378 EACING, STAKEHOLDEKS AND STEWARDS. 



of any person to abide tlie event on wtich any wager shall 

 have been made, and yet that if the wager is in the form 

 of a subscription or contribution the winner may recover it. 

 I read the proviso thus — ' Provided that so long as there is 

 a subscription which is not a wager, the second part of the 

 section shall not apply to it.' There is no authority in 

 favour of the view of the defendant, except Batiy^ v. Mar- 

 riott (a), and if that authority is to be followed, it cannot 

 be denied it is a very strong authority for the defendant. 

 What the Court had in their minds in that case was the 

 question whether the game was a lawful or an unlawful 

 game, and having come to the conclusion that it was a 

 lawful game, they were of opinion that there was nothing 

 in the case which was struck at by the Act of Parliament, 

 and that the Act was only intended to strike at unlawful 

 games. That view seems to me to be erroneous, and I 

 think that the Court overlooked the first part of the section, 

 which applies to all contracts, lawful or unlawful, by way 

 of gaming or wagering. When Batson v. Newman (b) 

 came before this Court, although there was a certain 

 degree of difference between that case and Batty v. Mar- 

 riott (a), yet it is obvious that Batty v. Marriott did not 

 meet with approval. I cannot follow that case. I there- 

 fore think that, although there was a deposit of money, the 

 contract in this case was a wager, and that all the con- 

 sequences which are imposed by section 18 on contracts by 

 way of wagering follow. 



" Then it is said tliat this is an action by a party to the 

 contract, and that he has revoked the authority given to 

 the defendant to pay over the money, on the ground that 

 the contract is void, and that section 18 has taken away his 

 right to maintain an action under that part of the section 

 which says no suit shall be brought for recovering money 

 which shall have been deposited in the hands of any person 

 to abide the event on which any wager shall have been 

 made. On that I must observe that in Hampden v. 

 Walsh (c) the Queen's Bench Division appeared to have 

 been of opinion that an action under similar circumstances 

 could be maintained ; and in Batty v. Marriott (d), the 

 objection was not taken. Be that as it may, I am of 

 opinion that that objection cannot be maintained. The 



(a) 5 C. B. 818. Q. B. 238 ; 33 L. T., N. S. 852 ; 24 



(li) 1 C. P. D. 573; 25 W. R. W. K. 607. 

 85— C. A. {(l) 5 C. B. 818. 



((■) 1 (J. B. D. 189; 45 L. J., 



