70 N. Y. 202; Story v. Salomon, 71 N. Y. 420; Morris v. Tumbridge, 83 N. Y. 95; Kirkpatriek v. Bonsall, 72 Perm. St. 155; Pixley v. Boynton, 79 111. 351; Cole v. Melmine, 88 111. 349; Logan v. Brown, 81 111. 415; Gregory v. Wendell, 39 Mich. 337; Barnard v. Bark-haus, 52 Wis. 593; Williams v. Carr, 80 N. C. 294; Sawyer v. Taggart, 14 Bush, 727; Williams v. Tiedemann, 6 Mo. Ap. 269, and other cases cited Wald's Pollock, 278; Benj. on Sales, 3d Am. ed. sec 542.

1 Per cur. Cannan v. Bryce, 3 B. & Ald. 179. In Third National Bank v. Harrison, 10 Fed. Report. 248, we have the following from Treat, J.: -.

"The principle may be considered well established that when a statute pronounces a gaming or usurious contract absolutely void no recovery can be had thereon. The gaming statute of Missouri destroys the negotiable character of a note, or other obligation, given for a gaming consideration within the terms of that statute. The doctrine that void transactions cannot acquire validity by transfer of paper obligations based thereon finds full sanction not only in authorities, supra, but in the many bond cases before the United States supreme court. Thompson v. Bowie, 4 Wall. 463; Wells v. Supervisors, 102 U. S. 625; Buchanan v. Litchfield, 102 U. S. 278; Jarrolt v. Moberly, 103 U. S. 580; McClure v. Oxford, 94 U. S. 429. The broad distinction remains between contracts void ab origine, by force of statutes whereby assignees and indorsees are unprotected, and contracts contra bonos mores, which cannot be enforced between the original parties thereto, but are held enforceable when, being negotiable in form, they have passed to innocent holders for value.

"The notes in question were, it. must be held for the purposes of this motion, given for balances on an ' option deal,' an illegal contract; being, as alleged, a mere betting transaction on future prices, with no purpose of delivering or receiving the articles concerning which the bet was made. If the allegations of the answer are true, Alexander could not recover on the notes in suit; and the court was in doubt whether the position the bank occupies should not be considered as exceptional, and thus open the equities between the original parties. It is evident that the bank could at divers times have collected Alexander's demand note and turned over to him the collaterals; and it seemed that defendant's position had great force, viz., that the transfer of Harrison's notes as collateral to the bank under the circumstances was merely for the purpose of excluding the equities between the original parties. Still the stubborn fact remained that the bank is a bona fide holder for value within the rules laid down by the United States supreme court in Swift v. Tyson, 16 Pet. 1, and Goodman v. Simonds, 20 How. 343, no evidence being given that the bank had notice of the infirmity of the paper.

"The court holds that the transacthat the vendor should have the thing in his possession. There may be actual sale, even without tactual possession on either tion in question is not within the terms of the gaming laws of Missouri, but if it was an option deal, as charged, would he nnenforceable between the original parties, and even in the hands of an innocent indorsee for value.

"The distinction is so clearly drawn, and the doctrines so exhaustively considered by Judge Thayer, of the St. Louis circuit court (with whose manuscript opinion in the Tinsley case I have been favored), that it would he a mere repetition of what has been thus so ably done, to attempt to travel over the same ground, and hence I quote largely from his opinion as follows: business perfectly fair, to sell something, which, though not actually in his hands, could yet be obtained by him either in specie or in equivalent at any time he may desire. Endorsement of negotiable paper rests on this principle. I do not have the money which my endorsement calls for in my pocket; I may not have it in bank; but nevertheless my endorsement is a perfectly legitimate transaction. There is no reason why a debt payable in wheat or in any other common commodity should not be regarded in the same light. The custom of merchants, it is agreed, sustains transfers of money which is not in hand; there is no reason why the custom of merchants should not be permitted to establish similar transfers of articles into which money can be readily converted. This has been held to be the case with regard to assignments of goods in transit by transfers of bills of lading; and goods, of which

" ' The law is now well settled, in all of the states where the question has arisen, that there can be no recovery had upon a contract or sale of personalty where the parties to such contract do not intend an actual delivery of the articles bargained for, but merely intend to settle differences at some future day between the price agreed to be paid for the commodity and the then market price. Such contracts are universally held to be invalid as against public policy, and in some instances they have been held to be in violation of statutes relative to gaming and wagers. Lyon v. Culbertson, 83 111. 33; Sampson v. Shaw, 101 Mass. 145; Kirkpatrick v. Bonsall, 72 Pa. St. 155; Gregory v. Wendell, 39 Mich. 337; Rumsey v. Berry, 65 Me. 570; Williams v. Tiedemann, 6 Mo. App. 269. But there is an apparent conflict of opinion touching the question whether a broker, factor, or commission merchant, who has been employed by his principal to make contracts of this character with some third party, and has done so in his own name, but for his principal's benefit, may maintain an action against his principal to recover money expended for his principal at his principal's request in the settlement of losses accruing under such contracts. This precise question was considered in the case of Green, 15 N. B. R. 201 (U. S. Dist. Court, W. D. Wis.), and it was there held that the broker could not recover from his principal for moneys thus expended in the settlement of losses on such illegal ventures. But it is to be observed that the court, in the case last cited, based its decision mainly on a statute of Wisconsin, which declared all 'notes and agreements void that had been given for repaying any money knowingly advanced for any betting and gaming at the time of such betting or gaming.' And the evidence in the case cited showed that the broker not only made the illegal contracts in question, but that he advanced the money for the venture. The court accordingly held that the case fell within the statute, and that the broker could not recover money thus knowingly advanced in furtherance of a gambling transaction.