.STAKEHOLDERS. 399 



against the party who has agreed to subscribe or con- Winner may 



tribute to the Stakes, where it has not been paid up, and mamtam an 



this however great the amount may be ; provided that the 



game is lawful and that the transaction is not in the 



nature of a Wager. But it is a good answer to an action 



for money had and received, that the money w^as deposited 



in the hands of the defendant to abide the event on which 



a Wager was made, and was claimed by the plaintiff as 



the Winner of the Wager, and that he did not repudiate 



the Wager, or demand back his money before the event 



thereof, and had never repudiated the Wager, or claimed 



the money on any ground than as Winner of the Wager, 



and that no part of the money was a subscription or 



contribution, or due on any agreement to subscribe or 



contribute towards any plate, prize or sum of money to be 



awarded to the Winner or Winners of any lawful Game, 



Sport, Pastime, or Exercise (r). 



An action might probably be maintained for the Stakes 

 or Prize by the Winner in every lawful Sport, Pastime, or 

 Exercise, which a Judge in his discretion might not think 

 too frivolous to try. And he would probably allow an 

 action to be tried, should its subject-matter be a claim by 

 the Winner of Stakes in any of the sports mentioned in 

 7 & 8 Yict. c. 3 (s).^ 



Where five shillings a head had been staked by the -^ Cricket 

 eleven players on each side in a Cricket Match, an action ^ ° ' 

 was tried, and the Winners recovered the Stake from the 

 Stakeholder {t). 



But Lord Tenterden refused to try an action to recover A Wrestling 

 back a deposit on a Wrestling Match {u) . Match. 



So also Abbott, C. J., refused to try an action brought A Dog Fight, 

 against the Stakeholder on a Dog Fig Jit, and said, " The 

 time of the Court is not to be wasted in trying which Dog 

 or which Man won a battle" (.r). 



Where fraud has been practised the loser of a Pace may Loser may- 

 recover his Stake from the Stakeholder, and produce the g^t^kTwhere 

 agreement without a Stamp. In the following case the there has 

 plaintiff entered into a written agreement with a third been Fraud, 

 party to race their Horses upon certain terms, and he de- 



(r) Savage v. Madder, 36 L. J., [t) Walpole v. Saimders, 7 D. & 



Ex. 78 ; 16 L. T., N. S. 600 ; 16 R. 130. 



W. R. 910; and see Diffgle v. {u) Kennedij v. Gad, 3 C. & P. 



Biggs, L. R, 2 Ex. D. 422 ; 46 L. 376. 



J., Ex. 721 ; 37 L. T., N. S. 27. [x) Egcrton v. Furzeman, 1 C. & 



(s) See Gaming, post, Chap. 4. P. 613. 



