A purchase, with an option to the seller to deliver on a certain day, is not a wager ; Pixley v. Boynton, 79 Ill. 351; Mohr v. Miesen, 47 Minn. 228, 49 N. W. 862; and the usage allowing merchants to settle such contracts by "differences" does not necessa rily render such contracts void; Boyd v. Hanson, 41 Fed. 174. Margins advanced to brokers on contracts made to be settled on differences may be recovered ; Elder v. Tal cott, 43 III. App. 439; Weld v. Cable. Co., 199 N. Y. 88, 92 N. E. 415. Where purchases and sales are actually completed by deliv ery to the holder, who obtained the money to pay advances by hypothecating the stock, the transactions are valid; [1895] A. C. 318. See a note in 33 Am. L. Reg. N. S. 436. A case varying from the general rule that where accounts are to be settled by differ ences, the transaction is a gambling one, confines it to cases where neither party ex pects any delivery at any time and holds the transaction valid if the final balance is to be by delivery, though intermediate bal ances were otherwise settled ; Dillaway v. Alden, 88 Me. 230, 33 AU. 981. The law looks at the intention of the parties, which is a fact for the jury, and oral evidence may be given of the circumstances, without re spect to the form of the transaction ; Youn kin v. Collier, 47 Fed. 574; but a transaction which on its face is legitimate cannot be held void as a wagering contract by show ing that one party only so understood and meant it to be. The proof must go further and show that this understanding was mu tual; Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct. 950, 37 L. Ed. 819. See Dos Passos. St. Br. 47. See also OPTION; FUTURES; MAROIN. It has been held that contracts between the purchaser of futures and 'a broker, made without the state, though valid where made, could not be enforced in the state where it was invalid by statute; Lemonius v. Mayer, 71 Miss. 514, 14 South. 33; the same prin ciple applies to notes given in settlement of gambling transactions ; Pope v. Hanke, 155 Ill. 617, 40 N. E. 839, 28 L. It. A. 568. Where a note which was delivered to a brok er to secure him against loss in stock trans actions was transferred to an innocent pur chaser without notice, equity would not com pel its return, because given for a gambling debt; Albertson v. Laughlin, 173 Pa. 525, 34 Atl. 216, 51 Am. St. Rep. 777 ; and a mortgage securing advances for margins on a contract for future delivery was held valid where the advances were made in good faith to save loss; Sampson v. Cotton Mills, 82 Fed. 833; but the original payee cannot recover on a note, for money advanced upon or in execution of a contract of wager, to which he is a party or direct participant in the name of or on behalf of the parties; Em brey v. Jemison, 131 U. S. 336, 9 Sup. Ct. 776, 33 L. Ed. 172. See Zeltner v. Irwin, 25 App. Div. 228, 49 N. Y. Supp. 337.
The English statute prohibiting the re covery of money, etc., deposited to abide the event of a wager, applies only to a de posit as the stake to abide the event of a wager and not to deposits as security for the observance by the loser, of the terms of the wagering contract; and the authority to re turn the latter may be revoked and the se curities recovered at any time before their appropriation; [1891] 2 Q. B. 329.
If all options were prohibited, all condi tional contracts would have to be pro hibited. See Dr. Wharton's note to Melchert v. Tel. Co., 11 Fed. 193 ; also Bigelow v. Benedict, 70 N. Y. 202, 26 Am. Rep. 573.
When one loses a wager and gets another to pay the money for him, an action lies for the recovery of the money ; 15 C. B. N.
S. 316; but see Dickson's Ex'r v. Thomas, 97 Pa. 278. So it is said that where an agent advances money to his principal to pay losses incurred in an illegal transaction, the contract between them, made after the illegal contract is closed, is binding; Lehman v. Strass•erger, 2 Woods, 554, Fed. Cas. No. 8,216. See Durant v. Burt, 98 Mass. 161. Where a broker sued his principal for ad vances and commissions on the purchase of property, it was held that the fact that per sons from whom the broker bought the prop erty for his principal had not the goods on band when the contract was made, and that they had no reasonable expectation of acquiring them except by purchase, did not defeat the broker's right to recover ; Sawyer v. Taggart, 14 Bush (Ky.) 727. See, also, 5 M. & W. 462.
See Biddle, Stock Brokers; Lewis, Stocks ; article by Dr. Wharton in 3 Cr. L. Mag. 1, on Political Economy and Criminal Law.
Wagers on the event of an election laid before the poll is open ; 1 Term 56; Bunn v. Riker, 4 Johns. (N. Y.), 426, 4 Am. Dec. 292 ; Wroth v. Johnson, 4 H. & McH. (Md.) 284; or after it is closed; McCullum v. Gour lay, 8 Johns. (N. Y.) 147 ; Lansing v. Lan sing, id. 454 ; are unlawful. See McCrary, Elect. § 149. And wagers are against public Policy if they are in restraint of marriage; 10 East 22; if made as to the mode of play ing an illegal game ; 2 H. Bla. 43; Wootan v. Hasket, 1 N, & McC. (S. C.) 180; or on an abstract speculative question of law or judicial practice, not arising out of circum stances in which the parties have a real in terest; 12 East 247. But see 1 Cpwp. 37.
Wagers, though on indifferent subjects, are inconsistent with good morals, and as such, are void, as against public policy ; Bernard v. Taylor, 23 Or. 419, 31 Pac. 968, 18 L. It. A. 859, 37 Am. St. Rep. 693.
Wagers as to the sex of an individual; Cowp. 729; or whether an unmarried wo• man had borne or would have a child; 4 Camp. 152 ; are illegal, as necessarily lead ing to painful and indecent considerations. Every bet about the age, or height, or weight, or wealth, or circumstances, or situation of any person, is illegal; and this, whether the subject of the bet he man, wo man, or child, married or single, native or foreigner, in this country or abroad; Phillips v. Ives, 1 Rawle (Pa.) 42. And it seems that a wager between two coach-proprietors, whether or not a particular person would go by one of their coaches, is illegal, as ex posing that person to inconvenience; 1 B. & Ald. 683.
In the case even of a legal wager, the authority of a stakeholder, like that of an arbitrator, may be rescinded by either party before the event happens. And if after his authority has been countermanded and the stake has been demanded, he refuse to deliver it, trover or assumpsit for money had and received is maintainable; 1 B. & Ald. 683. And where the wager is in its nature illegal, the stake may be recovered, even after the event, on demand made before it has been paid over ; 4 Taunt. 474. But see Yates v. Foot, 12 Johns. (N. Y.) 1; Deaver v. Bennett, 29 Neb. 812, 46 N. W. 161, 26 Am. St. Rep. 415; Corson v. Neatheny, 9 Colo. 212, 11 Pac. 82. Where the stakeholder of a wager void as between the parties is noti fied by one of them not to pay over the mon ey to his adversary, even after the result of the event has become known, but before payment has been made, he cannot defeat an action by such party for its recovery; Lewy v. Crawford, 5 Tex. Civ. App. 293, 23 S. W. 1041; Weaver v. Harlan, 48 Mo. App. 319. See STAKEHOLDER ; MARGIN ; HORSE RACE; INSURABLE INTEREST.