"A wager is an agreement between parties, differing as to an uncertain fact or forecast of a future event, that, on the transpiring of what will disclose the truth, a designated sum of money or other thing shall be transferred from the one who is found to be in the wrong to the other who is ascertained to be in the right. It implies risk on both sides, yet not necessarily equal. The term 'bet' is nearly of the same meaning, yet less nicely technical. Another difference, not always observed, may be that, while wage denotes the contract, bet indicates the thing contracted for."26

23 Adams vs. Gay, 19 Vt., 358; Brown vs. Browning, 15 R. I., 422, 7 Atl. Rep., 403; Sayles vs. Smith, 12 Wend. (N. Y.),57.

24 The Reader must consult the Statute of his own State. 25 State vs. O'Rourk, 35 Neb., 614.

At common law all gambling contracts were originally enforced. Gradually the courts became to be dissatisfied with this feature of the law, and wherever possible, would find some particular reason for refusing to enforce a contract of this character. Thus, in Gilbert vs. Sykes,27 the Court refused to enforce a contract which consisted in a bet on the life of Napoleon Bonaparte, on the ground that on one side this contract would tend to weaken the patriotism of Englishmen, and on the other to encourage the assassination of a foreign ruler. In some of the states in this country wagering contracts have been enforced;28 in other states, however, wagering contracts have been held by the courts to be void as against public policy, even in the absence of statutory provisions.29 In nearly all the states there are now statutes regulating this subject. The most important recent cases concerning wagering contracts which have come before the courts, are those concerned with money lost in speculation in grain or stocks. Contracts of this character were thoroughly discussed by the Supreme Court of Massachusetts in the case of Embrey vs. Jemison:30 "Whether the validity of the original contract for the purchase of future-delivery cotton must depend upon the New York statute, or upon the Virginia statute, it is not important to determine; for, if such contract, as alleged, is a wagering contract, it is void under the law of either State. The plea makes a case of money advanced by the plaintiff's firm solely for the purpose of carrying 'cotton futures', for which he or they contracted, when, according to the averments of the rejected plea, neither party contemplated the purchase or delivery in fact, of cotton, and when it was understood that any settlement, in respect to such purchases, should be exclusively upon the basis of one party paying to the other only 'the difference between the contract price and the market price of said cotton futures, according to the fluctuations of the markets.' If this be not a wagering contract, under the guise of a contract of sale, it would be difficult to imagine one that would be of that character. The mere form of the transaction is of little consequence. If it were, the statute against wagers could easily be evaded. The essential inquiry in every case is as to the necessary effect of the contract and the real intention of the parties. Mr. Benjamin, in his Treatise on Sales (Vol. 2, 6th Am. ed. by Corbin, p. 716, Sec. 828), after stating that at common law, wagers that did not violate any rule of public decency or morality, or any recognized principle of public policy, were not prohibited, says: 'It has already been shown that a contract for the sale of goods to be delivered at a future day is valid, even though the seller has not the goods, nor any other means of getting them than to go into the market and buy them.' 'But such a contract,' he proceeds to say, 'is only valid where the parties really intend and agree that the goods are to be delivered to the seller, and the price to be paid by the buyer. If, under guise of such a contract, the real intent be merely to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, then the whole transaction constitutes nothing more than a wager, and is null and void under the statute.' The statute referred to by the author is that of 8 and 9 "Vict., Chap. 109, Sec. 18, which provides, 'that all contracts or agreements, whether by parol or wagering, shall be null and void; and 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 should have been deposited in the hands of any person, to abide the event on which any wager should have been made.,

26 Bishop on Contracts, Sec. 530.

27 16 East, 150.

28 Johnson vs. Russell, 37 Co., 670; Wheeler vs. Spencer, 15 Conn., 28; Kirkland vs. Randon, 8 Tex., 10.

29 Thomas vs. Cronise, 16 Ohio, 54; Lucas vs. Harper, 24 Ohio St., 328; Stoddard vs. Martin, 1 R. I., 1.

30 131 U. S., 336.

"In Irwin vs. Williar, 110 U. S., 499, 508, 510 (28, 225, 229, 230), the general subject of wagering contracts was carefully considered, and in the opinion delivered by Mr. Justice Matthews, we expressed approval of the doctrine as announced by Mr. Benjamin, observing that generally, in this country, all such contracts are held to be illegal and void as against public policy. It was there said: 'It makes no difference that a debt or wager is made to assume the form of a contract. Gambling is none the less such because it is carried on in the form or guise of legitimate trade.' Referring to that decision in Rountree vs.

Smith, 108 U. S., 269 (27: 722), it was further said: 'It is certainly true that a broker might negotiate such a contract without being privy to the illegal intent of the principal parties to it which renders it void, and in such a case, being innocent of any violation of law, and not suing to enforce an unlawful contract has a meritorious ground for that recovery of compensation for services and advances. But we are also of the opinion that when the broker is privy to the unlawful design of the parties, and brings them together for the purpose of entering into an illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses incurred for services rendered, or losses incurred by himself on behalf of either in forwarding the transaction.' In the present case, according to the averments in the plea of wager, the plaintiff was the broker who effected the purchases of future-delivery cotton. He was privy to the unlawful design of the parties; represented one of them in all the transactions; and advanced the money necessary to carry, and for the express purpose of carrying, these cotton 'futures' on account of the defendant. His position, therefore, was not that of a person merely advancing money to or for one of the parties to a wager, without having himself any direct connection with the making or the execution of the contract of wager itself. He was, in every sense, particeps criminis.