Batty v. Mar riott overruled by Diggle v. Higgs. Judgment of L. C. persons agreed to run a Foot Race, and each of them deposited 107. with the third person, the whole 207. to be paid by him to the Winner of the Race; it was held by the Court of Common Pleas that the loser could not recover back his deposit from the Stakeholder (r). This case appears to have been decided on the ground that the game was not an unlawful one, and that there was nothing in the case that was struck at by the Act of Parliament; but the true test appears to be whether the deposit was in the nature of a wager or of a subscription or contribution to a prize to be awarded to the winner of any lawful game, sport, pastime, or exercise. And this has been so held by the Court of Appeal in the recent case of Diggle v. Higgs (y), overruling Batty v. Marriott (≈), on very similar facts. The law on the subject being very clearly laid down in the following judgment of Lord Cairns, L. C. : "The first question which we must ask ourselves is, was this contract a Wager? It seems to me beyond a doubt that it was a Wager; it was a Wager between two men for a walking match. They agreed to walk at the Higginshaw Grounds for 2007. a-side; it is not the less a Wager because the money was deposited with the defendant as Stakeholder. When the Wager was decided, the winner would be paid the 2007. deposited by the loser, and receive back his own 2007. Now upon that, what is the construction of sect. 18 of 8 & 9 Vict. c. 109? Is a contract of this kind excepted by the proviso? We start with this, that the contract was clearly a Wager, and was within the first part of the section. But the section says all contracts and agreements, whether by parol or in writing, by way of Gaming or Wagering, shall be null and void; and then there is a proviso which follows upon an intervening sentence in these words-'And no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to have been won upon any Wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made.' Then comes the proviso on which this question mainly rests-Provided always, that this enactment shall not be deemed to apply (x) Batty v. Marriott, 5 C. B. 818. (y) L. R., 2 Ex. D. 422; 46 L. J., Ex. 721; 37 L. T., N. S. 27; 25 W. R. 777. Reversing the de cision of Huddleston, B., 25 W. to any subscription or contribution, or agreement to subscribe or contribute, for or towards any plate, prize or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime or exercise.' to "It is clear that there may be in scores of forms 'subscriptions or contributions' towards a plate or prize without there being any Wager, and I cannot read this proviso, which has a natural and intelligible meaning, in a different way, and one which would have the effect of neutralizing the enactment. The legislature, I think, never intended say that there should be no action brought to recover a sum of money which shall have been deposited in the hands of any person to abide the event on which any Wager shall have been made, and yet that if the Wager is in the form of a subscription or contribution the winner may recover it. I read the proviso thus-Provided that so long as there is a subscription which is not a Wager, the second part of the section shall not apply to it.' There is no authority in favour of the view of the defendant, except Batty v. Marriott (a), and if that authority is to be followed, it cannot be denied it is a very strong authority for the defendant. What the Court had in their minds in that case was the question whether the Game was a lawful or an unlawful Game, and having come to the conclusion that it was a lawful Game, they were of opinion that there was nothing in the case which was struck at by the Act of Parliament, and that the Act was only intended to strike at unlawful Games. That view seems to me to be erroneous, and I think that the Court overlooked the first part of the section, which applies to all contracts, lawful or unlawful, by way of Gaming or Wagering. When Batson v. Newman (b) came before this Court, although there was a certain degree of difference between that case and Batty v. Marriott (a), yet it is obvious that Batty v. Marriott did not meet with approval. I cannot follow that case. I therefore think that, although there was a deposit of money, the contract in this case was a Wager, and that all the consequences which are imposed by sect. 18 on contracts by way of Wagering follow. "Then it is said that this is an action by a party to the contract, and that he has revoked the authority given to the defendant to pay over the money, on the ground that the contract is void, and that section 18 has taken away his (a) 5 C. B. 818. (b) L. R., 1 C. P. D. 573. Recovery of money paid on an illegal Contract. What the do. right to maintain an action under that part of the section If two parties enter into an illegal or void contract, and A person who has staked his money on an illegal or party should void transaction, and wishes to recover it, should do some act to put an end to the affair. And he should demand back his deposit before the illegal or void transaction has taken place (g), and the money has reached the other party's hands (ƒ), because if he does not, he permits the Stakeholder to dispose of it (h). Demand before the money is paid over. It was held in the case of Hastelow v. Jackson (ƒ) that where the event in such case has been decided, but before the money has been paid over, and one party expresses his dissent from the payment, he may recover it from the Stakeholder. For although the event has happened, yet the contract is not completely executed until the money has been paid over, and therefore the party may retract at any time before that has been done (i). Some doubt indeed has been thrown upon this case, Mr. Baron Alderson, in Mearing v. Hellings (k), saying of it, "I accede to its authority, though I think it a very strong decision. It does not convince me. It overcomes me.' And Pollock, C. B., in the same case said, "With respect to the case of Hastelow v. Jackson, I forbear saying anything about it at present; it is binding upon us until reviewed by a Court of Error. If the same question arose before me, I should certainly advise a bill of exceptions." And, in the case of M'Elwaine v. Mercer (1), Hastelow v. Jackson was held by the Irish Court of Common Pleas to be irreconcilable with the law as established by 8 & 9 Vict. c. 109, s. 18. But it has never been expressly overruled, and indeed with these exceptions it has been treated uniformly, both from the Bench and by text writers, as an authority (m). sufficient. If it be pleaded to an action, for Money had and received, Bringing an that the money was staked on an illegal Game, the plaintiff action not must show in answer that he demanded back the Stake before it was paid over, the mere bringing an action before payment over not being a sufficient demand (»). Where the paid over But although the contract be illegal or void, yet if the event happens, and the money is paid over by the Stake- money is holder without dispute, there is a complete execution of the contract, and the money cannot be reclaimed (o). If a person pays his entrance money to the Clerk of the Where a (i) Hastelow v. Jackson, 8 B. & C. 227. And see Hampden v. Walsh, L. R., 1 Q. B. D. 189; 45 L. J., Q. B. 238; 33 L. T., N. S. 852; 24 W. R. 607; Diggle v. Higgs, L. R., 2 Ex. D. 422; 46 L. J., Ex. 721; 37 L. T., N. S. 27; 25 W. R. 777-C. A. (k) Mearing v. Hellings, 14 M. & W. 712. (1) M'Elwaine v. Mercer, 9 Ir. Com. Law Reps. 13. The judgment in this case appears to be founded upon a misconception of the principle which rules the English decisions, and of the facts in the case of Hastelow v. Jackson. (m) Per Bramwell, B., Bone v. Ekless, 5 H. & N. 928. Per Cockburn, C. J., Hampden v. Walsh, L. R., 1 Q. B. D. 193; 45 L. J., Q. B. 238; 33 L. T.. N. S. 852; 24 W. R. 607; Diggle v. Higgs, L. R., 2 Ex. D. 422; 46 L. J., Ex. 721; 37 L. T., N. S. 27; 25 W. R. 777 -C. A. See also Selw. N. P. 12th ed. 97, and 2 Sm. L. C. 7th ed. 530. (n) Gatty v. Field, 9 Q. B. 431. (o) Hastelow v. Jackson, 8 B. & C. 226; and see Moore v. Cooper, before Mr. R. Gurney, Sheriffs' Court, Dec. 10, 1853. And per Erle, J., Q. B., N. P., Guildhall, in Pike v. Alcock, Jan. 26, 1858. without dis pute. Horse is disqualified. Where Owner knows the disqualification. Proper party Stakes. Course bonâ fide and without any attempt to impose upon the other subscribers, and then finds his Horse disqualified, may recover his Stake (p). he But the owner cannot recover his own Stake after the Race, if before the Race he knew that his Horse was disqualified. Thus where the conditions of a Race were that the Horses were not to be thorough-bred, nor to have started against thorough-bred Horses, nor to have run for a Plate, the plaintiff started his Mare Funny, and she came in first, but the Clerk of the Course refused to pay the Stakes, as it appeared that under the name of Flashy Moll she had started against thorough-bred Horses, run for Plates, and had won many Races. Upon this the plaintiff brought an action to recover back his own entrance money. However, Mr. Baron Vaughan said to the Jury, "It will be for you to say whether the plaintiff has been guilty of an attempt to impose upon the other subscribers to the Race by a misrepresentation of his Mare; for if so, he will not be entitled to recover back any share of the Stake. If the plaintiff knew of the disqualification of his Mare, the law will not assist him in the recovery of the deposit." A verdict was found for the defendant (p). A Stakeholder should pay the Stakes to the Winner or to receive the his Agent. For where the holder of a Ticket in a Derby Lottery sold it to the Plaintiff before the Race, and the Horse named in it was ultimately declared the Winner, it was held that, even supposing the Lottery were legal, the plaintiff could not sue the Stakeholder, in an action for Money had and received, for the amount to which the holder was by the conditions of the Lottery entitled. Because a Ticket of this sort could not be negotiable like a Promissory note, and parties could not, by agreement among themselves simply, make a transfer of such a Ticket, so as to give the assignee a right of action (q). But now, by sect. 25, sub-sect. 6 of the Judicature Act, 1873 (36 & 37 Vict. c. 66), the owner of any debt or other chose in action may assign the same to a third person absolutely, 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. Under what The actual Winner may maintain an action against a circumstances Stakeholder for all moneys actually in his hands, and (p) Weller v. Deakins, 2 C. & P. 618; Goldsmith v. Martin, 4 M. & (9) Jones v. Carter, 15 L. J., Q. B. 96. |