The plaintiff does nA seek to recover under the statute against betting and gaming (1 R. S. 665 ; 2 Id. 352;) but his counsel contends that, upon the facts proved, he was entitled to recover at common law. He claims that by the common law a party to a bet may rescind it and recover back the property, on giving notice to the stakeholder not to deliver it to the winner, at any time before it has been actually delivered. Such have undoubtedly been the English decisions. (Cotton v. Thurland, 5 T. R. 405. Smith v. Birkmore, 4 Taunt. 474. . Hastleton v. Jackson, 8 Barm & Cress. 221.) But I understand it to be now well settled, in this state, that a party to a bet can not recover back money or property deposited with a stakeholder, unless he gives notice not to pay it over, before the happening of the event on which the bet depends. (Yates v. Fort, 12 John. 1. Fowler v. Van Surdam, 1 Denio, 560. Morgan v. Groff, 4 Barb. Sup. C. Rep. 528.) Such a contract, being against public policy, is void; and while it is executory, may be rescinded by either party. But after the bet is lost or won, the stakeholder holding the property as the agent of the winning party, the contract is partially at least executed. Then the maxim potior est conditio defendentis applies, and the law will not relieve against an executed illegal contract.
In this case no notice was given to the stakeholder until a fortnight after the election.- If, therefore, such notice was given before the watch was delivered to Ambler, which I by no means infer, from the evidence, it was still too late to rescind the contract. The plaintiff had suffered the property to remain unclaimed till the expiration of two weeks after the bet had been decided,, by the result of the election. '
The judgment of the Rensselaer county court must be affirmed, with costs.