Wagers at

common law.

WAGERS.

ALL Wagers which were not against the principles of morality, public decency or sound policy, were held good at common law; and a Wager or Bet was defined to be a contract entered into without colour or fraud, between two or more persons, for a good consideration, and upon mutual promises to pay a stipulated sum of money, or to deliver some other thing to each other, according as some prefixed and equally uncertain contingency should happen within the terms upon which the contract was made (a).

(a) Jones v. Randall, Cowp. 39; 2 Hawk. c. 92.

leon.

A Wager by which A. received from B. one hundred Wager on the guineas on the 31st of May, 1802, in consideration of pay- life of Napoing him a guinea a day so long as Napoleon Bonaparte (then First Consul of the French Republic) should live, was held to be void on the grounds of immorality and impolicy. This Bet arose out of a conversation upon the probability of his coming to a violent death by assassination or otherwise (b).

result of an election.

So also a Wager made, before the poll began, between Wager on the two voters with respect to the event of an election of a member to serve in Parliament, was held to be void, as such contract is corrupt in the eye of the law and against the fundamental principles of the constitution (c).

Race no

Until the late Act of Victoria (d), Wagers above a cer- Betting on a tain amount were declared to be illegal by Statute; now, longer illegal. however, the illegality no longer exists, and therefore longer illegal. Betting on a Race may now be practised to any extent. without any penalty being incurred (e).

But by the above-mentioned Act (f) it is provided, that Bets not re"all contracts or agreements, whether by parol or in writ- coverable. ing, by way of Gaming or Wagering, shall be null and roid; 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 be 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; but this enactment is not "to apply to any subscription or contribution, or agreement to subscribe or contribute, for or toward any Plate, Prize or sum of Money, to be awarded to the winner or winners of any lawful Game, Sport, Pastime, or Exercise" (f).

event.

However, a party depositing a sum of money with a Deposit reStakeholder, by way of Wager and not as a Stake (g), may coverable recover his money back, if he give Notice to the Stake- before the holder, before the event comes off, that he shall break off the Bet, and require him to return his money. In a case tried before Chief Justice Wilde at Nisi Prius in the Court of Common Pleas, Westminster, Nov. 30th, 1846, it appeared that a match in harness had been made between one Isaacs, a Jew dustman, and the plaintiff, who was a Cab

(b) Gilbert v. Sykes, 16 East, 150.

(c) Allen v. Hearn, 1 T. R. 56. (d) 8 & 9 Vict. c. 109, s. 15.

(e) See the Rules of Racing, Appendix, Part 3.

(f) 8 & 9 Vict. c. 109, s. 18.

(g) Distinction taken in Connor v. Quick, cited 2 W. Bla. 708.

Decision of

owner, and on the event of this Race they had made a Wager of 201. a-side, which each party had deposited with the defendant, a Publican. Previous to the Race, the plaintiff gave Notice to the defendant that he should “break off" the Bet, and he should require back his money. The defendant however did not return it, but paid the whole deposit to the other party after he had walked over the course; an action was then brought to recover the 207. which had been deposited by the plaintiff.

At the trial, it was contended on the part of the defendant that, under 8 & 9 Vict. c. 109, s. 18, the action was not maintainable. But the learned Judge overruled the objection, and held that the Statute was not meant to apply to a case like the present, in which the party depositing the money had given Notice to the Stakeholder to pay him it back before the time had arrived for the Wager to be decided. And the Jury, on the evidence, found a verdict for the plaintiff (h).

A rule nisi for a new trial, on the ground of misdirecthe Court of tion, was afterwards obtained in the Court of Common Pleas, and in discharging the rule Mr. Justice Maule said:

Common

Pleas.

"Looking at the whole section (i), critically and grammatically, I am of opinion that it does not apply to any action like this, where a party seeks to recover his deposit from a Stakeholder upon a repudiation of the Wager. This cannot be considered as an action brought for recovering 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

(h) Varney v. Hickman, Nov. 30, 1846; 5 C. B. 281.

(i) 8 & 9 Viet. c. 109, s. 18, Appendix.

ought to be determined in favour of the plaintiff. 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 deposited 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 (j).

contract.

The test applicable in some cases to the determination What is a of the question whether a Contract is a Wagering Con- Wagering tract or not within this Statute, is, whether the price of the subject-matter is to vary according to the issue of an event totally unconnected with its actual value. Thus in a case in which the plaintiff 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 3s. 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 Wagering 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 (k).

If money is advanced upon the security of a deed in Money adpursuance of a stipulation or agreement between the vanced with plaintiff and defendant, that out of it money lost by the stipulation. 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 (1).

Price of Mare to be increased, if she won, by her winnings.

Billiard

Match.

Rotundity of earth.

Trotting

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 defendant 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 (m).

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 staked sums of money on successive 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 (n).

Where the plaintiff and W. deposited each 5007, 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 measurement and demonstration to the satisfaction of the defendant, W. would receive the two sums deposited; but if W. failed in doing this, the two sums were to be paid to the plaintiff-it was held that the agreement was a wager, and consequently null and void within the statute (o).

So where H. and the plaintiff deposited 501. each with against time. the defendant and entered into a written agreement that the 1007. should be paid to H. if his horse trotted eighteen miles in an hour, and if not then to the plaintiff; it was held that the transaction was simply a wager, and did not come within the proviso in 8 & 9 Vict. c. 109, s. 18, as to contributions to a prize or sum of money to be awarded to the winner of any lawful game, sport, pastime or exercise (p).

Agreement with Tipster.

And a wager under the disguise of a contract to pay a

(m) Crofton v. Colgan, 10 Ir. Com. Law. Reps. 133.

(n) Parsons v. Alexander, 1 Jur., N. S. 660.

(o) Hampden v. Walsh, L. R., 1Q. B. D. 189; 45 L. J., Q. B. 238;

33 L. T., N. S. 852; 24 W. R. 607.

(p) Batson v. Newman, L. R., 1 C. P. D. 573; 25 W. R. 85. And see Coombs v. Dibble, L. R., 1 Ex. 248; 35 L. J., Ex. 167; 14 L. T., N. S. 415.