376 



EACING, STAKEHOLDERS AND STEWARDS. 



Stake irrnst 

 abide the 

 event of a 

 legal contract. 



Becovery of 

 deposit from 

 stakeholder. 



Batfij V. Mar- 

 riott over- 

 ruled by 

 S'lggle v. 

 Riggs. 



When the entrance money has been paid or agreed to 

 he paid to the stakeholder, it must, according to the general 

 principle of all contracts, abide the result of the race, which, 

 being a legal contract, it cannot be recovered by the party 

 who has made the entry, unless there be a mutual agreement 

 for the rescission of the contract, which is called being " off 

 by consent." On this point an opinion was expressed by 

 Mr. Baron Parke, where an action had been brought by a 

 party to recover back his own entrance money, after a race 

 had been run, for which his horse had not started. It was 

 held he could not recover it, because he had given no notice 

 before the race ; and his Lordship said, " Even if the 

 plaintiff had given notice in due time that he should 

 require his stake to be returned, this being a legal horse 

 race, I have great doubts that it would be recoverable, 

 the agreement being that it should be deposited to abide 

 the event, which agreement cannot, as it seems to me, be 

 varied without the assent of all parties. But here there 

 was no demand made ; no rescission of the contract before 

 the race " (li). 



And where before 8 & 9 Vict. c. 109, the sum of ten 

 shillings was deposited with a stakeholder to abide the event 

 of a foot race, Mr. Baron Parke said, " The transaction is 

 valid and the contract binding ; and therefore one of the 

 parties cannot determine it by a simple countermand, without 

 the consent of all the other parties depositing " {v). 



After the passing of 8 & 9 Vict. c. 109, where two 

 persons agreed to run a foot race, and each of them deposited 

 10/. with a 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 ; a foot race being a lawful 

 game, sport, or pastime within the meaning of the proviso 

 contained in section 18 of the 8 & 9 Vict. c. 109 (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 lawful game, sport, pastime, or exercise. And this 



(«) Marryat v. Bvoderiok, 2 M. & "R\ 729. 



"W. 369. See also Brown v. Orer- (.i.) Batty 



bury, 25 L. J., Ex. 169. 818. 



(v\ Eiiury y. Bicharcls, 14 M. & 



Marriott, 5 C. B. 



