382 



RACING, STAKEHOLDEKS AND STEWARDS. 



Under what 

 circumstances 

 winner may 

 maintain an 

 action. 



A cricket 

 match. 



A wrestling 

 match. 



Loser may 

 recover his 

 stake where 

 there has 

 heen fraud. 



the same to a third person ahsolutely, and place such person 

 in the position he himself was in at the time of the transfer, 

 and with the same legal and equitable rights. 



The actual winner may maintain an action against a 

 stakeholder for all moneys actually in his hands, and 

 against the party who has agreed to suhscrihe or contribute 

 to the stakes, where it has not been paid up, and this how ■ 

 ever 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 was 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 (t). 



Where five shillings a head had been staked by the 

 eleven players on each side in a cricket match, an action 

 was tried, and the winners recovered the stake from the 

 stakeholder (j«). 



But Lord Tenterden refused to try an action to recover 

 back a deposit on a wrestling match (x). 



Where fraud has been practised the Icser of a race may 

 recover his stake from the stakeholder, and produce the 

 agreement without a stamp. In the following case the 

 plaintiff entered into a written agreement with a third 

 party to race their horses upon certain tei'ms, and he de- 

 posited the amount of his stake with the defendant. The 

 race was run and the plaintiff's horse was beaten ; but he 

 afterwards discovered that the whole transaction was a con- 

 cocted fraud. After notice had been given not to pay over 

 the amount, an action was brought to recover the stakes, 

 and it was held by the Court of Exchequer, that the written 

 instrument, although unstamped, was properly admitted in 

 evidence in proof of the fraud {y). 



It) Savage y. Madder, 36 L. J., 

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

 W. E. 910. And see JDiggle v. 

 Higgs, 2 Ex. D. 422 ; 46 L. J., Ex. 

 721; 37 L. T.,N. S. 27. 



ill) Walpole Y. Samiden, 7 D. & 



E. 130. 



(a-) Kennedy v. Gad, 3 C. & P. 

 376. 



(y) Holmes v. Sixsmith, 7 Ex. 

 802. 



