statute contemplates an adjudication in a suit thus brought to which the person making the bet shall be a party in order to complete the forfeiture and deprive the person of the money to which he would be otherwise entitled as his own.
The stakeholder would not be liable in a suit brought by the mayor of the eity or the treasurer of the town unless seasonably summoned as trustee of him who is subject to the penalty and forfeiture.
Whether the city could have enforced the forfeitur e by a suit brought after the plaintiff had reclaimed his money from the stakeholder, but within a year from the time when the forfeiture was incurred is not the question here.
No such suit was ever brought.
As remarked in the previous opinion the stakeholder cannot avail himself of the plaintiff’s liability to the city, a liability wliich was not duly and legally enforced, as a defense to this suit. It is suggested in argument that there is no sufficient proof of a demand of the money before the commencement of this action. The plaintiff, though he does not give the words used, testifies that he demanded the money and defendant does not deny that he so understood it.
Defendant defaulted.
Appleton, C. J., Daneorth, Peters and Symonds, JJ., concurred.