SM 



RACING, STAKEHOLDERS AND STEWARDS. 



J]atti/ V. Mar- 

 riott over- 

 ruled by 

 Dif/ffle V. 

 Biggs. 



Judgment of 

 Lord Cairns, 

 L. C. 



persons agreed to run a Foot Eace, and eacli of them 

 deposited 10/. with the third person, the whole 20/. to be 

 paid by him to the Winner of the Race ; it was held by 

 the Court of Common Pleas that the loser could not recover 

 back his deposit from the Stakeholder {x) . 



This case appears to have been decided on the ground 

 that the game was not an unlawful one, and that there 

 was nothing in the case that was struck at by the Act of 

 Parliament ; but the true test appears to be whether the 

 deposit was in the nature of a wager or of a subscription 

 or contribution to a prize to be awarded to the winner of 

 any laAvful game, sport, pastime, or exercise. And tliis 

 has been so held by the Coiu't of Appeal in the recent case 

 of Diggle v. HigO'i {y), overruling Batty v. Harriott (s), on 

 very similar facts. The law on the subject being very 

 clearly laid down in the following judgment of Lord 

 Cairns, L. C. : — 



" The first question which we must ask ourselves is, 

 was this contract a Wager? It seems to me beyond a 

 doubt that it was a Wager ; it was a Wager between two 

 men for a walking match. They agreed to walk at the 

 Higginshaw Grounds for 200/. a-side ; it is not the less a 

 Wager because the money was deposited with the de- 

 fendant as Stakeholder. When the Wager was decided, 

 the winner would be paid the 200/. deposited by the loser, 

 and receive back his own 200/. Now upon that, what is 

 the construction of sect. 18 of 8 & 9 Yict. c. 109 ? Is a 

 contract of this kind excepted by the proviso ? We start 

 with this, that the contract was clearly a Wager, and was 

 within the first part of the section. But the section says 

 all contracts and agreements, whether by parol or in writing, 

 by way of Graming or Wagering, shall be null and void ; 

 and then there is a proviso which follows upon an inter- 

 vening sentence in these words — 'And no suit shall be 

 brought or maintained in any court of law or equity for 

 recovering any simi of money or valuable thing alleged to 

 have been 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.' Then comes the 

 proviso on which this question mainly rests — ' Provided 

 always, that this enactment shall not be deemed to apply 



(.r) Batty Y. Marriott, 5 C. B. 818. 



hj) L. E., 2 Ex. D. 422; 46 L. 

 J., Ex. 721 ; 37 L. T., N. S. 27; 

 25 W. K. 777. Reversing the de- 



cision of Huddleston, B., 25 W. 

 R. 607. And see Trimble v. Mill, 

 L. R., 5 App. Cas. 342. 

 {•) 5 C. B. 818. 



