WAGERS. 417 



ought to be determined in favour of the plaintiff. It was 

 said in the course of the argument that the general scope 

 of the Act is to prohibit Gaming and Wagering ; and that 

 this object would be best attained by holding moneys depo- 

 sited with Stakeholders not to be recoverable in this way. 

 But I see no pretence for construing the Act to mean 

 anything so penal without express words." And in this 

 opinion Cresswell and V. "Williams, JJ., agreed (,/). 



The test applicable in some cases to the determination What is a 

 of the question whether a Contract is a Wagering Con- Wagering 

 tract or not within this Statute, is, whether the price of *^°^ ^^° ' 

 the subject-matter is to vary according to the issue of an 

 event totally unconnected with its actual value. Thus 

 in a case in which the plaintiff and defendant, while con- 

 versing as to some rags, which the plaintiff proposed to 

 sell, and defendant to buy, disputed as to the price of a 

 former lot of rags, the plaintiff asserting the pjice to have 

 been lower than the defendant asserted it to have been. 

 They agreed that the question should be referred to M., a 

 spirit merchant, and that Avhichever party was wrong, 

 should pay M. for a gallon of brandy, and that if the 

 plaintiff was right, the price of the lot now on sale should 

 be G.s. per cwt., but, if the defendant was right, it should 

 be 3s. per cwt. M. decided that the plaintiff was right. 

 The plaintiff thereupon sent the rags to the defendant, but 

 the defendant refused to accept them at 6b\, offering 5.s. 

 An action having been brought for goods bargained and 

 sold, it was held by the Court of Queen's Bench that this 

 was a Wagering Contract, which could therefore not be 

 enforced by legal process, and that it made no difference 

 that there was a real intention to part with the goods {k). 



If money is advanced upon the security of a deed in Money ad- 

 pm'suance of a stipulation or agreement between the danced with, 

 plaintiff and defendant, that out of it money lost by the ^ ^^^ ^ ^°°" 

 defendant to the plaintiff on betting transactions should 

 be paid to the jDlaintiff, it is a mere colourable loan and 

 evasion of the Statute, and the deed is invalid ; but if 

 there be no such stipulation or agreement, and the plaintiff 

 advance the money as a loan for the defendant to dispose 

 of as he pleased, though the plaintiff expected to be paid 

 out of the money so lent, the deed is valid (/). 



[j) Varneij v. Hickman, 5 C. B. 90-t. And see Wihon v. Cole, 36 



282. And see further, ante, pp. 393 L. T., N. S. 702. 



—397, "Stakeholders." [1) Millx. Fox, 4 H. & N. 359 



(/.•) Roiirke v. Short, 5 E. & B. [Ex. Ch.). 



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