402 WAGERS. 



totally unconnected with its actual value. Thus in a case 

 in which the plaintitf and defendant, while conversing as 

 to some rags, which the plaintiff proposed to sell, and 

 defendant to buy, disputed as to the price of a former lot 

 of rags, the plaintiff asserting the price to have been 

 lower than the defendant asserted it to have been. They 

 agreed that the question should be referred to M., a spirit 

 merchant, and that whichever party was wrong, should pay 

 M. for a gallon of brandy, and that if the plaintiff was 

 right, the price of the lot now on sale should be 6s. per cwt., 

 but, if the defendant was right, it should be 3.s. per cwt. 

 M. decided that the plaintiff was right. The plaintiff 

 thereupon sent the rags to the defendant, but the defendant 

 refused to accept them at 6s., offering 5s. An action 

 having been brought for goods bargained and sold, it was 

 held by the Court of Queen's Bench, that this was a wager- 

 ing contract, which could therefore not be enforced by legal 

 process, and that it made no difference that there was a real 

 intention to part with the goods (o). 



An agreement for the sale of a horse for 200/. if he 

 trotted eighteen miles within an hour, within a month, and 

 for Is. if he failed to accomplish the task, was held to be 

 nothing more nor less than a mere wagering contract (p). 

 Money ad- If money is advanced upon the security of a deed in 



stiuulation'^ pursuance of a stipulation or agreement between the 

 plaintiff and defendant, that out of it money lost by the 

 defendant to the plaintiff on betting transactions should be 

 paid to the plaintiff, it is a mere colourable loan and evasion 

 of the statute, and the deed is invalid ; but if there be no 

 such stipulation or agreement, and the plaintiff advance 

 the money as a loan for the defendant to dispose of as he 

 pleased, though the plaintiff expected to be paid out of the 

 money so lent, the deed is valid {q). 

 Rescission of In Wikon V. Cole (r), the plaintiff had agreed to take the 



toing* ^^ defendant's house, and had paid a deposit of 2bl. After- 

 wards the defendant offered the plaintiff 25/. to be off the 

 bargain. They then tossed whether the defendant should 

 pay the plaintiff 50/., or 75/. The defendant won, and when 

 he was sued for the 50/ and the 25/. deposit, set up that 

 the contract of rescission was a wagering one and therefore 

 void under the statute. The jury found that the deposit was 



(o) Sourke v. Short, 5 E. & B. (q) Rill v. Fox, 4 H. & N. 459 



904. —Ex. Ch. 



(p) Brogdm v. Marriott, 3 Ring. Ir) 36 L. T., N. S. 702. 



N. C. 88. 



