The opinion of the Court was drawn up by

It seems that A. P. House and A. P. Hamilton placed in the hands of the defendant, each one hundred dollars, to bide the result of a horse-race, and that the defendant was to pay the whole amount thus deposited to the party who should win the bet. The money deposited by Ilam*106ilton was furnished by the plaintiff, who was the party interested in the wager. ,

The race was run, and the plaintiff was the winner. House, the losing party, who seems to have been willing to adhere to his bet only in case of its success, forbade the payment of the money to the winner, and demanded his deposit. The defendant was desirous of paying House the. money- by him deposited, and thus exonerate himself; but the plaintiff, claiming that he had won, forbade the payment and agreed to indemnify him against the expenses of any suit that might be commenced; — that he might apply the money in his hands to the payment of any such expenses, and that, if this should not be sufficient, he would pay any balance remaining. The loser commenced a suit. “ When the event has transpired, and the money is lost, it is not for the criminality of the act that the loser repents,” says Hebard, J., in Danforth v. Evans, 16 Vermont, 588, “but it is that he has lost his money.” But the repentance of House availed him, and he saved his money, as was determined in House v. McKenney, 46 Maine, 94.

The plaintiff brings this action to recover his money deposited by Hamilton for his benefit. The costs of the defence in the suit, House v. McKenney, have been paid by the defendant, and much exceed the money i3 his hands.

It is well settled law, that if a party having an interest, request another to bring an action or to defend one already brought, and promises that he will indemnify the party so • bringing or defending against the costs of such prosecution or defence, if he will permit him to assume the management of such suit, he will be liable upon such promise. Goodspeed v. Fuller, 46 Maine, 141; Knight v. Sawin, 6 Greenl., 361; Fenden v. Parker, 11 Mees. & Weis., 675; Adams v. Pansey, 6 Bing., 506. The plaintiff directed the defence to be made, and employed counsel. The money deposited has been applied to the purposes of the defence, according to the directions of this plaintiff. That the defence then made was unsuccessful, was no fault of the defendant. In all litiga*107tion, there must be a losing and a winning party. The want of success in that suit in no way enlarges the plaintiff’s right to recover. The defendant lias in all respects followed the directions of the plaintiff, and he is not to be mulcted in the costs of a litigation in which he had no interest, and where the benefit, if successful, would have accrued "to the plaintiff.

“The stakeholder,” remarks Shaw, C. J., in Ball v. Gilbert, 12 Met., 397, “is a mere depositary of both parties for the money deposited by them respectively, with a naked authority to deliver over on the proposed contingency. If the authority is actually revoked before the money is paid over, it remains a naked deposit to the use of the depositor.” If the money be paid to the winner by the consent, express or implied, of the loser, and before he countermands such payment, he cannot recover it back. West v. Holmes, 26 Vermont, 533. “ The consent to its being paid,” remarks Redfield, C. J., in the case last cited, “ gives him, (the winner,) the right to retain it, as the Court will not interfere after the illegal wager is consummated.” If the stakeholder pay the winner before the authority given is countermanded by notice not to pay, such payment will be a defence to the action. Danforth v. Evans, 16 Vermont, 538; McAllister v. Gallagher, 3 Penn., 468; Stacy v. Foss, 19 Maine, 335; Tarleton v. Baker, 18 Vermont, 9; Ball v. Gilbert, 12 Met., 403.

But whether the payment be made to the winner or any one else, if made by the authority of the party depositing, can make no difference. The stakeholder, when he obeys the directions of the owner as to the disposition of his funds, is to be protected.

The action of assumpsit is equitable in its character. The defendant has none of the plaintiff’s funds. He has paid them as the plaintiff directed.

The plaintiff would impose upon an innocent party the expense of a litigation in which he had no interest. He has no claim morally, legally nor equitably.

“ It is certainly to be regretted,” remarks Caster, O. J., in Kenney v. Stubbs, 4 Allen, (N. B.,) 127, which related to a *108borse-race, “ that in the great press of business, * * the time of the country should be taken up with matters of this sort.” But, whether the horse-racing 'be in New Brunswick or here, that suits without foundation are instituted, must always be matter of regret. Exceptions overruled.