400 WAGEES. 



This cannot be considered as an action brought for re- 

 covering a sum of money alleged to be won upon a 

 wager ; nor do I think it is an action brought to recover 

 a sum deposited in the hands of the defendant to abide the 

 event of a wager. That must necessarily mean an action 

 to be sustained on the ground of the existence and the 

 determination of the wager. Here the money is not 

 claimed on that ground. Quite the reverse. The plaintiff 

 insists that the sum he seeks to recover is money which 

 belongs to him, and which the defendant has no right to 

 keep, and which he is under no legal or moral obligation 

 to pay to anybody else. As soon as the defendant received 

 notice from the plaintiff that he declined to abide by the 

 wager, the money ceased to be money deposited in the 

 hands of the former to abide the event, and became money 

 of the plaintiff's in his hands, without any good reason for 

 detaining it. Upon these grounds I think this point 

 ought to be determined in favour of the plaintifl'. 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 (i). 

 "What is a To adopt the language of Hawkins, J., in delivering his 



■wagering considered judgment in Garlill v. Carbolic Smoke Ball Co. {k). 



" It is not easy to define with precision what amounts to a 

 wagering contract, nor the narrow line of demarcation 

 which separates a wagering from an ordinary contract, but 

 according to my view, a wagering contract is one by which 

 two persons, professing to hold opposite views touching 

 the issue of a future uncertain event, mutually agree that, 

 dependent upon the determination of that event, one 

 shall win from the other, and that other shall pay or hand 

 over to him, a sum of money or other stake ; neither of 

 the contracting parties having any other interest in that 

 contract than the sum or stake he will so win or lose, there 

 being no other real consideration for the making of such 

 contract by either of the parties. It is essential to a wagering 

 contract, that each party may under it either win or lose, 



(J) Varney v. Hickman, 5 C. B. (A-) [1892] 2 Q. B. 484, at pp. 490, 



282. And Bee further, ante, pp. 376 491, affirmed in C. A., [1893] 1 Q. B. 

 —380, " Stakeholders." 256. 



