WAGERS. 



403 



not in contemplation of the parties, but that a rescission of 

 the contract was in fact made ; and it was held that the 

 plaintiff was entitled to recover both the 50/. as considera- 

 tion for the rescission, and also the 251. deposit. 



In a case where the plaintiff and defendant agreed that 

 the plaintiff should take the defendant's mare in exchange 

 for that of the plaintiff; and that the defendant should 

 give the plaintiff half of the winnings of her first two races, 

 or, in case she should be sold before then, that the defen- 

 dant should pay the plaintiff one-third of what she should 

 have been sold for; it was held by the Irish Court of 

 Common Pleas, that the above agreement, being one simply 

 to give an increased price for the mare, upon the occurrence 

 of a state of facts, which might add to her value, was a 

 legal contract, and not in the nature of a wager (.s). 



"Where the defendants, the proprietors of a medical pre- 

 paration called "The Carbolic Smoke Ball" issued an 

 advertisement in which they offered to pay 100/. to any 

 person who contracted the influenza after having used one 

 of their smoke balls in a specified manner and for a specified 

 period, and the plaintiff on the faith of the advertisement 

 bought one of the balls, and used it in the manner and for the 

 period specified, but nevertheless contracted the influenza, 

 it was held that these facts established a contract by the 

 defendants to pay the plaintiff 100/. in the event which had 

 happened, and that such contract was neither a wager within 

 8 & 9 Vict. c. 109, nor a policy within 14 Geo. 3, c. 48, 

 s. 2, as to which see post, p. 413 ; and that, therefore, the 

 plaintifi' was entitled to recover (i). 



"Where an action was brought to recover a sum of money 

 lost by playing in the ordinary way with two persons at 

 billiards, the players having stalled sums of money on suc- 

 cessive games ; it was held that such a transaction was not 

 within the proviso of the 8 & 9 Vict. c. 109, s. 18, inasmuch 

 as the players did not contribute or agree to contribute any 

 sum to be awarded to the winner (u) . 



Where the plaintiff and "W. deposited each 500/. with the 

 defendant, on an agreement that if "W. on or before the 15th 

 of March, 1870, proved the convexity or curvature to and 

 fro of the surface of any canal, river, or lake, by actual 



Price of 

 mare to be 

 increased, 

 if she won, 

 by her 

 winnings. 



Offer by 



advertisement. 



Acceptance. 



BUliard 

 match. 



Eotundity 

 of earth. 



(s) Crofton v. Colgan, 10 Ir. C. L. 

 E. 133. 



(t) Carlill T. Carbolic Smoke Ball 

 Co., [1893] 1 Q. B. 256; 62 L. J., 

 a. B. 257; 67L. T.,N. S. 837; 41 



W. E. 210, affirming the decision of 

 Hawkins, J., [1892] 2 Q. B. 484. 



(«) Parsotis V. Alexander, 1 Jur. 

 N. S. 660. 



D D 2 



