"In Bigelow vs. Benedict, 70 N. Y., 202, 206, the Court of Appeals of New York said that 'where an optional contract for the sale of property is made, and there is no intention on the one side to sell or deliver the property, or on the other to buy or take it, but merely that the difference should be paid accordingly to the fluctuations in market values, the contract would be a wager within the statute.' In Story vs. Salomon, 71 N. Y., 420, 422, which was an action upon a written contract for an option to buy or sell certain shares of stock, and the defense was that it was illegal and void under the statute of New York against gambling, the Court said: 'If it had been shown that neither party intended to deliver or accept the shares but merely to pay differences according to the rise or fall of the market, the contract would have been illegal.' The same principle was announced in Kingsbury vs. Kirwan, 77 N. Y., 612. There are many other authorities to the same effect, but in view of our decision in Irwin vs. Williar, with which we are entirely satisfied, it is not necessary to cite them.

"The plaintiff relies upon Brown vs. Speyers, 20 Gratt, 296, as expressing a different view of this question. But we do not so understand that case. The Supreme Court of Appeals of Virginia did not there indicate its opinion as to the validity of a contract for the purchase of 'futures' the settlement in respect to which was to be the basis of paying simply the difference, according to the fluctuations in the market between the contract price and the market price.

"It is contended that this is not an action upon the original contract, but upon the notes executed by Embrey after the business transacted for him by Moody & Jemison was closed, and with full knowledge, upon his part, of all the facts. In such a case, it is argued, the principles announced in Irwin vs. Williar cannot be applied. This argument concedes at least for the purposes of the present case, that, as the law, for the protection of the public, and in the interest of good morals, declares a wagering contract to be void, the plaintiff could not maintain an action for the money advances in execution of the original contract to carry these 'futures'. And yet it is insisted that he ought to have judgment on the notes in suit, although it appears that they have no other consideration, than the moneys so advanced. A judgment upon the notes, would, in effect, be one for the amount claimed by the plaintiff, under the original contract at the time he demanded their execution by the defendant. Indeed, it has been held that a note could not of itself discharge the original cause of action, unless, by express or special agreement, it was received as payment. Sheeby vs. Mandeville, 10 U. S., 6 Cranch, 253, 264 (3: 215); Peter vs. Beverly, 35 U. S., 10 Pet., 532, 568 (9: 522); The Kimball, 70 U. S., 3 Wall, 37, 45 (18:50, 54).

"While there are authorities that seem to support the position taken by the defendant in error, we are of opinion that, upon principle, the original payee cannot maintain an action on a note, the consideration of which is money advanced by him, upon, or in execution of, a contract of wager, he being a party to that contract, or having directly participated in the making of it in the name or on behalf of one of the parties.

"In Steers vs. Lashley, 6 T. R., 61, it appeared that the defendant was engaged in stock-jobbing transactions with different persons, in which one Wilson was employed as his broker, and had paid the 'differences' for him. A dispute having arisen as to their amount, the matter was referred to the plaintiff and others, who awarded a certain sum as due from the defendant. For a part of that sum the broker drew a bill on the defendant, and after it had been accepted, indorsed it to the plaintiff, Lord Kenyon said: 'If the plaintiff had lent this money to the defendant to pay the differences, and had afterwards received the bill in question for that sum, then, according to the principle announced in Petrie vs. Hannay, 3 T. R., 418, he might have recovered. But here the bill was given for these very differences; and therefore Wilson himself could not have enforced payment of it. Then the security was indorsed over to the plaintiff, he knowing of the illegality of the contract between Wilson and the defendant; for he was the arbitrator to settle their accounts; and under such circumstances he cannot be permitted to recover on the bill in a court of law.'

"In Armory vs. Meryweather, 2 Barn. & C, 573, 578, which was an action of debt on bond, conditioned for the payment of money by installments, the plea in substance was that the bond was given in place of a promissory note previously executed in payment for moneys advanced by an agent of the obligor in discharge of differences arising upon contracts for buying and selling shares in the public stocks, against the form of the statute; the plaintiff having knowledge, when he received the bond, that the note had been made by the defendant on the occasion and for the purpose stated. Abbott, C. J., after observing that there was no period of time when the plaintiff could have maintained an action upon the note, said: 'We are all of opinion, that as it appears upon the pleas that the bond was given as a substitute for a note which was taken by the plaintiffs subject to an infirmity of title of which they had full notice before the bond was taken, the latter instrument is void. In Fisher vs. Bridges, 3 El, & Bl. 642, 649, which was an action upon a covenant in a deed to pay a certain sum, and which covenant was given as security for payment of a part of the purchase money of real estate sold by the plaintiff to the defendant, to be by the latter disposed of by lottery, as the plaintiff knew, the Court said: 'It is clear that the covenant was given for the payment of the purchase money. It springs from and is the creature of the illegal agreement, and as the law would not enforce the original illegal contract, so neither will it allow the parties to enforce a security for the purchase money, which, by the original bargain, was tainted with illegality.' See also, Fariera vs. Gabell, 89 Pa., 89; Griffiths, vs. Sears, 112 Pa., 523; (3 Cent. Rep., 239); Flagg vs. Baldwin, 38 N. J. Eq., 219, 227; Cunningham vs. Nat. Bank of Augusta, 71 Ga., 400; Tenney vs. Foote, 95 I11., 100; Rudolf vs. Winters, 7 Neb., 126; Lowry vs. Dillman, 59 Wis., 197; S. C, 18, N. W. Rep., 4.

"Assuming the averments of the plea of wager to be true, it is clear that the plaintiff could not recover upon the original agreement without disclosing the fact that it was one that could not be enforced or made the basis of a judgment. He cannot be permitted to withdraw attention from this feature of the transaction by the device of obtaining notes for the amount claimed under that illegal agreement; for they are not founded on any new or independent consideration, but are only written promises to pay that which the obligor had verbally agreed to pay. They do not, in any just sense, constitute a distinct or collateral contract based upon a valid consideration. Nor do they represent anything of value, in the hands of the defendant, which, in good conscience, belongs to the plaintiff or to his firm. Although the burden of proof is on the obligor to show the real consideration, the execution of the notes could not obliterate the substantive fact that they grew immediately out of, and are directly connected with, a wagering . contract. They must, therefore, be regarded as tainted with the illegality of that contract, the benefits of which the plaintiff seeks to obtain by this suit. That the defendant executed the notes with full knowledge of all the facts is of no moment. The defense he makes is not allowed for his sake, but to maintain the policy of the law. Coppell vs. Hall, 74 U. S., 7 Wall., 542, 558 (19: 244, 248).

"We are of opinion that the special plea of wager presented a good defense to the action, and ought not to have been rejected; also, that the instruction asked by the defendant should have been given,"