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1866.

COOMBES

DIBBLE.

of parliament from the circumstances essentially connected with the subject matter of it. I do not mean to say that by no possibility could any person having a reasonable acquaintance with the English language put upon

the statute the construction contended for, but I should be surprised if anyone familiar with horse racing should think that if two persons agree to run the horse of each against the other, that is, within the words of the proviso, a “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.” It seems to me that it would be like confounding barter with sale. In my opinion the enactment refers to a subscription or contribution of money. It may be, however, that if a number of persons contributed certain articles which were deposited with a stakeholder to be handed over to the winner of the race, that would be within the proviso. But it cannot be said that a couple of horses which are striving against each other to win the race are a subscription or contribution “towards any plate, prize or sum of money." I think that the framers of this enactment could never have intended that the case of two persons riding a race for the horses on which they rode should be within the proviso.

Martin, B.-I am of opinion that this case falls within the first part of the 18th section of the 8 & 9 Vict. c. 109, and not within the proviso. That section enacts “that all contracts or agreements, whether by parol or in writing, by way of gaming or wagering shall be null and void.” This is a contract in writing (and I think a wager in the ordinary sense of the word), by which two persons agree that the horse of the one shall run against the horse of the other, and that the owner of the winning horse shall

1866.

COOMBES

DIBBLE,

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have both. The section proceeds to enact " that 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.” Now, the horse alleged to have won, was a “valuable thing," and if it, or its value (141.), had been deposited in tlie hands of a stakeholder to abide the event of the wager, it could not have been recovered. Then comes the proviso of the 18th section, “ that this enactment shall not be deemed 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." I should be content to accept as law the judgment of the Court of Common Pleas in Batty v. Marriott (a), it being the judg. ment of a Court of co-ordinate jurisdiction; but in this case there was no "subscription or contribution, or agreement to subscribe or contribute." The agreement was that each should ride his own horse, and that the horse of the loser should become the property of the winner. If no suit could be maintained for the horse, the defendant had no right to take it, and therefore, upon the evidence, it ought to have been left to the jury to say whether the horse was taken against the consent of the plaintiff, or voluntarily handed over by him to the defendant, for if so it cannot be recovered back.

BRAMWELL, B.-I am of the same opinion. It is clear that the case is within the first part of the 18th section of

(a) 5 C. B. 818.

1866.

COOMBES

V. DIBBLE,

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the 8 & 9 Vict. c. 109, and the only question is whether it is within the proviso. As at present advised, I am satisfied with the decision in Batty v. Marriott, and accept it as law; but in my opinion this case is not within the proviso, and therefore not touched by that decision. I do not say that there may not be a “prize” consisting of a borse, or that a horse may not be “contributed" within the meaning of the proviso; but here there was no contribution by either of the parties of their horses. I do not think it was the intention of the legislature that such a case as this should be within the proviso; but that they contemplated a subscription or contribution, or agreement to subscribe or contribute, to plate or something else which should be a prize. That being so, the main question must be determined in favour of the plaintiff, viz., that the contract is null and void. But then the question remains whether the defendant lawfully got possession of the plaintiff's horse. That question has not been disposed of by the jury, and therefore I think there ought to be a new trial (a).

(a) At the suggestion of the Trinity Term in order that the Court the case stood over until parties might come to an arrangethe first day of the following ment, which they did.

1866.

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April 25.

MANNING v. TAYLOR and Others. A testator

EJECTMENT to recover an undivided fourth part of seised in fee of two undivided quarters certain lands, called Castle Hayes, in the county of Devon. of certain lands, before

By consent and order of a Judge a case was stated for the the 7 Wm. 4

opinion of this Court, without pleadings, (so far as material) & 1 Vict. c. 26 devised as follows: one of them as follows :- Previously to the year 1799 the lands called Castle “I give to J. M all my

Haynes were held in undivided fourth parts, and in that undivided quarter of year two of such fourth parts were purchased by one John three at lease to P. Hellyer, who then became seised thereof in fee simple, on three lives.” subject only to certain leases for lives then subsisting but - Held, that the devisee since determined. took an estate in fee.

John Hellyer, being so seised, by bis will, dated the 23rd of April, 1801, devised (inter alia) as follows:

"I give my daughter Mary the rents of my undivided quarter of the three Castle Hayes now rented by Mr. Benjamin Frickey at 201. 16s. 8d. per year, to receive the said rent entirely to her own use notwithstanding her coverture, and immediately after her death I give my said undivided quarter of the said three Castle Hayes, in the parish of Plympton Vaurice, to Joseph Lane, son of my said daughter Mary Lane.

“I give unto Joseph Yanning, son of my daughter Elizabeth Vanning, all my undivided quarter of three fields in the parish of Plympton Maurice, and are at lease to Miss Elizabeth Palmer on three lives; conventionary rent 13s. 1d; heriot, 16s. on each life dying; known and commonly called Castle Haynes, to be received by the said Joseph Manning, or his father for bim.

“ I give unto John Lane, that married my daughter

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V. TAYLOR.

Mary Hall, 101. I give unto Richard Manning, that married my daughter Elizabeth, 101. And I appoint you, the said John Lane and Richard Manning, immediately after my death, to receive the rents of all I have given your children as it shall come into hand, to keep the house in good repair, and to pay for their schooling, clothing and binding them apprentice. To keep a just account, and as they attain each of them their full age of twenty-one years to pay to each of them the money due, and as honest men deliver up your charge."

The will also contained devises in the following terms: _“I also give him the said John Manning the high rent for my moiety of Wedgers Parks. I also give him the fee of my said moiety of Wedgers Parks immediately after the death of the lives now on it. I give unto William Lane, son of my said Mary, the conventionary rent of Chubb's tenement, now by Higman Sadler, of Dock, held by a lease from the Fortescues, of Vallapit, to Richard Morrish, of Plympton. I also give him, the said William Lane, the fee of the said Chubb's tenement."

The testator died in 1802. Joseph Manning entered into possession of all the lands devised to him, and in the year 1846, by his will, devised all his real and personal estate to his wife Mary absolutely.

Joseph Manning died on the 9th of September, 1846, leaving his wife and his only son, the plaintiff, him surviving. Upon the death of Joseph Manning the heirs at law of John Hellyer gave notice to the tenants of the undivided fourth part of Castle Hayes devised to Joseph Manning to pay to them the rents, and they have since been in receipt of the rents. The defendants have succeeded to all their rights in the premises.

Mary Manning died intestate in January, 1864, leaving

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