In Britten v. Cook[149] the plaintiff made bets on behalf of his principal with defendant, which bets he won. Plaintiff not having received the money from defendant, settled with his principal for the amount, because he would have been subjected to disagreeable consequences if he did not, and sued the defendant for the amount. Held that there being no express request by defendant to plaintiff to pay on his behalf, and no implied request, seeing plaintiff was not defendant’s agent, the action would not lie.
II. The next class of cases to consider are those which deal with the interpretation of that part of section 18 of the Act in question, which provides that “no action shall be brought or maintained in any Court of Law or Equity, for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made.”
Nearly all the questions which have arisen on this part of the section relate to the right of a party to a wager to recover his stakes from a stakeholder with whom both parties have deposited their stakes. Such questions are of course entirely distinct from the right of the winner to recover the whole stakes from the stakeholder, as they usually occur when one party desires to repudiate the wager, and brings his action before the stakeholder has paid over the money to the winner.
Before the statute 8 & 9 Vict., c. 109, some wagers were legal, some illegal. With respect to illegal wagers it seems never to have been questioned, but that one party could at any time before the money was paid over to the winner revoke the authority of the stakeholder, and demand back his stakes. All the cases recognise the distinction between recovering stakes from a stakeholder and recovering on the wager itself.[150] And in Hastelow v. Jackson it seems to have been considered that where one of the parties to the wager considering himself to be the winner demanded the whole of the stakes from the stakeholder, whereas the other party had really been decided to be the winner, such demand was a sufficient revocation of the stakeholder’s authority to pay his stake over to the winner. But this decision was doubted in Mearing v. Hellings.[151]
But with respect to wagers which were legal the decisions were not uniform. Thus in Eltham v. Kingsman[152] it was held that where two parties to a wager had deposited two watches to abide the event of a wager, which was for the purposes of the case assumed to be a legal wager, either of the parties could, while the contract was executory, revoke the authority of the stakeholder and recover his watch in trover. The Court compared the authority of a stakeholder to that of an arbitrator which was clearly countermandable before he had given his decision. On the other hand, in the later case of Emery v. Richards,[153] where the plaintiff sued a stakeholder to recover his deposit on a legal foot-race (the sum deposited being under £10). Held that as the contract was not illegal under the Statutes of Charles II. and Anne, neither party could retract without the consent of the other.
All such questions as to the right to recover a deposit from a stakeholder have, since the passing of the Statute 8 & 9 Vict., c. 109, turned out on the construction of the words “no action shall be brought,” &c. |Statute only applies to actions by winner.| There is a long series of decisions to the effect that this provision only applies to actions brought by the winner of a wager either against a stakeholder or against the loser to recover his winnings, and does not prevent either party from revoking the authority of the stakeholder before the money is paid over to the winner, and suing to recover his stakes.
In Varney v. Hickman,[154] plaintiff and one Isaacs agreed to bet £20 on a race to be run between their respective horses, the stakes being deposited with defendant. Before the race the plaintiff declined the bet and demanded back his deposit. On behalf of defendant it was contended that it was an action within the meaning of the section. Maule, J., in giving judgment, discussed the effect of the part of the section. “The first part of the section,” he says, “declares the contract to be null and void; the second prevents the winner from bringing an action to recover the amount of the bet from the loser; the third prevents the winner from suing the stakeholder. It certainly is true that the second branch is involved in the first, i.e., if the section had stopped at the end of the first branch it would have followed that no action could be brought to enforce a contract so declared to be void. But I apprehend there is nothing unusual in an Act of Parliament stating a legal consequence in this way. Then the third branch of the clause, it is said, will be idle and insensible unless there be given to it the further effect of prohibiting the parties from recovering their deposits from the stakeholder upon the repudiation of the illegal contract.... But I think if the second branch of the clause be looked at, it is more consistent with the whole to treat the third as an exposition only of the first.... Although perhaps the third clause might have been omitted as well as the second, yet, the second being inserted, the third became necessary also. Looking, therefore, at the whole section, critically and grammatically, I am of opinion that it does not apply to an action like this, where a party seeks to recover his deposit from a stakeholder, upon a repudiation of the wager. Upon higher grounds also, I think that is the true construction of the Act. This cannot be considered as an action brought for recovering a sum of money alleged to be won upon a wager; nor do I think it is an action brought to recover a sum deposited in the hands of the defendant to abide the event of a wager. As soon as the defendant received notice from the plaintiff that he declined to abide by the wager, the money ceased to be money deposited in the hands of the former to abide the event, and became money of the plaintiff in his hands without any good reason for detaining it.”
In Martin v. Hewson,[155] where money had been deposited to abide the event of a cock-fight, it was held that the words “no action shall be brought,” &c., did not apply where the original object of the deposit has been revoked by the depositor; and that (assuming cock-fighting to be illegal) either depositor could before the event, revoke the stakeholder’s authority and recover his stake.
In Gatty v. Field[156] it was held that it was necessary to serve the stakeholder with a notice to determine his agency before bringing the action; this would seem to follow from the remarks of Maule, J., in Varney v. Hickman that the effect of the notice was to change the character of the deposit. So in Savage v. Madder,[157] to which allusion has been made above on another point; to an action for money had and received the defendant pleaded (inter al.): “That the money was deposited in the hands of the defendant to abide the event on which the wager was made and is claimed by the plaintiff as the winner of the said wager, and the plaintiff did not repudiate the said wager or demand back his said money before the event of the said wager.” The Court were unanimously of opinion that this was a good plea; but from the form the plea assumed the case cannot be said to decide that one depositor can revoke the stakeholder’s authority; indeed an observation of Martin, B. (at p. 180), would seem to imply that section 18 prohibited all actions against the stakeholder at all. It only shows that, at any rate where the wager has not been repudiated, the money retains its character of money deposited to abide the event. The plea, moreover, seems framed upon the assumption that the revocation must take place before the event and not merely before the money is paid over, as was also suggested in Martin v. Hewson.
The great difficulty in these cases seems to have arisen from the want of a proper understanding of the real relation in which a stakeholder stands to persons who deposit money in his hands. This question was much discussed in Hampden v. Walsh.[158] Plaintiff and Wallace deposited £500 each with defendant, as stakeholder, on an agreement that if Wallace should by a certain date prove to the satisfaction of the defendant the truth of some scientific proposition, Wallace should receive the two sums deposited. Defendant decided in Wallace’s favor. Plaintiff objected to the decision, and before the money was paid over to Wallace demanded repayment of his deposit from defendant. In spite of this notice defendant paid the whole to Wallace. Cockburn, C. J., in delivering judgment, alludes to this particular point, which had evidently been dealt with in argument: “We cannot concur in what is said in ‘Chitty on Contracts,’ 8th edition, p. 574, that ‘a stakeholder is the agent of both parties, or rather their trustee.’ It may be true that he is the trustee of both parties in a certain sense, so that, if the event comes off and the authority to pay over the money by the depositor be not revoked, he may be bound to pay it over. But primarily he is the agent of the depositor, and can deal with the money deposited so long as his authority subsists. We should look upon the defendant merely as the agent of the plaintiff and as no longer justified in paying over the money when once his authority had been countermanded.” The Court held plaintiff entitled to recover, and the case seems to go one step further than previous cases on the statute in showing that the stakeholder’s authority may be countermanded after, as well as before, the event has came off, as in Hastelow v. Jackson.[159]
The same view seems to have been taken of the matter by the Irish Courts.[160]
These decisions afterwards were supported, first by the Court of Exchequer Chambers, and next by the Privy Council. In Diggle v. Higgs,[161] plaintiff and A agreed to walk a match for £200 a side, that sum to be deposited by each with defendant. A was declared winner; but before the money was paid over plaintiff gave notice to defendant not to pay to A. Defendant disregarded the notice and plaintiff sued to recover his stakes. The Court were unanimous in upholding the authority of the previous decisions. Cockburn, C. J., however, who had in Hampden v. Walsh hinted a doubt as to the correctness of the authorities, here expressly intimates, that if the matter were res integra, he would have thought that the words of the statute precluded an action to recover even a deposit; but that he was unwilling to disturb the law as settled.
Bramwell, L. J., touching on the meaning of the words “no action shall be brought,” thinks that they are wholly superfluous and might have been left out. It will be remembered that Maule, J., in Varney v. Hickman, looked upon them as a statement of legal consequence, not strictly necessary, but intended by way of explanation of the results of the general enactment. It seems, however, not improbable that the words were inserted to prevent any question arising as to the right of the winner to recover from the stakeholder on a count for money received to his use—a point which would have presented more difficulty than an action by the winner against the loser, and which might have been made a means of evading the Act, by doing through the interposition of a stakeholder what could not be done directly. It being thought advisable to provide for the one case, the other more obvious provision would be inserted for the sake of completeness.
It will be unnecessary to refer to Trimble v. Hill,[162] further than to say that the same point was decided in the same way.[163]
It seems, therefore, to be clearly settled law, subject only to reversal by the House of Lords, that a stakeholder holds each stake as agent for the depositor and that a depositor can recall his stake at any time before it is paid over to the winner, whether before or after the event has been decided. |Qy. Where horse disqualified.| It was, however, held in two cases[164] that where the owner entered a horse that was afterwards disqualified he could not recover his stakes on the ground that he would be playing a game of heads I win, tails you lose. But it is very doubtful whether these decisions would be supported at the present day considering the bias of the more recent cases.
His authority may be determined in the same way as that of an ordinary agent—
(1.) By express notice of revocation, as in all the cases quoted above.
(2.) Where the objects for which the deposit was made have, to the knowledge of the stakeholder, become impossible of performance. Thus in Carr v. Martinson[165] where stakes had been deposited with defendant to abide the event of a horse-race between the plaintiff and one C, the race to be decided by a person named as judge, C on the day appointed did not appear and A’s horse walked over the course, and was decided by the judge to be the winner. Plaintiff demanded the whole of the stakes from the defendant, which defendant refused to pay except with the consent of C.
Held, that as soon as the race became impossible to the knowledge of the defendant, he held the stake eo instanti as money had and received to the use of the defendant, the defendant’s authority to pay the winner being thereby revoked; and that although plaintiff demanded the whole of the stakes as winner, yet that was a sufficient demand of his own stake, which defendant ought to have handed over. Per Lord Campbell, C. J., a demand was unnecessary in this case at all.
(3.) Probably by the death of one of the depositors. That is the general rule in ordinary transactions between principal and agent, that the authority of the agent is revoked by the principal’s death. This point occurred, but was not taken in Manning v. Purcell.[166] Testator had deposited with two stakeholders a sum of money to abide the result of bets made by himself. It appeared from the evidence that a bet is always “off” on the death of one of the parties. On testator’s death the stakeholders repaid the deposit to his administratrix. One question raised in the case was whether this deposit passed under a gift in the will of all testator’s “money.” The Court held that it did not, as although, according to Varney v. Hickman, testator had power to revoke the stakeholders’ authority, he had not in his lifetime exercised this right: therefore the deposit was in no sense his moneys, though since his death it had become part of his assets. The point was not taken that the principal’s death of itself revoked the stakeholders’ authority, though that result seems to have been arrived at by means of the custom among betting men. But, as Lord Justice Bruce seems to imply, that if testator had before his death given notice to the stakeholders to return the deposit, it might then have been considered his money, it is not easy to see why the same result should not follow from a revocation by operation of law.
It will be remembered that it has been suggested above (p. 36) that the deposit of stakes by the competitors in a race is the same thing legally as the deposit in respect of an ordinary bet. If it be true, therefore, that the death of a depositor revokes the authority of the stakeholder with respect to that particular stake, |Right of executors against stakeholders.| it would seem that where a competitor in a race happens to die between the time of paying his stake or forfeit and the time when the whole is paid to the winner strictly speaking and from a legal point of view the stakeholder should repay them to his representatives, seeing that by Rule 156 of the Rules of Racing stakes and forfeits are part of the fund payable to the winner. The same would apply to entrance money where, according to Rule 160, it is payable to the winner as part of the stakes. But, of course, entrance money would not be part of the stakes where, as is usual, it is paid into the race fund.
(4.) As a general rule the authority of an agent (i.e., a bare authority not coupled with an interest) is revoked by the bankruptcy[167] of the principal. Although there seems to be no express decision on the point, it seems probable that the same rule would apply in the case of a stakeholder where either of the depositors became bankrupt before the money was paid over to the winner. As the stakeholder is, according to Hampden v. Walsh,[168] merely the agent for each depositor, the safest plan for him to adopt on receiving notice of a depositor’s bankruptcy would be to consider his authority as to that stake revoked, and repay it to the trustee in bankruptcy; or perhaps he would be safe in paying it to the bankrupt himself, if the trustee had not intervened to claim it.
As the stakeholder is merely the agent for the depositors, he cannot maintain an action for the stakes. Thus, in Charlton v. Hill[169] the Clerk of the Course of a race meeting, who was sued by the plaintiff for the stakes won by him in one race, attempted to set off against that claim a sum due from plaintiff in respect of the stakes of another race. Held, that he could not do so as no action could have been maintained by the defendant seeing that the plaintiff could at any time recover the stakes back again.
It is, moreover, competent to the competitors to choose their own stakeholder or to select a substitute for the one nominated by the rules of the race. Thus, in Dines v. Wolf[170] by the rules of the race the stakes should have been paid to the Treasurer of the Australian Jockey Club, but plaintiff insisted on their being retained by the defendant. Held, therefore, that plaintiff could not make defendant liable as he had acquiesced in the change.
A question has occasionally been raised whether a steward who nominates a stakeholder can be made liable for the latter’s insolvency or default. It is difficult to see how he could be without express agreement, or perhaps unless he wilfully appointed a man unfit for the post.
The stakeholder should be very careful before he pays the stakes to the winner to ascertain that the winner has been so declared by a competent authority, seeing that if he pays and it turns out that the judge, umpire, or stewards have not acted in accordance with his or their authority, he may be liable to the other subscribers. See Smith v. Sadler.[171]
By Rule 28 of the Rules of Racing the clerk of the course, who is generally the stakeholder, is responsible for the stakes if he allows a horse to start in respect of which the stakes have not been paid. This seems to be a liability in the nature of a guarantee of a wager, seeing that the liability for stakes is simply the liability on a wager.
There seems no reason why an action should not be maintained in a contract by one person to guarantee the due performance of a wager contract by another. Such a contract could not of itself be void as a wager seeing that the statutes as we have seen only apply to the parties to the wager itself. Probably, it would have to be in writing to satisfy the Statute of Frauds as being a promise to answer for the default of another, but this is by no means certain seeing that it is not a default in paying a legal demand. If the contract be held to be within the Statute of Frauds the stakeholder ought to be required to sign an acceptance of the post, subject to the Rules of Racing, so that he may be subject to the liability provided by Rule 28.
As no action will lie on a wager, so no action can be brought to enforce a penalty for non-performance of a wager. In Irwin v. Osborne[172] the plaintiff and defendant agreed each to nominate a mare for a race, the party or parties nominating the winner to receive from the parties or party nominating the other mare the sum of £100; the party or parties who should make default in nominating a mare to pay a forfeit to the other side of £100. Defendants failed to cause their mare to run and plaintiff sued to recover £100 penalty.
Held, that it could not be recovered, as the agreement was a mere wager. “If the agreement be legal there is no obstacle to prevent the recovery of the penalty for non-performance, but if illegal the penalty can no more be recovered than damages for non-performance.”[173]
It has been shewn above, p. 36, that no action will lie to recover stakes from any of the competitors in a horse race, a sweepstakes being on the same footing as any other game for money. This decision would therefore show that what are known as “forfeits” in racing, i.e., sums payable in withdrawing a horse from the race, frequently half the stake (see Rule of Racing 105) are equally irrecoverable.
It may here be convenient to consider the rights of the parties with respect to money deposited by one party with the other on bets made between the two.
In Manning v. Purcell,[174] persons who had made wagers with the testator had deposited with him the sums they had staked. Some of these bets were lost to the testator in his life time, and after his death his testatrix paid the winners both the amounts they had deposited and the amounts they had won. Some of the bets were undecided at the time of testator’s death, and in respect of these the executrix repaid the depositors the amount of their deposits.
It was proved that by the custom among betting men bets are off on the death of one of the parties. It was held that in respect of bets decided against testator in his life time, the executrix was not justified in paying either the sum won or the deposit; but that as to the bets which had not been decided, she was justified in repaying the deposits. Knight Bruce, L. J., put the case on the ground that the contract being illegal, the executrix was justified in determining the bets before they came off. It is difficult to justify the first part of this decision relating to the deposits on the bets which had been decided in testator’s life time. A makes a ready money bet with a book maker at 5 to 1, depositing the £1 with him. A’s horse wins; A of course cannot recover the £5, but why not the £1? The truth seems to be that the deposit is made as a security for what A might lose to B on the bet, an event which became impossible. The fallacy seems to be treating the betting contract as illegal; no doubt if A had lost the bet he could not have recovered the deposit (see, however, p. 66).
In Reggio v. Stevens,[175] the plaintiff had deposited sums of money with the defendants in respect of stock exchange transactions which he intended to open at the defendant’s office. These transactions being for differences were held by the Court to be wagering contracts (see post on the Chapter on Stock Exchange). The plaintiff, as he was by the agreement entitled to do, gave notice to close the transactions, which showed a balance in his favour, at the same time demanding the winnings and repayment of his deposit.
It was contended under the authority of Manning v. Purcell, that inasmuch as the notice to close the transaction was in effect determined the wager, the deposit could be recovered. The Court held that inasmuch as the money had been deposited in respect, not of one, but of a series of transactions, the case came under the second part of Manning v. Purcell, and that the deposit could be recovered.
By sect. 5 of the Act of 1853: “Any money or valuable thing received by any such person as aforesaid, as a deposit on any bet, or as or for the consideration for any such assurance, undertaking, promise, or agreement as aforesaid, shall be deemed to have been received to or for the use of the person from whom the same was received, |Deposit with keeper of betting house.| and such money or valuable thing or the value thereof may be recovered accordingly with full costs of suit.” It is obvious that the section is hardly intelligible without reference to the other sections of the Act, which will be found set out in the Chapter on Betting Houses. In Doggett v. Catterns,[176] the defendant was in the habit of standing by a tree in Hyde Park, making bets with other persons. The plaintiff deposited a sum of money with the defendant in respect of one of these bets, which sum plaintiff now sued to recover. The majority of the Court held that the “person aforesaid,” in section 5, alluded to the persons specified in section 4, i.e., the owner or occupier of the place, &c., or person acting on his behalf, or having the care or management of the business. That the section did not include any “person using the same,” and that as the defendant could not be said to be the owner or occupier of any place in Hyde Park, the section did not apply.
It will, however, be noticed that the section speaks of a deposit (1) on any bet, (2) as or for the consideration for any assurance as aforesaid. Now the assurance spoken of in the previous section refers only to an agreement to pay on the contingency of a horse-race or other sport. It would seem, therefore, that while the penal provisions of section 4 are confined to deposits on bets on horse-races, &c., |Does s. 5 apply to bets in stocks and shares?| the right of action given by section 5 to recover deposits on any bet applies to bets of every kind, and therefore to wagering transactions, &c., on stocks and shares. It is to transactions of the latter kind that this question would have a practical application. In the outside Stock Exchange places, commonly known as “bucket shops,” bargains for differences (which are really wagers) are well known. (See post, the Chapter on Stock Exchange).
Another point which would seem somewhat doubtful under the section is, supposing a deposit be made within the section, i.e., with the owner or occupier, &c., of the place kept for the unlawful purpose, and the bet is determined against the depositor, can he still recover this as a deposit on the bet, |After bet lost to depositor.| even though the money ceases to retain its character as a deposit, and has been appropriated to the payment of a lost bet? It would seem that he could. The Act was passed to discourage and penalize establishments of a specified kind. Besides, it would seem that even before the Act, according to Manning v. Purcell (ubi sup.) money deposited on a bet can in all cases be recovered before the event, so that for this purpose the Act was unnecessary.
At all events, before an action can be brought under this section at all, the following circumstances must combine: (1) Receipt of money on deposit (2) by the owner or occupier (or his agent or manager in the betting business) (3) of a place, etc., kept or used for the purposes mentioned in sections 1 and 3. As to this and “place” and “user,” see the Chapter on Betting Houses; but (4) it is at p. 190 pointed out that the receipt under section 4 need not be in the house or place.
The insertion of the clause commencing with the words, “no action shall be brought,” may, perhaps, have a practical significance in one case, where an action is brought in England on a wager-contract made in a foreign country where such contracts are enforceable.
It will be sufficient for present purposes to state a few general rules which prevail in a case of what is called a conflict of laws:—
(1.) Where a contract contemplates any particular country as the place of performance, the contract is governed by the law of that country, the lex loci solutionis; e.g., the liability of the acceptor and indorser of a bill of exchange, drawn and accepted in France, but accepted payable in England, must be decided according to the law of England.[177]
Robinson v. Bland[178] is an example of a bill accepted for gaming debts contracted abroad. Plaintiff sued on an acceptance given in France, payable in England, for money lost at play in France. The acceptor died before action brought. It appeared that the debt could only have been enforced in France by the marshals in a court of honour and not in the ordinary courts, and the only process ultimately available was personal attachment, which in the present case would have been impossible as the debtor was dead. So as the debt could not have been enforced in France, no action would lie here. According to English law the bill was void by the Statute of Anne.
(2.) Where no special place of performance is named, the lex loci contractus prevails, that is, the law of the place where the contract is made; or in the case of an executed contract, where the transaction is carried out; e.g., money advanced in France for the purposes of gaming is a transaction governed by French law.[179]
In Quarrier v. Coulston,[180] a bill was filed by the personal representative of a deceased person to have an I O U given to defendant by deceased delivered up to be cancelled, on the ground that it was given in respect of money won from deceased at cards, or lent to him for gaming purposes, while travelling on the Continent at Baden-Baden and other places in Germany. Judgment was given for the defendants, on the ground that it did not appear that the games were unlawful by the laws of the country where the money was won.
(3.) The formalities necessary for a contract must be decided by the law of the place where the contract is made.
(4.) Questions of procedure are decided according to the law of the forum where the case is tried.
In Leroux v. Brown,[181] it was decided the words in the 4th section of the Statute of Frauds, which provide that “no action shall be brought” upon certain contracts therein specified unless there be some memorandum of them in writing, refer to procedure only, and do not affect the substance of the contract; consequently, where an action was brought in England on a verbal contract entered into in France, where no writing was required, but which by the 4th section of the Statute of Frauds ought to have been in writing in England, it was held that as the Statute of Frauds referred to procedure only, the law of England must prevail where the action was brought, and that the rule above stated as to the formalities did not apply.
It may be, therefore, that the same words used in 8 & 9 Vict., c. 109, section 18, would have the same effect, viz., in preventing an action being brought in English Courts on a wager-contract entered into abroad in a country where they are legally enforceable.[182] This, of course, would not apply to money lent for gaming purposes,[183] which depends on 5 & 6 William IV. and not on 8 & 9 Vict., c. 109. (See ante p. 14.)
III. We now come to the last part of the section, commonly called the “Proviso,” which says that “this enactment shall not be deemed to apply to any subscription or contribution, or agreement to subscribe or contribute for or towards any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise.”
There are three series of questions on this proviso.
I. As to what is “a subscription or contribution to a prize”?
II. As to when a person is “the winner” within the statute?
III. What are lawful games, sports, &c.?
I. What is the meaning of a subscription or contribution to a prize?
In many of the cases the line is very fine between such subscription and a deposit of sweepstakes. In Batty v. Marriott,[184] a foot-race was agreed upon between plaintiff and A for £10 a side, and each deposited £10 with the defendant as stakeholder. A was declared winner, but plaintiff disputed the decision and demanded back his stakes. The Court held that the provisions of 16 Car. II. and 9 Anne relating to the question, were repealed by 8 & 9 Vict., c. 109; and that although the contract was in the nature of a wager, still the Act laid down no rule with respect to the number of subscribers necessary to form “a subscription to a prize.” It made no difference between the case of two or fifty. They all intimated that their decision went farther than the Legislature intended to go—consequently, as a foot-race is a lawful game, and as one party who has paid money on a legal contract cannot recall it without the consent of the others, they held that the plaintiff could not recover his stake.
If this case were good law, it would follow that the real test to be applied is, whether or not the money were deposited before the event came off in the hands of a stakeholder.
But the decision was not regarded with much favour in the later case of Parsons v. Alexander.[185] Plaintiff sued on an account stated for money which had been won at billiards. Defendant having, to start with, a few shillings in his pocket played the plaintiff for a certain sum and lost. They then played again for “double or quits,” and defendant was again unsuccessful. This was repeated until the defendant lost to the plaintiff about £65, for which he gave an I O U. The Court, while intimating doubts as to the correctness of Batty v. Marriott, distinguished the case before them on the ground that the parties had played entirely on credit, and had not, as in Batty v. Marriott, deposited the stakes before the event came off.
Per Erle, J.: “The distinction is between gaming and cases where a person either pays down a contribution to a stake, or holds himself forth as having contributed.” Per Crampton, J.: “This was an agreement, if you win, I pay you; if you lose, you pay me.”
This distinction suggested by the Court of cases where the money is actually deposited by the parties who play, and cases where it is not, seems also to have occurred to Maule, J., in Johnson v. Lansley:[186] “The 18th section seems to treat the money which is in a man’s pocket at the time as the reasonable limit to which he may lawfully gamble.” So, too, under the older statutes of Charles II. and Anne, as interpreted by Applegarth v. Colley, there was no objection to gaming so long as the stakes were prepaid.
Some of the Court said that but for Batty v. Marriott, they would have thought the proviso was confined to subscriptions by outside parties to a prize, and not to deposits by the players themselves. In Brown v. Overbury,[187] the plaintiff was a subscriber to a race. The stewards could not agree as to the winner. Plaintiff claimed that his horse had won, and brought an action against the stakeholder to recover the stakes, thereby submitting the decision of the race to the jury. At the trial it was contended that he was, at all events, entitled to recover his own contribution. It was not even argued that this case was within the “proviso” as a contribution to a prize. The Court held that as it had not been shown that it had become impossible to obtain the decision of the stewards, he could not call on the stakeholder to return his contribution.
In Irwin v. Osborne,[188] plaintiff agreed with the defendants that a match should be run between a mare, the property of M, and a mare the property of the plaintiff; that the party who nominated the winner should receive from the party or parties nominating the other mare the sum of £100; and that if either party who nominated a mare should make default in causing such mare to run, he or they should pay the other party £100. The defendants made such default, and plaintiff sued for £100. The Court held that this was not within the proviso of the statute; there was “no subscription; no contribution; no deposit. This action has been brought, not for a contribution, but to recover a penalty.... For the amount is not made up by a contribution or money deposited, and the winner had to depend on his good fortune in nominating the successful horse.... The contract depended on an accidental circumstance, not on the running of a race.”
Per Crampton, J.: “If it be an ordinary wager it is unlawful; all betting is disallowed, but an exception is made on what I may call a particular species of wagering, namely, a number of persons making a fund, the whole of which is to become the property of the successful party.”
It is clear that in this case the test of prepayment of stakes was adopted by the Court, following Batty v. Marriott.
In Crofton v. Colgan it seems to have been assumed that a subscription to a race by all the owners of the horses running, and a further sum added by the stewards of the race was within the proviso; but the real dispute in this case was on the meaning of the term “winner,” which will be fully discussed hereafter. So the case is of no great value in laying down any test or principle for determining what amounts to “subscription” or “prize.”
In Coombes v. Dibble,[189] plaintiff and defendant agreed to ride a race on their own horses, the winner to keep both horses as his own property. Held that this was not within the proviso, as there was in no sense a contribution to a prize. Neither party could be said to “contribute” their horses if they won. Martin, B., however, suggested that if a horse had been placed in the custody of a stakeholder before the race came off, that might have been in the nature of a contribution to a prize within the statute.
So far the balance of authority seems to have been in favour of the decision in Batty v. Marriott and the test therein suggested, the only dicta to the contrary were the remarks made by some of the judges in Parsons v. Alexander.
But the point has now been decided the other way by the Court of Appeal and by the Judicial Committee of the Privy Council, in two cases to which we have alluded above on another point, viz., Diggle v. Higgs[190] and Trimble v. Hill.[191] In Diggle v. Higgs, in addition to the point decided above, it was contended for the defendant that the deposits were in the nature of a contribution to a prize; but the Court held—
(1.) That the agreement was a mere wager, in spite of the fact that the money was deposited with a stake holder;
(2.) That the proviso in favour of subscription to a prize was only meant to apply to agreements which were not in the nature of wagers. Per Lord Cairns, L. C.: “It is clear that there may be in scores of forms ‘subscriptions or contributions’ towards a plate or prize without there being any wager, and I cannot read this proviso, which has a natural and intelligible meaning, in a different way, any one which would have the effect of neutralizing the enactment.... I read the proviso thus: ‘Provided that so long as there is a subscription which is not a wager, the second part of the section shall not apply.’”
(3.) That the enactment avoiding wagers apply to all wagers, irrespective of the legality or illegality of the game.
This case was afterwards followed by the Privy Council in Trimble v. Hill.[192]