STAKEHOLDERS. 377 



has been so held by the Court of Appeal in the comparatively 

 recent case of Diggle v. Eiggs {y), overruling Batty v. 

 Marriott (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 Judgment of 

 this contract a wager ? It seems to me beyond a doubt that ^°^ Caims, 

 it was a wager ; it was a wager between two men for a walk- 

 ing match. They agreed to walk at the Higginshaw 

 Grrounds for 200/. a-side ; it is not the less a wager because 

 the money was deposited with the defendant 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 section 18 of 8 & 

 9 Vict. 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 gaming or wagering, shall be 

 null and void ; and then there is a proviso which follows 

 upon an intervening sentence in these words — ' And no suit 

 shall be brought or maintained in any court of law or equity 

 for recovering any sum 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 

 to any subscription or contribution, or agreement to subscribe 

 or contribute, for or towards any plate, prize or sum of money 

 to be awarded to the winner or winners of any lawful game, 

 sport, pastime, or exercise.' 



" It is clear that there may be in scores of forms ' sub- 

 scriptions or contributions ' towards a plate or prize with- 

 out there being any wager, and I cannot read this proviso, 

 which has a natural and intelligible meaning, in a different 

 way, and one which would have the effect of neutralizing 

 the enactment. The Legislature, I think, never intended 

 to say that there should be no action brought to recover a 

 sum of money which shall have been deposited in the hands 



iy) 2 Ex. D. 422 ; 46 L. J., Ex. 342; 49 L. J., P. C. 49 ; 42 L. T., 



721; 37 L. T., N. S. 27; 2.5 "W. E. N. S. 103; 28 W. R. 479, where 



777. Reversing the decision of Diggle v. HiqgK was npprored. 



Huddlestou, B.,2.5 "VV. E. 607. And (z) 5 C. li. 818. 

 see Trimble v. Hill, 5 App. Cas. 



