[IN THE COURT OF APPEAL.]

DIGGLE v. HIGGS.

Gaming - 8 & 9 Vict. c. 109, s. 18 - Money deposited with Stakeholder when recoverable - Wager.

An agreement to walk a match for £200 a side, the money being deposited with a stakeholder, is a wager, and null and void under 8 & 9 Vict. c. 109, s. 18. And the deposit of the money is not a subscription or contribution for a sum of money to be awarded to the winner of a lawful game within the proviso of that enactment: and although the winner of the match cannot sue the loser or the stakeholder to recover the stakes, yet a depositor may maintain an action to recover back the share deposited by him with the stakeholder.

The plaintiff and one S. agreed to walk a match for 200l. a side, and each deposited 200l., with the defendant to be paid to the winner. S. won the match. The plaintiff, after the determination of the match, but before the money was paid over to S., demanded the sum deposited by him from the defendant:-

Held, that the plaintiff was entitled to recover his share of the deposit from the defendant.

Batty v. Marriott (5 C. B. 818) overruled.

ACTION to recover from the defendant the sum of 200l.

At the trial before Huddleston, B., at the Manchester Spring Assizes, 1877, the following facts appeared in evidence:-

On the 28th of July, 1876, the plaintiff and one Simmonite entered into the following agreement, which was signed by both

parties:- "Articles of agreement between Simmonite and T. Diggle, to walk at Higginshaw Grounds, Oldham, on the 19th of October, 1866, for 200l. a side. T. Diggle to receive 100 yards start in one mile. 25l. a side down in the hands of C. Higgs, stakeholder; second deposit, 25l. each, to be made on August 5, at Unwin's, up to 9 o'clock; third deposit of 50l. each on September 16; and the final 100l. each to be made at 12 o'clock, the day of walking. The men to be on their marks at 10 o'clock. All the money to be deposited in C. Higgs' hands. Perkins referee, and C. Higgs final stakeholder and pistol-firer. Either parties not agreeing to these articles to forfeit the money down."

Pursuant to this agreement the defendant received 200l. down from each of the competitors. On the 19th of October the walking match took place, and the referee, Perkins, decided that Simmonite had won the match. On the 21st of October, before the defendant had paid over the stakes to Simmonite, the plaintiff's solicitor gave the defendant a written notice not to pay Simmonite, and demanded a return of the sum of 200l. deposited by the plaintiff with the defendant. Subsequently the defendant, pursuant to the referee Perkin's decision, paid the whole of the 400l. to Simmonite.

These facts being admitted, after argument, the learned judge, on the authority of Batty v. Marriott (1), directed the judgment to be entered for the defendant, on the ground that the case was within the proviso in s. 18. (2)

Edwards, Q.C., for the plaintiff. The question is whether the plaintiff having demanded the sum deposited with the defendant

(1) 5 C. B. 818.

(2) By 8 & 9 Vict. c. 109, s. 41, all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void; 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; provided always that this enactment shall not be deemed to apply 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.

as stakeholder before he has paid it over, but after the event has happened, can recover it back. According to the authorities it is clear that he can. In Hastelow v. Jackson (1) Bayley, J., says: "If a stakeholder pays over money without authority from the party and in opposition to his desire he does so at his peril." That statement of the law was approved of in Hampden v. Walsh (2), and that case is a direct authority for the plaintiff. By 8 & 9 Vict. c. 109, s. 18, all contracts by way of gaming or wagering are null and void, and it makes no difference in the present state of the law whether the wager is legal or illegal, even assuming a foot-race to be a legal game, the plaintiff having demanded his deposit before it was paid over is entitled to recover it from the defendant. Batty v. Marriott (3) is, no doubt, an authority for the defendant, but that case was disapproved of in the Court of Appeal in Batson v. Newman. (4) It will be contended for the defendant that the payment of the money to the defendant is "a subscription or contribution for or towards any plate, prize, or sum of money to be awarded to the winner of a lawful game, sport, pastime, or exercise" within the meaning of the proviso in s. 18. But in this case the agreement between the parties is a wager; the one bets the other that he will beat him in a walking-match; the persons who deposit the money are personally interested in an event which is uncertain; it is a wager between the two persons, and not within the proviso. Varney v. Hickman (5), Martin v. Hewson (6), and Graham v. Thompson (7) are also authorities to shew that the plaintiff is entitled to recover back the money deposited.

C. Russell, Q.C., and Crompton, for the defendant. The agreement between the plaintiff and Simmonite is not a wager, and the money paid to the defendant is a subscription towards a sum of money to be awarded to the winner of a lawful game within the proviso in s. 18. The plaintiff therefore cannot recover in this action. This question has been decided in Batty v. Marriott. (3) It was there held that a foot race was a legal game, and that a sum of money which each of two persons deposited with a stakeholder

(1) 8 B. & C. at p. 225.

(2) 1 Q. B. D. 189.

(3) 5 C. B. 818.

(4) 1 C. P. D. 573.

(5) 5 C. B. 271; 17 L. J. (C.P.) 102.

(6) 10 Ex. 737; 24 L. J. (Ex.) 174.

(7) 2 Ir. Rep. C. L. 64.

to abide the event of a foot-race to be run between them was a subscription for a sum to be awarded to the winner of a lawful game. Batson v. Newman (1) is distinguishable. There there was a bet between two persons that a horse would cover a certain distance in a given time; it was a race against time; it is clear that was not a lawful game. The earlier decisions proceeded on the ground that a stakeholder is in the position of an agent or arbitrator; he receives the money in that character, his authority may be revoked before the event has happened, but a revocation is too late after it has come off. A walking match is not unlawful, and a subscription of money to be paid to the winner clearly comes within the proviso. Two persons may subscribe towards a sum of money, and the circumstance that there are only two persons who subscribe, and that they are competitors, does not make it the less a subscription. The words of the proviso are "subscription or contribution." Subscription would include the money of competitors, be they two or more, and contribution would be the money received from third persons. After the event has come off the defendant holds the money not for the persons who have deposited it, but for the winner; the winner alone, if anybody, can sue for it. If the winner cannot sue, neither can the plaintiff, for the second clause of s. 18 provides that no suit shall be brought for recovering any sum of money which shall have been deposited in the hands of any person to abide the event on which the wager shall have been made. No doubt Varney v. Hickman (2) and Martin v. Hewson (3) have decided that that clause relates to the case where a winner brings an action against a loser, seeking to recover the wager from the loser; but in Savage v. Madder (4) Martin, B., expresses an opinion that no action of any kind can be brought with respect to betting contracts, the object of the Act being to prevent trials in courts of law with respect to betting transactions, and in Hampden v. Walsh (5) the Court seem to invite a review of these decisions in a Court of Appeal. In all the cases in which the money has been recovered back, except Varney v. Hickman (2), the games were illegal.

(1) 1 C. P. D. 573.

(2) 5 C. B. 571.

(3) 10 Ex. 737; 24 L. J. (Ex.) 174.

(4) 36 L. J. (Ex.) 178.

(5) 1 Q. B. D. 189.

Edwards, Q.C., was not heard in reply.

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 200l. 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 200l. deposited by the loser, and receive back his own 200l. Now upon that, what is the construction of s. 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. That 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 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."

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 neutralising the enactment. The legislature, I think, never intended to 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 (1), 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 (2) came before this Court, although there was a certain degree of difference between that case and Batty v. Marriott (1), yet it is obvious that Batty v. Marriott (1) 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 s. 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 s. 18 has taken away his right to maintain an action under that part of the section which says no suit shall be brought for recovering money which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made." On that I must observe, that in Hampden v. Walsh (3) the Queen's Bench Division appeared to have been of opinion that an action under similar circumstances could be maintained; and in Batty v. Marriott (1) the objection was not taken. Be that as it may, I am of opinion that that objection cannot be maintained. The section amounts to this: all contracts by way of gaming and wagering are null and void; and then, dealing with those contracts, it says that no action shall be brought with respect to them: that is to say, all gaming contracts are void,

(1) 5 C. B. 818.

(2) 1 C. P. D. 573.

(3) 1 Q. B. D. 189.

and the winner of the game or wager shall not maintain a suit against his antagonist or the stakeholder. This construction makes one member of the section in unison with the other. What legal right there mag be to recover back money paid under a contract that is void, the statute leaves it untouched. The decision of the learned judge was wrong, and I think that the judgment ought to be entered for the plaintiff.

COCKBURN, C.J. I think that the judgment in this case ought to be entered for the plaintiff I concur in thinking that the agreement is substantially a wager. I further think that the case is not protected by the proviso at the end of s. 18. In my opinion that proviso was intended to meet the case of bon‰ fide contributions to a prize to be given to the winner in some lawful competition, but not to money deposited by way of wager. I confess I entertain considerable doubt on the other question. If it were res integra I should have thought that this action was excluded by the provision in s. 18, which says that no suit shall be brought to recover any 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. I think that what the statute was intended to effect there was that whereas, but for the statutory provision, after the event had come off a winner might insist on having the money paid to him, or, before the event, the person who had deposited the money might have recovered it back from the stakeholder, the statute was intended to strike at all wagers: it was intended to hit both these possibilities, in order that the time of the Court should not be taken up with litigation of this sort. The intention was that the man who won the wager should not recover the stakes, or the man who had deposited his money get it back again; that neither the one nor the other should receive any assistance from the courts, but should get their money as best they could. But whatever may be my own opinion, this point has been before two courts; once before the Court of Common Pleas in Varney v. Hickman (1), and again before the Court of Exchequer in Martin v. Hewson (2), and both courts put a construction on this enactment contrary to the view I entertain.

(1) 5 C. B. 271; 17 L. J. (C.P.) 102.

(2) 10 Ex. 737; 24 L. J. (Ex.) 174.

I am not desirous to disturb the law as thus settled, and I do not wish to take further time to consider the question.

BRAMWELL, L.J. I agree in opinion with the Lord Chancellor. I think the construction put upon this section is the right one. I only wish to add that the clause of s. 18, that "no suit shall be brought for recovering money won upon a wager" is unnecessary, and might have been left out of the statute; it seems to me to be wholly superfluous. I think the judgment entered for the defendant wrong, and that the plaintiff is entitled to recover his deposit from the defendant.

Solicitors for plaintiff: Richards & Walker, for Mellor, Oldham.

Solicitors for defendant: Singleton & Tattershall.