But the decision was not regarded with much favour in the later case of Parsons v. Alexander.[[185]] Plaintiff sued on an account stated for money which had been won at billiards. Defendant having, to start with, a few shillings in his pocket played the plaintiff for a certain sum and lost. They then played again for “double or quits,” and defendant was again unsuccessful. This was repeated until the defendant lost to the plaintiff about £65, for which he gave an I O U. The Court, while intimating doubts as to the correctness of Batty v. Marriott, distinguished the case before them on the ground that the parties had played entirely on credit, and had not, as in Batty v. Marriott, deposited the stakes before the event came off.
Per Erle, J.: “The distinction is between gaming and cases where a person either pays down a contribution to a stake, or holds himself forth as having contributed.” Per Crampton, J.: “This was an agreement, if you win, I pay you; if you lose, you pay me.”
This distinction suggested by the Court of cases where the money is actually deposited by the parties who play, and cases where it is not, seems also to have occurred to Maule, J., in Johnson v. Lansley:[[186]] “The 18th section seems to treat the money which is in a man’s pocket at the time as the reasonable limit to which he may lawfully gamble.” So, too, under the older statutes of Charles II. and Anne, as interpreted by Applegarth v. Colley, there was no objection to gaming so long as the stakes were prepaid.
Some of the Court said that but for Batty v. Marriott, they would have thought the proviso was confined to subscriptions by outside parties to a prize, and not to deposits by the players themselves. In Brown v. Overbury,[[187]] the plaintiff was a subscriber to a race. The stewards could not agree as to the winner. Plaintiff claimed that his horse had won, and brought an action against the stakeholder to recover the stakes, thereby submitting the decision of the race to the jury. At the trial it was contended that he was, at all events, entitled to recover his own contribution. It was not even argued that this case was within the “proviso” as a contribution to a prize. The Court held that as it had not been shown that it had become impossible to obtain the decision of the stewards, he could not call on the stakeholder to return his contribution.
In Irwin v. Osborne,[[188]] plaintiff agreed with the defendants that a match should be run between a mare, the property of M, and a mare the property of the plaintiff; that the party who nominated the winner should receive from the party or parties nominating the other mare the sum of £100; and that if either party who nominated a mare should make default in causing such mare to run, he or they should pay the other party £100. The defendants made such default, and plaintiff sued for £100. The Court held that this was not within the proviso of the statute; there was “no subscription; no contribution; no deposit. This action has been brought, not for a contribution, but to recover a penalty.... For the amount is not made up by a contribution or money deposited, and the winner had to depend on his good fortune in nominating the successful horse.... The contract depended on an accidental circumstance, not on the running of a race.”
Per Crampton, J.: “If it be an ordinary wager it is unlawful; all betting is disallowed, but an exception is made on what I may call a particular species of wagering, namely, a number of persons making a fund, the whole of which is to become the property of the successful party.”
It is clear that in this case the test of prepayment of stakes was adopted by the Court, following Batty v. Marriott.
In Crofton v. Colgan it seems to have been assumed that a subscription to a race by all the owners of the horses running, and a further sum added by the stewards of the race was within the proviso; but the real dispute in this case was on the meaning of the term “winner,” which will be fully discussed hereafter. So the case is of no great value in laying down any test or principle for determining what amounts to “subscription” or “prize.”
In Coombes v. Dibble,[[189]] plaintiff and defendant agreed to ride a race on their own horses, the winner to keep both horses as his own property. Held that this was not within the proviso, as there was in no sense a contribution to a prize. Neither party could be said to “contribute” their horses if they won. Martin, B., however, suggested that if a horse had been placed in the custody of a stakeholder before the race came off, that might have been in the nature of a contribution to a prize within the statute.
So far the balance of authority seems to have been in favour of the decision in Batty v. Marriott and the test therein suggested, the only dicta to the contrary were the remarks made by some of the judges in Parsons v. Alexander.