The “Proviso.”
III. We now come to the last part of the section, commonly called the “Proviso,” which says 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.”
There are three series of questions on this proviso.
I. As to what is “a subscription or contribution to a prize”?
II. As to when a person is “the winner” within the statute?
III. What are lawful games, sports, &c.?
Subscription or contribution.
I. What is the meaning of a subscription or contribution to a prize?
In many of the cases the line is very fine between such subscription and a deposit of sweepstakes. In Batty v. Marriott,[[184]] a foot-race was agreed upon between plaintiff and A for £10 a side, and each deposited £10 with the defendant as stakeholder. A was declared winner, but plaintiff disputed the decision and demanded back his stakes. The Court held that the provisions of 16 Car. II. and 9 Anne relating to the question, were repealed by 8 & 9 Vict., c. 109; and that although the contract was in the nature of a wager, still the Act laid down no rule with respect to the number of subscribers necessary to form “a subscription to a prize.” It made no difference between the case of two or fifty. They all intimated that their decision went farther than the Legislature intended to go—consequently, as a foot-race is a lawful game, and as one party who has paid money on a legal contract cannot recall it without the consent of the others, they held that the plaintiff could not recover his stake.
If this case were good law, it would follow that the real test to be applied is, whether or not the money were deposited before the event came off in the hands of a stakeholder.