The foregoing cases do not leave the matter very clearly settled. They afford a number of illustrations of transactions which are not within the proviso as subscriptions to a prize; and finally Diggle v. Higgs lays down the general rule that the proviso is not intended to apply to any case which is at all in the nature of a wager. But with the exception of the case of Crofton v. Colgan, they do not go far towards showing what is a subscription or contribution to a prize. It is obvious that the exact line of distinction between a wager and a prize is very difficult to draw. Diggle v. Higgs shows that a mere deposit of stakes to be awarded to the winner of a race between two persons is a wager and nothing more; a decision that would seem to apply to the agreements in Sadler v. Smith^[193] and Dines v. Wolfe.^[194] In both these cases the parties agreed to race, in one case a horse-race and in the other a sculling race, having previously deposited stakes with the stakeholder to be awarded to the winner, though in the latter cases the point did not arise, as in neither of those actions did the plaintiff show himself to be the winner. Thus the test suggested in Batty v. Marriott is completely rejected, viz., the distinction between cases where money is deposited before the event and cases where it is not. Another test, hinted by the Court in Parsons v. Alexander, was between cases where the winnings are contributed by the competitors themselves, and where they are given by some outside person. If this be the true test, the result would be that many bonâ fide races would be placed simply on the footing of wagers,^[195] at any rate so far as the right of the winner to recover the stakes is concerned. Where the winnings consist of sums deposited and a sum added, |Distinction between the stakes and a sum added.| the case of Applegarth v. Colley shows that a distinction can be drawn between the two; the deposits might be in the nature of money won at gaming and so not recoverable, while it was held that the “sum added” by some outside person was under any circumstances recoverable by the winner. It seems that that distinction exists under the present state of the law, and that strictly and technically speaking, the stakes deposited previously to a race are not recoverable; though, no doubt, any sum of money contributed by a stranger would be a contribution to a prize within the proviso.

It is some argument in favour of this view that section 6 of the Betting House Act exempts from the penal provisions of the Act any “deposit of stakes.” This would have been unnecessary if a sweepstakes were not in the nature of a wager.

If this, as it is submitted, is the true principle, it is not difficult to ascertain how far the different forms of prizes given for races are recoverable, or how far they come within the law of wagers. Thus “a plate,” which, according to the Rules of Racing, is a prize in money not made up by subscription among the competitors, would seem to be on the same footing as “added money” as decided in Applegarth v. Colley. Entrance money would be on the same footing as the stakes in cases where, according to Rule 160, it is payable to the winner.^[196] As to “forfeits,” they would seem to be, as their name implies, in the nature of small penalties payable for withdrawing a horse from his engagements. By Rule 109 horses coming up in time to start are liable for the whole stake. It has already been pointed out (sup. p. 63), that such a penalty is not recoverable. A “cup” is any prize not consisting of money. If awarded by some outside person it would, no doubt, be within the proviso, a prize to be awarded to the winner. But if it is obtained by subscription among the competitors it would seem to be on the same footing as a money fund made up of stakes, and the subscribers would be joint owners of aliquot shares,^[197] until they have all assented to its being handed over to the winner, otherwise the statute might be evaded by the parties purchasing a chattel with the stakes.

II. With respect to the term “winner,” some rather curious points have been decided. In Crofton v. Colgan,^[198] the parties subscribed £3 each in respect of their stakes, the stewards of the race subscribing £30. There were two prizes to be awarded. It was contended that this did not come within the proviso as a prize to be awarded to the winner, on the ground that the horse that came in second could not be considered a “winner,” and, therefore, as the whole sum was not to be awarded to the winner the statute did not apply. |2nd horse may be “winner.”| But the Court held (1) that the term “winner” might apply to a second horse as well as to a first;^[199] and (2) that, apart from that objection, the mere fact that part of the stakes were not to go to the winner would not take the case out of the statute.

Another point arose in Batson v. Newson,^[200] where a man called Hawkins wagered with the plaintiff, that his, Hawkins’, horse would trot eighteen miles in one hour. Hawkins and plaintiff deposited £50 each with defendant as stakeholder to abide the event. The referee decided in Hawkins’ favour, but plaintiff, disputing the decision, gave notice to defendant to pay him back his stakes. Defendant disregarded the notice, and paid the whole to Hawkins. Plaintiff sued to recover his deposit. |There must be a “loser.”| Held, that the agreement was a mere wager; there could be no winner in such a case as only one person was to do anything. In such a case there could be no “loser,” and without a loser there can be no winner. It will be remembered that in Applegarth v. Colley the same view was taken as to the meaning of the term “winner of £10” in the Statute of Anne, and the Court there held that a man could not be said to be a winner of £10 within the statute, unless there were a corresponding loser of the same sum. |Winner must be a competitor in the race, &c.| It would seem, too, that a person cannot be called a winner unless he either take some part himself in a competition or be the owner of an animal engaged therein. Thus, in Irvine v. Osborne^[201] the plaintiff and defendants simply nominated the winner of a race, the person who nominated the successful horse to have the stakes. Plaintiff nominated a horse not belonging to himself. Held, that he could not be a winner of the race, as “the contract depended on some accidental circumstance, not on the winning of a race.”

A case that seems to fall within this rule is that of breeders’ stakes, where a certain sum is, by the conditions of the race, to be awarded to the breeder of the winner. It would seem according to the above case that not being the owner of the animal winning, the breeder could not recover under this proviso of the section.

It is obvious that any person suing to recover stakes as winner has cast upon him the burthen of proving himself to be such. The determination of such a question will generally depend upon agreement or special conditions by which competitors agree to be bound. Thus, horse-races are generally run either subject to the rules of the Jockey Club, or subject to specially advertised regulations. However, it may be taken that the winner is declared by the judge, all further questions or objections—as to, for instance, qualification—being decided by the stewards.

With respect to the authority of the judge to declare the winner, the conditions upon which it is exercisable must be strictly observed, and the same in the case of the arbitrators or umpires of other kinds of races. In the head note to Carr v. Martinson^[202] it is stated the power of the judge of a horse-race to award the stakes to a winner does not arise until the race has been run! This extraordinary point arose in the following way: the parties agreed on a race between their respective horses, naming both a starter and a judge, and fixing a particular hour on a certain day. The stakes were deposited with the defendant, to be handed over to the winner according to the decision of the judge. The parties made their appearance, but the starter did not turn up. One of the parties refused to run and the plaintiff walked over the course and was declared by the judge to be the winner. But the Court held that the presence of the starter was, by the agreement, a condition precedent to the race, and so to the judge’s authority. There had been no starter, and so no race; consequently, the judge’s authority to declare the plaintiff winner did not arise. The other point decided in this case as to recovering stakes has been noticed above.

N.B.—This case by no means decides that an umpire never has power to award the stakes to a person whose horse has simply walked over the course.

A somewhat similar point occurred in Smith v. Sadler.^[203] The plaintiff and K deposited stakes with the defendant to abide the event of a sculling race between themselves, “to row according to the recognised rules of boat-racing.” The decision of the referee to be final. It was proved in evidence that according to custom in a sculler’s race between watermen the men start themselves, but in the event of either or both making a default in starting, the referee was entitled to interfere. At the time appointed, a great difficulty took place in the men starting themselves. K complained to the referee, who told him to give notice to the plaintiff that if he did not start K was to row over the course without him. K rowed over without giving plaintiff such notice. The referee, without further inquiry, ordered the stakes to be paid to K, which the defendant did. Plaintiff sued to recover his deposit, thus disputing the decision of the referee. For the defendant (i.e., practically in favour of the referee’s decision) it was argued—(1) That the referee was in the position of an arbitrator; that therefore not even misconduct on his part could be pleaded in answer to an action on the award; but the award must first be set aside; (2) that the referee had virtually decided that there had been a proper start and a proper race, and that according to the authorities such decision was binding. The Court, however, held (1) That the cases as to setting aside the award did not apply because the jurisdiction of the referee had never arisen. The order he had given to K was conditional and K had not carried it out; therefore the race had never been rowed and there was nothing for the referee to decide. (2) That although primâ facie it would be implied from the award of the stakes that there had been a proper start and a race, that inference had been rebutted by the evidence given at the trial. Therefore the referee never had authority to declare K the winner, and the plaintiff was entitled to recover his stake from defendant.^[204]

Whenever it is made part of the conditions of a horse-race that the decision of the stewards shall be final, it is not competent for any party to question their decision, and it seems that they are not in the same position as arbitrators. They are not bound to hear the parties before deciding, they need not give a joint decision, they are not disqualified by having an interest in the race. Thus in the case of Benbow v. Jones^[205] the plaintiff was the owner of the horse that came in first, but the steward had previously decided, without hearing him, that his horse was disqualified. The Court held that these circumstances did not prevent the decision being final. As Alderson, B., humorously expressed it, the next contention would be that the steward was bound to hear the parties on oath and counsel on both sides. In Parr v. Winteringham^[206], where the stewards gave separate decisions without consultation, it was held that this was sufficient. In Ellis v. Hopper^[207] a steward was held not to be disqualified by his having made a bet on the race. In Brown v. Overbury,^[208] where the stewards could not agree as to the winner, it was held that the exclusive right of the stewards to decide lasted until it had become impossible to obtain their decision.

Again, in Dines v. Wolfe,^[209] the facts were as follows; Agreement between plaintiff and A for a race between their respective horses for £500 aside, weight for age, to be run under Australian Jockey Club rules; £100 aside deposited with defendant as stakeholder, balance to be paid to defendant fourteen days before the race. According to the rules of the Jockey Club, the stakes ought previously to the race to have been paid over to the Treasurer of the Jockey Club, but plaintiff insisted on their being retained by defendant. A’s horse won; after the race, plaintiff, finding that A’s horse had only been weighted as a four-year-old, objected that he was a five-year-old. He wrote a letter to this effect to the stewards, objecting to A’s horse being declared winner. By the rules of the Jockey Club, when the age or qualification of a horse was objected to, either before or after the running, the stewards should call for such evidence as they might require, and their decision was to be final. The stewards met to consider their decision and the plaintiff produced certificates as to the age of A’s horse; after the meeting had been several times adjourned, the plaintiff demanded another adjournment, which the stewards refused. They finally decided in favour of A’s horse. The defendant paid over the money to A. It does not appear that the plaintiff had previously demanded his stakes back from defendant.

Plaintiff sued defendant for the whole of the stakes as winner of the race. He contended (1) that the rules of the Jockey Club had not been complied with, inasmuch as the stakes had not been deposited with the treasurer of the club; therefore the race had never been run according to agreement; (2) that the stewards had not fairly decided the case, having refused his request for a further adjournment.^[210]

The jury awarded the plaintiff £500 (the amount of his own stakes) on the ground that the rules of the Jockey Club had not been complied with. The Supreme Court granted a new trial, and from this plaintiff appealed to the Privy Council. The judgment of the Privy Council was delivered by Lord Chelmsford. Plaintiff could not recover the whole of the stakes without a decision of the stewards that he was the winner. He could not recover even his own stakes back unless he had repudiated the agreement before the race was run (i.e., run according to the agreement). The plaintiff could not maintain his objection that the agreement had not been complied with, as he himself had consented to the money remaining in the stakeholder’s hands instead of being paid over to the treasurer; further, that plaintiff in writing to the stewards was really claiming the benefit of the rules, and could not therefore be heard to say that the race was not run under them. Held, also, that the stewards had acted bonâ fide, and that according to the rules there was no appeal from their decision.

Again, in Smith v. Littledale,^[211] where objections were taken to the winner on several grounds, the stewards in the weighing room decided in his favour on one point, subject to the other questions. Subsequently, the winner was disqualified on grounds that were inconsistent with the first decision. Held, that the first decision was provisional only and therefore, ultra vires, that the final decision was binding.

In Newcomen v. Lynch^[212] it was held, where the rules of a race provide that the decision of the stewards should be final, that applies to questions of construction of the rules of the race, as well as to questions of fact.

But where the agreement does not contemplate any special method of deciding disputes, the Court will construe it. If necessary, parol evidence will be admitted to explain conventional or sporting terms.

Thus, in Hussey v. Crickett,^[213] evidence was admitted to explain the term “Rump and dozen.” In Evans v. Pratt,^[214] it was explained that an agreement for a steeplechase “across country” meant a course over all obstructions, and prohibited going through open gates.

In Daintree v. Hutchinson^[215] there was an agreement between plaintiff and defendant for a dog match to be run on the Wednesday during the Newmarket February Meeting, 1841, P.P. Plaintiff was member of the Newmarket Club, but defendant was not. By the rules of this club, the February Meeting was fixed at the previous November Meeting, for a certain date, weather permitting. On the day of the meeting there was a hard frost, and the club adjourned to another day, weather permitting. The meeting had again to be put off to a subsequent Tuesday. On the Wednesday after that, the plaintiff appeared, ready to run the race, but defendant did not turn up. Defendant contended that the agreement meant the Wednesday in the week originally fixed for the Newmarket Meeting. But the Court held that the rules of the club were admissible to show that the meeting was what Baron Parke called a “moveable feast,” and that the true construction was that the race should come off on the Wednesday in any week in which the meeting should actually take place. Held, also, that parol evidence was admissible to explain that the letters P.P. meant that the parties were either to run the match or forfeit the stakes.

It may, perhaps, be mentioned here that the term “play or pay” is well known and understood both in racing and betting matters. In most races the conditions provide, that if the owner of a horse nominated withdraws him from the race he pays a smaller sum than the stake, usually half the stake, by way of “forfeit.” In some cases, however, he still remains liable for the whole stake and then it is called a “play or pay” race. So in betting, to say that a bet is “p.p.” means that if the horse backed does not run the backer still has to pay.^[216]

As to the construction of the term “gentleman rider,” see Walmsley v. Mathews (3 M. & G., 133).

In construing an agreement, the Court will look at the Rules of Racing or other the conditions of the race,^[217] |Agreement requires stamp.| but it seems that any sporting agreement should be stamped before the Court can look at it.^[218]

Thus in Carr v. Martinson (sup. p. 76) the Court held on the construction of the agreement that the presence of a starter was necessary before the race could properly be run at all. By the Jockey Club Rules the horses must be started by the official starter or his authorised substitute.

The parties can, of course, waive any of the conditions of the race by mutual consent or acquiescence, as was done in Dines v. Woolf;^[219] or any party can without the consent of the others waive a condition which tells solely for his benefit. In Evans v. Sumner (35 J.P. 761), the plaintiff sued the stakeholder for the stakes. An objection had been lodged against the plaintiff as winner on the ground of his being on the unpaid forfeit list, but the objection was, according both to the local rules and the Newmarket Rules, lodged too late. The plaintiff appeared before the stewards and did not raise the point as to time, and the objection was sustained. Held, that he could not now set up the point, as he waived the benefit of the rule, which under the circumstances told solely in his favour. Quis que renunciare potest, &c., &c.

At least this would appear to be the case so far as regards the authority of the stakeholder to pay over mere stakes to the winner; the waiver of the competitors who have subscribed them would be sufficient. But in the case of a Plate, or where there is “added money” (ante pp. 73 and 74) contributed by an outsider, the consent of such person or persons would be necessary before any of the conditions could be waived. Compare with this suggestion Rule of Racing 143, which provides that in a sweepstakes the competitors may waive a walk over, but in a Plate the consent of the Stewards is necessary.

A steward, being an unpaid official, is not liable for negligence in not appointing a judge,^[220] nor, semble, could he be responsible for the default of the stakeholder unless he knowingly appointed an unfit person.

III. What are “lawful games, sports, or pastimes or exercises” within the Act?

The question can be best answered by showing what games are unlawful either at Common Law or by statute. Some have a history. Thus horse-racing was for a long time subjected to considerable restriction. It will be remembered that by the Statute of Anne, section 5, it was made penal to win any sum over £10 at any one time, by means of gaming. It was always understood that horse-racing, which was expressly mentioned in the Statute of Charles II., was a game within the Statute of Anne, the games in both statutes being the same.^[221] The result was, as is shown in Evans v. Pratt^[222], that a horse-race for a prize of over £10 was held to be illegal. Curiously enough, in Applegarth v. Colley, an entirely different construction was put upon those statutes by the Court of Exchequer; it being there held that the statutes did not affect a case (1) where the stakes were deposited with a stakeholder before the race was run, the statutes aiming at gaming on credit and “contracts for the payment of money won at gaming;” (2) where the stakes were made up of subscriptions under the value of £10, the term winner of £10 only contemplating a case where there was a corresponding loser of that sum. However, by the time that this case was decided, all restrictions on horse-racing had been wiped off the statute books: so that this more lenient construction of the earlier prohibitive statutes came rather late.

The immediate result of the statutes was that a large number of races were started for small prizes under £10, so as not to infringe the Act, a practice which tended to deteriorate rather than improve the breed of horses. |13 Geo. II., c. 19.| To remedy this the Statute 13 George II., c. 19, was passed, which prohibited any horse-race being run except at Newmarket or Blackhambleton in Yorkshire, for any prize of less value than £50. It also prescribed some arbitrary regulations as to the weights which horses of certain age should carry. The object, of course, of this statute was to prevent horse-races being run where the prize was not sufficiently remunerative to encourage the improvement of the breed. |18 Geo. II., c. 34.| The Statute 18 George II., c. 34, repealed so much of the previous statute as related to the carrying of weights, but the other provisions of 13 George II., c. 19, which restricted the practice of horse-racing, remained in force until the passing of 3 & 4 Vict., c. 35. |3 & 4 Vict., c. 35.| By this statute all the enactments of 13 George II., c. 19, relating to horse-racing, were repealed. |Evans v. Pratt.| In Evans v. Pratt^[223] a question was raised as to the exact effect or result of this statute. The plaintiff sued to recover the stakes of a steeplechase “across country,” of which he had been declared winner. The main point was whether such a steeplechase for a prize of more than £10 was within the Statutes of Charles II. and Anne. It was argued on the one hand, that by the repeal of the earlier Statute of George II., without mentioning the statutes of Charles II. and Anne, the law as it existed under the latter was virtually restored, and, therefore, that a race for £10 was illegal. On the other hand, it was contended that the restrictions on horse-racing contained in the Statutes of Charles II. and Anne were repealed by 13 George II., c. 19, which substituted other provisions; and that the repeal of the latter statute had given “a new charter to horse-racing.” |All horse-racing made legal.| The Court held that the Statute 3 and 4 Vict., c. 35, had legalised all horse-racing, and that steeplechases were included in that term.

The only restriction in modern times to which horse-racing has been subjected is in the case of races within ten miles of London, the increase of which had been productive of great inconvenience.

By 42 and 43 Vict., c. 18, it is provided—

By section 1, a horse-race is in substance defined to be any competition between horses, or any race against time for any prize or any wager in respect of any such horse, at which more than 20 persons shall be present.

Section 2 makes all horse-races within 10 miles from Charing Cross unlawful unless licensed.

Sections 3 and 4 prescribe the method of obtaining such license.

Section 5 inflicts a penalty of £10 or two months on any person taking part in such unlicensed horse-race.

Section 6 inflicts a penalty of from £5 to £25 on owner or occupier of ground where no such race takes place.

Section 7 makes any horse-race contrary to the Act a common nuisance.

Cock-fighting seems to have been illegal at Common Law. In “Bacon’s Abridgment” it is stated that an information would lie at Common Law for using the game of cock-fighting. In Squiers v. Waiskin, Lord Ellenborough described it “a barbarous diversion not to be encouraged in a Court of Justice. I believe that cruelty to these animals in throwing at them forms part of the dehortatory charge of judges to grand juries.” It was forbidden in the metropolis by 2 & 3 Vict., c. 47, section 47, under a penalty of £5, and by 12 & 13 Vict., c. 92, the same penalty is inflicted for keeping or using any “place” for the purpose of fighting or baiting any bull, bear, badger, dog, cock, or other animal. But these Acts^[224] only apply to a place kept for the purpose. A case was lately noticed in the newspapers of a cock-fight having taken place on board a ship out at sea, and the question was suggested whether this could be a “place” within the Act. It should be remembered that the Statute 4 George IV., c. 60, defines the word “place” in previous statutes as including places “on land or water.”

Billiards is a perfectly lawful game,^[225] except that the keeping of public tables is subject to restrictions. By 8 & 9 Vict., c. 109, sections 11 and 13, it is necessary for the keeper of any public house, or any person setting up a public table, to take out a license for the same. It is made penal to allow playing on such table between the hours of 1 a.m. and 8 p.m., or in the case of a licensed victualler’s, at any time when his premises may not be open for the sale of intoxicating liquors. However, a subsequent statute, 37 & 38 Vic., c. 49, section 10, empowered licensed victuallers to sell liquor at any time to persons residing on their premises, but it has been held that that does not authorise the playing of billiards except at the times mentioned in the previous statute; it was, the Court said, a casus omissus in the statute.^[226] So, of course, games played on public tables at other than the authorised hours are not within section 18 of 8 and 9 Vict., c. 109. This will be more fully discussed in the chapter on gaming houses.

Lotteries are illegal, as will be explained in a future part of this work.

By 12 George II., c. 28, section 2, ace of hearts, pharaoh, bassett and hazard,^[227] are declared to be illegal games, to which list 13 George II., c. 19, section 19, has added the games of passage and any game with one or more dice or instrument in the nature of dice with one or more figures or numbers thereon, except backgammon.

18 George II., c. 34, provides that no person shall keep any house or place for playing roulet or roly-poly or any game with cards or dice prohibited by law.

A number of games were made unlawful by a statute 33 Henry VIII., c. 9, on the ground that they diverted people’s attention from the pursuit of archery. Among these were bowling, coyting, tennis, when played by artificers and apprentices; and all persons were bound, under penalty of 6s. 8d., to provide themselves with bow and arrow. But these provisions of the statute were repealed by section 1, 8 & 9 Vict., c. 109.

Dominoes has been held to be a lawful game.^[228]

The subject of unlawful games will be more fully treated in the Chapter on Gaming Houses.^[229]

All the statutes against unlawful games contain exceptions in favour of royal palaces during the actual residence of the Sovereign.

As to what constitutes a royal palace see Coombe v. De la Bere (22 Ch. Div. 316) and cases therein quoted.