1. The plaintiff in this case, after the supposed determination of the wager,• gave notice to the stake-holder to retain the money in his hands, and not to pay it over to the supposed winner. This arrested the money in his hands, and it could at any time- after this have been reclaimed'by the- plaintiff, and the defendant would not have been authorised to withhold it, even if the wager had been decided against the former. This was settled in the case of Wood v. Duncan. 9 Porter, 227. It appears-, however, that the event on which the wager was to- be determined, in point of law, never took place, for the bill of exceptions shows that the election was declared to be void, and a new one ordered. The consequence of this decision was, to remit the parties, to this wager, to all their original rights to the monies severally deposited by them. If the money had then remained with the stake-holder, *39a special demand would have been, necessary to entitle the plaintiff to recover it-.
2. No special, demand,-however; was-necessary under the circumstances-of this case.. It appears that doubts had arisen with respect to the validity of the election, as- declared.in the first instance.. The plaintiff informed the stake-holder that the election would be- contested, and- notified him not to pay the wager to the then, supposed winner. Afterwards,, and before the decision of the proper authority omt-he contested election, the stake-holder pays over the money to the supposed winner, and informs4he plaintiff that he had done so, and that the then- supposed winner, would, indemnify him for all losses. Certainly, aft'er this, a demand was entirely unnecssary to enable the plaintiff to maintain his action, whether he elected to consider the- wager as illegal and at an end; or whether he awaited the* final decision, which in: effect, decided that the wager was neither lost or won.. The latter course was pursued, and this action was commenced in February, 1840, the decision having been made a few days previously..
The deféndant, by his-- own act, in paying over the- money, must be considered as-waiving any right to a special demands In the case-of Rathbun v. Ingalls, 7 Wend. 320, it is said that an intention formed by an agent to retain money, and communicated to-others, but not to- tlie plamtiff, would not dispense with a demand. But it is admitted' in that case, if the- intention had' been communicated to the. plaintiff, it. would have waived the- demand.
The County Court erred in instrueting- the. jury that the plaintiff could not recover without proof ©f a special demand, of the money.
Let the judgment be reversed, and the case remanded!-