WAGEKS. 401 



whether he will win or lose being dependent on the issue 

 ot the event, and, therefore, remaining uncertain until that 

 issue is known. If either of the parties may win but 

 cannot lose, or may lose, but cannot win, it is not a wagering 

 contract. 



It is also essential that there should be mutuality in the 

 contract. For instance, if the evidence of the contract is 

 such as to make the intentions of the parties material in 

 the consideration of the question, whether it is a wagering 

 one or not, and those intentions are at variance, those of 

 one party being such as if agreed in by the other would 

 make the contract a wagering one, whilst those of the other 

 would prevent it from becoming so, this want of mutuality 

 would destroy the wagering element of the contract, and 

 leave it enforceable at law as an ordinary one : see Grize- 

 wood\. Blane (I), Thacker v. Hardy (m), Blaxton v. Pye (n). 

 No better illustration can be given of a purely wagering 

 contract than a bet on a horse-race. A. backs Tortoise 

 with B. for 100^. to win the Derby. B. lays ten to one 

 against him — that is, 1000 to 100. How the event will 

 turn out is uncertain until the race is over. Until then 

 A. may win lOOOi or he may lose 100/. ; B. may win 100/. 

 or he may lose 1000/. ; but each must be a winner or a 

 loser on the event. Under the wager neither has any 

 interest except in the money he may lose or win by it. 

 True it is that one or both of the parties may have an 

 interest in the property of the horse ; but that interest is 

 altogether apart from the bet, and each party is in agree- 

 ment with the other as to the nature and intention of his 

 engagement .... One other matter ought to be mentioned, 

 namely, that in construing a contract with a view to deter- 

 mining whether it is a wagering one or not, the Court will 

 receive evidence in order to arrive at the substance of it, 

 and will not confine its attention to the mere words in 

 which it is expressed, for a wagering contract may be some- 

 times concealed under the guise of language which, on the 

 face of it, if words were only to be considered, might con- 

 stitute a legally enforceable contract." 



The test applicable in some cases to the determination of "Wager under 

 the question whether a contract is a wagering contract or ^™^® ° ^^ ®' 

 not within the statute, is, whether the price of the sub- 

 ject-matter is to vary according to the issue of an event 



[T) 11 C. B. 526. [n) 2 WHs. 309. 



\m) 4 Q. B. D. 685. 



O. D D 



