they can do business on the street on the percentage of a face value. Margin is a simon-pure wager on the rise or fall of the market. It is legally recognized that stocks and commodities can be bought on credit and that the credit may be for the whole price or for a part of it, with or without security. Margin is security and as long as there is an intention to buy and deliver, it will be recognized legally as security, but where there is no intention to deliver, deal ings on margin are gambling transactions void ab initia. When lambs are to be sheared it is to be observed that there are to be no infants among them. It has been held that where a minor embarks in stock transactions by way of margin it is a wagering contract merely, contrary to the policy of the law and void ab initia. Where the amount is lost he is at liberty to recover back from the broker employed the amount so deposited. Thus the law throws its protecting arm around the period of sowing wild oats. The doctrine, that where an infant has executed a contract and seeks to avoid it on coming of age, he must first restore the considera tion he has received, has no application in a case of a gambling transaction void from the beginning. This is nothing more nor less than notice to the gentlemen of the courts of honor to play their games with gentlemen of their own age and size, and when they must go into the shearing business to confine themselves to the sheep and to leave the lambs of tender years go unshorn. No matter what the form of a contract is it will not control courts in the determina tion of the same, for gentlemen and black legs are astute in concealing their intentions. It is the real nature of the transaction which courts seek to discover. The law of the land regards the substance and not the shadow and if parties intended that the pur chaser should pay for and the seller deliver the commodity or' stock at the maturity of the contract, payment of margins does not
vitiate. A gambling transaction is one to be settled and adjusted by payment of differ ence in price. If price should decline, the purchaser paying the difference, if it should rise the seller paying the advance. Margin deposited upon such an illegal transaction cannot be recovered back, and money know ingly lent for the express purpose of enabling the borrower to settle stock jobbing losses cannot be recovered, the transactions being void between the parties. That it is the substance that controls the application of the law of the land is illus trated by the cases. If one of the parties intended an actual purchase and sale, the contract as to him will not be effected by an illegal intent or purpose of the other not communicated or concurred in. Both parties must intend it to be a wager to make it so. Where a contract is made upon a valid basis but it is settled on a gambling one and the settlement involved an exchange of obliga tions, the gamble may be set up as a good defence against the obligations. Where a stock broker and a customer engage in a series of wagering transactions in a particu lar stock which amount to gambling and the customer finally demands a delivery of the stock and the broker agrees thereto, the cus tomer is liable to the broker for the price of the stock and his contract is not rendered invalid by his previous wagering transactions with the broker. If it is the intention of the parties that an actual purchase of stock on margin shall be made by a broker, the transaction is legal although the delivery may be postponed or made to depend upon a future condition. But if the fact is that no delivery is contem plated to complete the purchase, and the account is to be settled on the basis of a rise or fall in prices, it is a mere wager, and the contract cannot be enforced by either party. Where the contract of a broker, with those from whom he bought, under the rules of the Board of Trade, was such that the delivery of the goods was contemplated and could
