It was formerly held in England, that some wagers are valid contracts at common law. (j)1 But they have been recently

(j) Good v. Elliott, 8 T. R. 693. The wager here was, whether one S. T. had, or had not, before a certain day bought a wagon belonging to D. C. So a wager on the age of the plaintiff and defendant has been held good at common law. Hussey v. Crickitt, 3 Camp. 168. And see Bland v. Collett, 4 Camp. 157; Fisher v. Waltham, 4 Q. B. 889. So a wager on the result of an appeal from the Court of Chancery to the House of Lords has been held good, no fraud being intended, and the parties having no power to bias the decision. Jones v. Randall, Cowp. 87. And so of a wager on the price of foreign funds. Morgan v. Pebrer, 4 Scott, 280. So of a wager that a certain horse would win a certain race. Moon v. Durden. 2 Exch. 22. By the common law of England, therefore, wagers were not per se void, unless they affected the interests, feelings, or character of third persons; or led to indecent evidence; or were contrary to public policy; or tended to immorality, or to a breach of some law. Lord Campbell, in Thackoorseydass v. Dhondmull, 6 Moore P. C. 800; Doolubdass v. Ramloll, 7 Moore P. C. 239, 3

Eng. L. & Eq. 39. And a few early decisions in America inclined the same way. Bunn v. Ricker, 4 Johns. 426; Morgan v. Richards, 1 Browne, Pa. 171; Hasket v. Wootan, 1 Nott & McC. 180; Shepherd v. Sawyer, 2 Murphy, 26; Grant v. Hamilton, 3 McLean, 100; Ron v. Green, 4 Harring. Del. 308; Dunman v. Strother, 1 Texas, 89; Barret v. Hampton, 2 Brev. 226. But a different view was taken in many States, and all wagers were considered to be illegal, and contrary to good policy. Thus, in Collamer v. Day, 2 Vt. 144, a wager that a certain chaise then in sight was the property of A and not of B was held void. And see Amory v. Gilman, 2 Mass. 1; Babcock v. Thompson, 8 Pick. 446; Ball v. Gilbert, 12 Met. 399, Shaw, C. J.; Hoit v. Hodge, 6 N. H. 104; Rice v. Gist, 1 Strobh. 82; Edgell v. McLaughlin, 6 Whart. 176; Lewis v. Littlefleld, 16 Me. 233; Carrier v. Brannan, 3 Cal. 328. But however the common law may be, all wagers are now forbidden in England by statute, 8 & 9 Vict. c. 100, § 18 (1845), and similar statutes exist in many American States. Unless special provision was

1 Transactions in stocks or commodities by way of margins, the settlement of differences between the contract and market price at a given time, and the payment of the pain or loss, without any intention to deliver the stocks or commodities, are mere wagering contracts and unenforceable. North v. Phillips, 89 Penn. St 250; Rumsey v. Berry, 65 Maine, 570; Melchert v. American Un. Tel. Co. 3 McCrary, 521, and note. See Fareira v. Gabell. 89 Penn St. 89; Kirkpatrick v. Bonsall, 72 id. 155; In re Green.

7 Bissell, 338; Atwood v. Weeden, 12 R I. 293. Thus a contract for the sale and future delivery of grain, by which a seller can deliver or not, and the buyer can call for delivery or not, just as each chooses, and which on maturity is to be filled by adjusting the differences in market value, and requiring the parties to put up margins as security, and providing that, if either party fails, on notice, to put up farther margins according to the market price, the other may treat the contract as filled immediately, and recover the difference between the market and the contract price, without offering to perform or showing any ability so to do, is a gambling transaction and unenforceable. Pickering v. Cease, 79 Ill. 328; Lyon v. Culbertson, 83 Ill. 33. A note given by a principal to his broker for services rendered and moneys advanced in making and settling such gambling contracts is void. Barnard v. Backhaus, 52 Wis. 593. But when stocks are bought and sold, although upon speculation, if they are to be delivered, it is not a gambling transaction. Smith v. Bouvier, 70 Penn. St 325. Nor are time contracts made in good faith for the future delivery of grain or any other commodity prohibited, either by the common law or by statute. Wolcott v. Heath, 78 Ill. 433. The giving a seller till the last day of a month, at his option, in which to deliver a commodity, is not a gambling contract, and the purchaser will be entitled to its benefit, irrespective of the seller's secret intention. Pixley v. Boynton, 79 Ill. 351. In England the employment of a broker to speculate on the stock exchange, so that only "differences" should be payable by the principal, has been held not to be against public policy, not illegal at common law, and not in the nature of a gaming or wagering contract against the statute of

8 & 9 Vict c. 109,§ 18. Thacker v. Hardy, 4 Q. B. D. 685.

* prohibited by statute in England and in parts of this coun try; and there are American courts which have denied to them any validity whatever. Even if admitted to be valid, it is certain that this must be with important qualifications;(k) as, for instance, that they shall not refer to another's person or property, (l) so as to make him infamous, or to be libellous or indecent, or to injure his property, or to tend to break the peace. It cannot be believed, in these days, that wagers would be anywhere upheld, against which these objections could be fairly urged; and upon some of these points the authorities are quite clear. (m)l We have already considered some of the rules applicable to the subject of stakeholders and wagers, in a previous section of this chapter. (mm) made therefor, however, they would not have a retrospective operation upon actions commenced before. Moon v. Durden, 2 Exch. 22; Doolubdass v. Ramloll, 7 Moore P. C. 239, 3 Eng. L. & Eq. 39.

(k) Wagers as to the mode of playing, or the result of any illegal game, as boxing, wrestling, cockfighting, etc., are void at common law. Brown v. Leeson, 2 H. Bl. 43; Egerton v. Furseman, 1 C. & P. 613; Kennedy v. Gad, 3 C. & P. 376; Squires v. Whisken, 3 Camp. 140; Hunt v. Bell, 1 Bing. 1; McKeon v. Caherty, 1 flail, 300; flasket v. Wootan, 1 Nott 6 McC. 180; Atchison v. Gee, 4 McCord, 211. Money lent for the purpose of betting cannot be recovered by the lender of the borrower. Peck v. Briggs, 3 Denio, 107; Ruckman v. Bryan, id. 840. And a note given for a gaming debt is void, even in the hands of an innocent indorsee for value. Unger v. Boas, 13 Penn. St. 601.