But the point has now been decided the other way by the Court of Appeal and by the Judicial Committee of the Privy Council, in two cases to which we have alluded above on another point, viz., Diggle v. Higgs[[190]] and Trimble v. Hill.[[191]] In Diggle v. Higgs, in addition to the point decided above, it was contended for the defendant that the deposits were in the nature of a contribution to a prize; but the Court held—
(1.) That the agreement was a mere wager, in spite of the fact that the money was deposited with a stake holder;
(2.) That the proviso in favour of subscription to a prize was only meant to apply to agreements which were not in the nature of wagers. Per Lord Cairns, L. C.: “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, any one which would have the effect of neutralizing the enactment.... 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.’”
(3.) That the enactment avoiding wagers apply to all wagers, irrespective of the legality or illegality of the game.
This case was afterwards followed by the Privy Council in Trimble v. Hill.[[192]]
Result of foregoing cases.
The foregoing cases do not leave the matter very clearly settled. They afford a number of illustrations of transactions which are not within the proviso as subscriptions to a prize; and finally Diggle v. Higgs lays down the general rule that the proviso is not intended to apply to any case which is at all in the nature of a wager. But with the exception of the case of Crofton v. Colgan, they do not go far towards showing what is a subscription or contribution to a prize. It is obvious that the exact line of distinction between a wager and a prize is very difficult to draw. Diggle v. Higgs shows that a mere deposit of stakes to be awarded to the winner of a race between two persons is a wager and nothing more; a decision that would seem to apply to the agreements in Sadler v. Smith[[193]] and Dines v. Wolfe.[[194]] In both these cases the parties agreed to race, in one case a horse-race and in the other a sculling race, having previously deposited stakes with the stakeholder to be awarded to the winner, though in the latter cases the point did not arise, as in neither of those actions did the plaintiff show himself to be the winner. Thus the test suggested in Batty v. Marriott is completely rejected, viz., the distinction between cases where money is deposited before the event and cases where it is not. Another test, hinted by the Court in Parsons v. Alexander, was between cases where the winnings are contributed by the competitors themselves, and where they are given by some outside person. If this be the true test, the result would be that many bonâ fide races would be placed simply on the footing of wagers,[[195]] at any rate so far as the right of the winner to recover the stakes is concerned. Where the winnings consist of sums deposited and a sum added, |Distinction between the stakes and a sum added.| the case of Applegarth v. Colley shows that a distinction can be drawn between the two; the deposits might be in the nature of money won at gaming and so not recoverable, while it was held that the “sum added” by some outside person was under any circumstances recoverable by the winner. It seems that that distinction exists under the present state of the law, and that strictly and technically speaking, the stakes deposited previously to a race are not recoverable; though, no doubt, any sum of money contributed by a stranger would be a contribution to a prize within the proviso.
It is some argument in favour of this view that section 6 of the Betting House Act exempts from the penal provisions of the Act any “deposit of stakes.” This would have been unnecessary if a sweepstakes were not in the nature of a wager.
Entries, stakes, forfeit, cups.
If this, as it is submitted, is the true principle, it is not difficult to ascertain how far the different forms of prizes given for races are recoverable, or how far they come within the law of wagers. Thus “a plate,” which, according to the Rules of Racing, is a prize in money not made up by subscription among the competitors, would seem to be on the same footing as “added money” as decided in Applegarth v. Colley. Entrance money would be on the same footing as the stakes in cases where, according to Rule 160, it is payable to the winner.[[196]] As to “forfeits,” they would seem to be, as their name implies, in the nature of small penalties payable for withdrawing a horse from his engagements. By Rule 109 horses coming up in time to start are liable for the whole stake. It has already been pointed out (sup. p. 63), that such a penalty is not recoverable. A “cup” is any prize not consisting of money. If awarded by some outside person it would, no doubt, be within the proviso, a prize to be awarded to the winner. But if it is obtained by subscription among the competitors it would seem to be on the same footing as a money fund made up of stakes, and the subscribers would be joint owners of aliquot shares,[[197]] until they have all assented to its being handed over to the winner, otherwise the statute might be evaded by the parties purchasing a chattel with the stakes.