" ' There are other cases, arising between factors and brokers and their principals, which the courts have apparently treated as though the action was between the principals to the illegal transaction. But the different relation existing between the agent and his principal, in actions by the former to recover moneys expended for his principal in the settlement of losses on wager contracts, was apparently not called to the attention of the court. Vide Gregory v. Wendell, supra; Williams v. Tiedemann, supra.

" ' On the other hand, the law is well settled in England that if a broker be side, if there be the intention bona fide to sell. It may often happen that a party desires, and this in pursuance of a line of employed to make wager contracts, such as are voidable under 8 & 9 Vict, c. 109, sec 18, and at the request of his principal the broker pays the amount due under such contract, he can recover the amount so paid from his principal, and the illegal nature of the contract with reference to which the money is paid is no defence to an action founded on such claim. Rosewarne v. Billing, 33 Law. Jour. (1864) 55, N. S. Common Pleas, Michaelmas term, 1863; Pidgeon v. Burslem, 3 Exch. 465; Jessopp v. Lutwyche, 10 Exch. 614.

" ' In this country the same doctrine has been held substantially in the following cases: Lehman v. Strassberger, 2 Woods, 554; Warren v. Hewitt, 45 Ga. 501; Clark v. Foss, 10 Chicago Leg. N. 213.

" ' In the case of Marshall v. Thurston the court says: ' We understand the charge of the lower court to be, in substance, that if the broker knowingly assisted the defendant by an advance of money and active agency, though not as principal, to gamble in the rise and fall of bonds, no recovery can be had; but if the broker merely acted as his agent in effecting contracts between him and third parties for the purchase or sale of bonds on time, the defendant and third parties intending to speculate in the rise and fall of prices, and defendant suffered losses which were paid by the broker at defendant's request, or were paid and the payments subsequently ratified by the defendant by executing notes therefor, a recovery can be had. In this view the charge is supported by the authorities.'

" ' The rule which has the support of the great weight of authority (whatever may be thought of the policy and morality of the rule) seems to be as follows: If a factor, broker, or commission merchant be employed by his principal to buy or sell commodities for the purpose of speculating on the rise and fall of prices merely, and the agent buys or sells in his own name, but on his principal's account, and subsequently, after losses have occurred in such transactions, the agent advances money at his principal's request to pay such losses, or if the agent pay such losses and the principal afterwards executes notes in the agent's favor to cover the amounts so advanced, the agent may recover against his principal the advances so made at his request, or upon the notes so executed, notwithstanding the illegal character of the original venture. The promise implied in the one instance and expressed in the other is neither void for want of consideration nor tainted with illegality. It was even held in the case of the Planters' Bank v. Union Bank, 16 Wall. 433, that where the defendant, in violation of law, had sold bonds for the plaintiff and received the proceeds, the plaintiff might recover the amount from the defendant, and that the illegal character of the transaction out of which the fund arose was no defence.

" ' But, on the other hand, if a broker or factor supply his principal with funds for the express purpose of enabling him to engage in illegal transactions, and if he (the agent) conducts the illegal venture in his own name, it seems clear that he becomes a particeps criminis, and the law will not aid him to recover moneys advanced for such purpose, nor will it enforce securities taken therefor.' "

In Melchert v. Ins. Co., Cir. Ct.

Iowa, 1882,11 Feb. Rep. 193, it was held that an action could not be maintained against a telegraph company for negligence in non-delivery of a message, which the court held to be to direct a gambling investment. "If these contracts," said Judge Love, "were illegal gambling contracts, within the statute laws of Illinois, it was the plaintiff's plain duty not to fulfil them, and he cannot complain of the defendant's telegraph company that they were not sufficiently diligent in aiding him to perform his unlawful agreements. The contracts in question were for the delivery of rye in the month of September, at the seller's option. A contract for delivery at the seller's option may be valid or invalid. It depends upon the nature of the option as shown in the intention and purpose of the parties. The option may refer to the fact of delivery, or merely to the time of delivery. If it be the intention of the parties that the property shall be in fact delivered, giving the seller's option as to the time of delivery within a certain period, I see no valid objection to such a contract. It is but a contract for sale of property to be delivered in the future, within a given time. But if it be not the bona fide intention of the parties that the property shall be in fact delivered in fulfilment of the contract of sale, but that the seller may, at his election, deliver or not deliver, and pay 'differences,' then the contract is void. Such a dealing amounts to a mere speculation upon the rise and fall of prices. It required no capital, except the small sums demanded to put up margins and pay differences. It promotes no legitimate trade. Any impecunious gambler can engage in it, with infinite detriment to the bona fide dealer. It enables mere adventurers, at small risk, to agitate the markets, stimulate and depress prices, and bring down financial ruin upon the heads of the unwary. It enables the unscrupulous speculator, with little or no capital, to oppress and ruin the honest and legitimate trader. Corners and black Fridays and sudden fluctuations in values are its illegitimate progeny." there are at any time large amounts in the market, may be obtained at least as readily as goods in transit. Supposing my specialty is trading in wheat, there is no more reason why an agreement by me to deliver a certain amount of wheat next week should be invalid, than would be my agreement, supposing me to be a professional man, to render next week certain professional services. Such is unquestionably the English rule;1 and in this country there are high authorities to the same effect.2 In Pennsylvania, it is true, it has been held that where, as a matter of fact, it appears that the vendor has not any reasonable expectation of procuring the article he sells, and no intention of procuring it, the sale is to be regarded as a mere gambling venture, and the contract will not be enforced.3 The decisions reached in these cases can be sustained on the hypothesis that, as a matter of fact, it appeared that there was no intention to deal with the things sold in specie, but merely with difference in price. If so, the proposal would substantially be, "if I deposit $1000 with you will you give me $10,000 in case of a future uncertain event occurring in a particular way;" and this would be a gambling wager. On the other hand, if there be either an actual delivery of the thing purchased to the purchaser or his agent, or if there be a right to call for such thing so deposited, such thing being obtainable for the purpose, then the transaction cannot be regarded as a gambling adventure. Whether the last-named condition of things exists is a question, not of law, but of fact.4