In the ordinary case of a deposit in the hands of a stakeholder it would be unreasonable that he should be sued for it and put to the expense of a trial without having an opportunity to pay the money back without suit; there ought therefore to be a demand. But the deft, here has resisted the plff.’s claim upon any part of the deposit, by voluntarily paying all the stakes over to the other party, after notice, and against the orders of the plff. He has put it out of his power to respond to plff.’s demand by payment. After a demand by plff. of the whole amount, and a notice not to pay it over to the other party, and payment in disregard of this notice, we think a suit will lie against the stakeholder without a special demand of his share of the stakes.
We do not decide the question, for it is not necessary to the decision of this case, whether a bet on a horse race in another state can be recovered in this court where the parties go out of this state merely for the purpose of legalizing the bet. 15 Com. Law R. 204; Hastelow vs. Jackson, 21 ditto, 420, Egerton vs. Furzman; 5 Term Rep. 405; Cotton vs. Thurland, 4 Taunton, 474; Smith vs. Bickmore.
The plff. had a verdict.