Hardy

This is an action, charging the defendant with money had and received to the plaintiff’s use. A jury having been waived, it devolves upon the court to determine the facts and apply the law.

First for the facts. On the-day of August, 1857, the plaintiff gave one O’Brien a check upon B. F. Hastings, drawn payable to O’Brien’s order, for the sum of five hundred dollars, requesting O’Brien to bet that amount for him, the plaintiff, with one Harris, upon the approaching election for sheriff of the county of Sacramento. O’Brien undertook to make the bet for the plaintiff; the plaintiff charged O’Brien to make the bet in his own name, without disclosing the plaintiff’s connection with it. O’Brien proceeded to the banking house of Hastings, drew the money, and put it in his pocket, together with á *331 small amount of Ms own; he left the bank, made the bet, and returned with Harris in a few moments ; it was agreed that O’Brien arid Harris should deposit with the defendant, Hunt, a clerk in the hank, one hundred dollars, each, as a forfeit, and that the other four hundred should be deposited with Hunt, as stakeholder, on the following Monday. O’Brien then deposited four hundred dollars…