be immaterial in what manner the sum is raised, provided it amounts in the aggregate to the required value. Therefore, a match for 251. a-side is legal, although, in correctness, not 501. but 251. only is run for. This rule, though it has been not unreasonably objected to, is well established. If the total amount is less than 501. a distinction must be taken between money given as a prize to be run for by a third person, and stakes made by the contending parties themselves. The former may lawfully be run for since the repeal of the 13 Geo. II., whatever be the value; with respect to the latter there is some slight difficulty. But the correct rule seems to establish that if the subscriptions in the whole amount to 50l. the race is expressly legalised by the 18 Geo. II.; and if the money run for is less than that sum, but is an aggregate of stakes each less than 107., the race is yet lawful, for it does not come within the prohibitions of the statute of Aune. This last portion of the rule must be taken subject to the doubts before thrown out with respect to the construction of the act on which it rests. But if the aggregate amount is less than 507. and the individual subscriptions are more than 107., the race will, in that case, be, it is conceived, illegal. And if the doctrine of the Court of Exchequer be correct, this peculiar state of circumstances is the only condition under which a race, lawful in its nature, can become illegal, and, therefore, the only case in which bets under 107. on the result will be void.

These remarks might be well concluded here, but a few observations may be conveniently added on the legal position— the duties and liabilities of a stakeholder; especially as some points connected therewith have incidentally occurred to our notice. In Eltham v. Kingsman3 it was suggested that there was an analogy between his situation and that of an arbitrator, but this has been very properly repudiated, for it does not appear that his authority is in all cases countermandable. Here, again, the distinction between wages of a legal and those of an illegal nature must be attended to. In the case of the former, it is clear that the money deposited cannot be recovered after the decision has been made or the event taken place, with respect to which it was staked, if no attempt has Bidmead v. Gale, 4 Burr. 2432. 2 Challand v. Bray, 1 Dowl. (N. S.) 783. 3 1 B. & A. 683. Marryat v. Broderick, 2 M. & W. 369.

been made to rescind the contract previously.

A party must

as it

seems,

not be allowed to take his chance of winning and afterwards turn round and secure himself from all loss. Nor, both from reason and authority, can he recover his stake from the holder's hands, even if he demand it before the event has taken place, inasmuch as the agreement is that the money shall abide the event, and it cannot be rescinded except by mutual consent. Until the wager has been decided, the stakeholder is the agent, or, more properly, the trustee of both parties; after the decision he becomes the agent of and liable to the winner alone. The money in his hands belongs to the winner, and the parties having contracted to leave their respective shares in his possession until it can be determined who is the winner, he is entitled to hold them against either party before that period arrives. If the contract be rescinded in the manner it was entered into, viz. by mutual consent, the question of course falls to the ground. But if the wager be illegal, distinctions of greater nicety arise. If the contract is completely executed, i. e., if the stakeholder has paid over the money to the winner without notice or dispute, the loser can maintain no action to recover it. The stakeholder is functus officio, and as both parties are equally criminal, in pari delicto potior est conditio defendentis.3 If it be not executed, it may remain either entirely or partially executory; the event may not have taken place, or it may have taken place, but the money not have been paid over. In either case it is competent to either party to retract and recover his stake at any time. And if the holder pay over the money to the winner after notice from the other party not to do so, he pays in his own wrong, and is liable notwithstanding.5 The contract is not

4

'Brandon v. Hibbert, 4 Camp. 37; Poland v. Collett, 4 Camp. 157.

2 Marryatt v. Broderick, 2 M. & W. 369.

3 Cotton v. Thurland, 5 T. R. 405; Smith v. Bickmore, 4 Taunt. 474; Bate v. Cartwright, 7 Price, 540; Howson v. Hancock, 8 T. R. 575; Hastelow v. Jackson, 8 B. & C. 221. Lacaussade v. White, 7 T. R. 535, seems, indeed, opposed to this position. But this case either proceeded on a mistaken belief that the action was against the stakeholder, or is overruled by subsequent decisions. See the cases above referred to, and Vandyck v. Hewitt, 1 East, 98; Williams v. Hedley, 8 East, 382, n.; Aubert v. Walsh, 3 Taunt. 284.

• Cotton v. Thurland, and the cases above cited.

5 Hastelow v. Jackson, 8 B. & C. 221; Hodson v. Terrill, 1 C. & M. 797.

considered completely executed until the payment has been made without any objection, and as long as it remains executory, the law, with a view to prevent the completion of an illegal transaction, allows either party to retract and withdraw the money he has deposited.1 "In the case of persons entering into an illegal contract," said Littledale, J., in Hastelow v. Jackson," and paying money to a stakeholder, if the event happens and the money is paid over without dispute, that is considered as a complete execution of the contract, and the money cannot be reclaimed, but if the event has not happened the money may be recovered. With respect to a stakeholder, there is a third case, viz., where the event has happened, but before the money has been paid over, one party expresses his dissent from the payment. Under such circumstances he may recover it."

ART. V. - NOTICES OF EARLY ENGLISH LAWYERS.-No. V.

STAUNFORD.

WILLIAM STAUNFORD, the learned author of the " Exposition of the King's Prerogative," was the son of William Staunford, a London merchant, and was born on the 22nd of August, 1509, at Hadley, in Middlesex, where his father had purchased a small property. His grandfather, Robert Staunford, was a gentleman of some estate at Rowley, in Staffordshire. He was educated at Oxford, and, in the quaint language of Anthony Wood, "received so much literature among the Oxonians, that enabled him sooner than another person to conquer the rudiments of the municipal law." He was a student of Gray's Inn, was called to the bar by that society about the year 1530, and soon acquired the reputation of being (in the words of Lord Coke) "excellently learned in the common laws." In the year 1545 (36 Hen. VIII.), he was autumn reader at Gray's Inn, but was prevented from performing that duty by the pestilence which in that year raged in the metropolis; in the Lent following, however, says Wood, "he did perform that office with great credit and honour." In Rymer's

1

་

Lowry v. Bourdieu, Dougl. 468; Tappenden v. Randall, 2 B. & P. 471; Walker v. Chapman, cited by Buller, J., in Lowry v. Bourdieu.

Foedera (xv. 69), we find, under date of the year 1545, a deed of surrender from him to the Crown of the impropriate rectory of South Mims, in Hertfordshire, in which he is described as "attornatus generalis Domini regis;" but neither in Dugdale, nor in any of the early biographers, is there any hint of his having filled that office; if he did, it must probably have been for a very short period. He was a rigid Catholic, which, at that period of Henry the Eighth's reign, would render his promotion to such a post less probable. In the 5th Edward VI. (1551), he was again chosen "double Lent reader" of his inn; in the following year he was called serjeant; and in 1553, shortly after the accession of Queen Mary, was appointed one of the queen's serjeants, in which capacity he had the chief conduct of the trial of Sir Nicholas Throckmorton, and certainly appears to have distinguished himself above his fellows in browbeating that gallant prisoner. He was, doubtless, employed also in the prosecution of Wyat and the other accomplices in his insurrection; but of them the State Trials contain a less detailed narrative, which makes no mention of the name of the counsel.

In Michaelmas term, 1554, he was knighted, and appointed a judge of the Court of Common Pleas, and so continued until his death on the 28th of August, 1558, before he had completed his fiftieth year. He had directed by his will that he should be buried in the parish church of Islington, Hadley, or Houndsworth; his remains were accordingly deposited in Hadley Church.

"There is a spirit of retraction," says Anthony Wood, "of one to his native country, which made him purchase lands, and his son settle himself again, in Staffordshire." His posterity remained in that county, in Warwickshire, and elsewhere, in the time of Charles II., when Wood wrote; whether it still survives we know not. We find that a daughter of Thomas Staunford, of Rowley, very probably a son of the judge, intermarried, towards the middle of Queen Elizabeth's reign, with a member of the family of Whitgreave, of Burton, in the same county of Stafford, ancestor of the gentleman of that name who sheltered and aided the escape of Charles the Second after the battle of Worcester.

Such are the brief particulars we have been able to glean

concerning this learned writer. His well-known works, the Pleas of the Crown (the foundation of Lord Hale's admirable treatise on the same subject), and the Exposition of the King's Prerogative, were first published about the year 1583.

HOBART.

Few and slight as are the memorials of the life of Lord Chief Justice Hobart, they are sufficient to assure us, that in the array of distinguished lawyers who illustrated the reigns of Elizabeth and her successor, he was among the most eminent both for learning and integrity.

He was the son of a gentleman of family and fortune in the county of Norfolk, and great grandson of Sir James Hobart, attorney general in the reign of Henry VII.; and was born about the middle of the sixteenth century. Of his early education, and his introduction to the profession of the law, we have no account; we learn only that he was a member of the Society of Lincoln's Inn, until in the 45th of Elizabeth (1603) we find him advanced to the dignity of the coif, and on the same occasion "double Lent reader" of his Inn. He sat in parliament for the city of Norwich in the two first parliaments of James the First's reign, on whose accession to the throne he had received the honour of knighthood. On the 2nd of November, 1605, as we learn from the accurate catalogues of Dugdale, he was "exonerated from the state and degree of serjeant-at-law;” and in the following year (4th July, 1606) was appointed the king's Attorney General. This post he occupied for a period of seven years, highly to his credit as a learned, moderate, and conscientious functionary, but not quite, it would seem, to the satisfaction of the more zealous asserters of the kingly prerogative. On the death of Sir Thomas Fleming, the Chief Justice of England, in the year 1613, Bacon, then solicitor general, thus prefers his suit to the crown for his own advancement, in case of the non-appointment of his superior in office to the vacant seat :— Having understood," he writes, " of the death of the Lord Chief Justice, I do ground, in all humbleness, an assured hope, that your Majesty will not think of any other but your poor servants, your attorney (Sir Henry Hobart) and your solicitor, or one of them, for that place; else we shall be like Noah's dove,