The case was taken up to the Court of Appeal, where the view taken by Lindley, J., as to the facts was confirmed; consequently it became unnecessary to consider the application of the statute to the case.

Bramwell, L.J., said he would assume that the broker might by the terms of the bargain be called upon to resell the stock, so that the principal would only have had to pay differences. That would not infringe the statute as a gaming contract, for the principal might at any time elect to take the stock and hold it as an investment ... also the broker might be unable to sell, if, for instance he had bought shares in an insolvent bank. There is no wagering in a transaction of that kind—the broker has no interest in the stock—it does not matter to him whether the market rises or falls; but when a transaction comes within the statute against gambling and wagering, the result of it does affect both parties.

Ex parte Rogers.

In ex parte Rogers[[246]] the facts seem to have been substantially the same. A stockbroker named Evans issued a debtor’s summons against Rogers in respect of money due to Evans on the purchase and sale of stocks and shares on Rogers’ behalf, and for commission, and for money paid by Evans for carrying over[[247]] a portion of the said stocks and shares. The contracts were made by Evans, subject to the rules of the Stock Exchange, according to which Evans had to deal as principal between himself and the jobbers. It was understood between Evans and Rogers that the latter was only buying for the rise and never intended to accept delivery, but meant to sell them again before the next account day and receive or pay differences. Evans admitted that sometimes in buying the same kind of stock for two clients he bought the whole amount in one from the jobber, and then resold to the clients, but he could not say whether that had been done in respect of any transactions for Rogers. There was also evidence to show that Rogers had met Evans in his office, and authorised him to borrow money and pay the jobbers. It was sought on behalf of the debtor to distinguish the case from Thacker v. Hardy, on the ground that the broker had acted as a principal and not as an agent, having purchased for himself and resold to his clients, and that the transaction being in the nature of a wager was illegal (? void). But the Court held that there was sufficient evidence that the broker had paid money at the debtor’s request, therefore the case was within Thacker v. Hardy.

Ex parte Grant, 13 Ch. Div. Dealings between members of the House.

The case of ex parte Grant,[[248]] to which we have alluded above, is important on the present subject, chiefly from the evidence given in the case as to the course of dealing on the Stock Exchange, which seems to confirm the finding of Lindley, J., and the Court of Appeal, as to the facts of the case in Thacker v. Hardy. At p. 671 it is stated: “Contracts on the Stock Exchange are never for payment or receipt of differences. All contracts, &c., are real transactions for cash or for a day named, contemplating the actual transfer or delivery ... and which transfer or delivery can only be rendered unnecessary by a new and equally real bargain on the one part to accept and pay for on the same day, and on the other part to transfer or deliver an equivalent amount of the same stock.” It is then further stated that if a member having, say, bought stock which he was unable or unwilling to take up, he balances the transaction by selling a similar amount of (but not the identical) stock for the same settling day for which the bargain was originally made, so as to enable that particular transaction to be written off and balanced. “The whole amount of stock or shares to be taken and delivered balances itself at all times, |Differences, how adjusted.| but the amount of stock to be accepted from or delivered to the several persons with whom any member has dealings, is liable to vary with every new transaction entered into.” “When the settling day arrives each member only transfers or delivers and accepts and pays for the then balance of each particular description of stocks or shares contracted for with each person with whom he has dealt.”

The affidavits in this case should be carefully perused, as they afford a great deal of information as to the method of doing business on the Stock Exchange. It seems clear that the transactions there described can in no sense be in the nature of wagers—they consist of an original purchase or sale and a sub-sale or sub-purchase, the latter being probably to a person who was not a party to the original contract. Possibly if the sub-sale or sub-purchase were made between the original parties and were contemporaneous with the first contract, this might, according to the case of Grizewood v. Blane, amount to a wager, but this method of dealing seems to be unknown on the Stock Exchange.

No doubt the transactions which go on may be made a means of reckless gambling; but it is necessary to bear in mind Lindley, J.’s warning in Thacker v. Hardy against being misled by an epithet.

Qy. Byers v. Beattie.

There is, however, an Irish case,[[249]] which certainly seems open to question, in which the agreement was that the plaintiffs, as stockbrokers, should buy and sell for the defendant such stocks, &c., as the defendant might require on the terms that if a profit should result from the sale the plaintiffs should account to the defendant for such profit, deducting commission; if a loss, then the defendant was to pay the amount of such loss to the plaintiff, plus commission. Held that this was a wagering contract, as involving an agreement for the payment in receipt of losses or profits, and that the result would have been the same even if the plaintiffs had shown themselves liable to third parties and had sued on an implied contract of indemnity. The answer to this decision seems to be that even if there were a wager at all it was not a wager between plaintiffs and defendant.