dissenting. Section 4256 of the Civil Code of 1910 is as follows: “Gaming contracts are void, and all evidences of debt or incumbrances or liens on property, executed upon a gaming consideration, are void in the hands of any person. Money paid or property delivered up, upon such consideration, may be recovered back from the winner by the loser, if he shall sue for the same in six months' after the loss.” Is an agreement for the purchase or sale of cotton “on margins,” commonly called dealing in futures, when the intention or understanding of the parties is to receive or pay the difference between the agreed price and the market price at the time of settlement, a gaming contract within the meaning of the above section of the Code? Such an agreement is made unlawful. Civil Code (1910), § 4258. Every person who shall become a party to any such contract or agreement, and every person who shall as agent, directly or indirectly, participate in making or furthering or effectuating the same, and every agent or officer of any corporation who shall in any way knowingly aid in making or furthering any such contract or agreement shall be guilty of a misdemeanor. Civil Code (1910), § 4259. The statute is very comprehensive. It makes all gaming contracts void, and declares that money paid or property delivered up on a gaming consideration may be recovered back from the winner by the loser if suit is brought within six months for the loss. In Cunningham v. National Bank of Augusta, 71 Ga. 400, this court said: “Contracts for the purchase and sale of cotton futures are gaming contracts.” That case was again before this court in National Bank of Augusta v. Cunningham, 75 Ga. 366, when the ruling was reaffirmed. Said ruling was again reaffirmed in Wallers v. Comer, 79 Ga. 796 (5 S. E. 292), in which it was held that speculations in cotton futures are wagering contracts. In Alexander v. State, 86 Ga. 246 (12 S, E. 408, 10 L. R. A. 859), this court held that “The business of buying and selling what are commonly known as futures, being gambling, is not protected by the interstate-commerce clause of the constitution of the United States.” This court further said: “This court and many other courts in this country have held that this business is gambling.” In Moss v. Exchange Bank of Macon, 102 Ga. 808. (30 S. E. 267), this court ruled: “A contract for the purchase and sale of ‘cotton futures’ is a gaming contract, and therefore *835illegal and contrary to public policy.” In Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 305 (37 S. E. 485, 81 Am. St. R. 38), this court said: “A contract for the future delivery of goods is not a wagering contract, when actual delivery of the goods is contemplated by either one or both of the parties. . . If, however, it is the intention of both parties to the contract that the goods shall not be actually delivered, but that there shall be a settlement of the differences between them, according to the market price of the article, on a given day, such a contract would be a wager and not enforceable by either party.” See Singleton v. Bank of Manticello, 113 Ga. 537, 539 (38 S. E. 947). It will not do to say that section 4356 of the Code is applicable only to gambling with cards, dice, balls, and like means, and not to the colossal forms of gaming carried on in the form of dealing in futures, when delivery of the articles dealt in is not contemplated, but settlement on the difference between the contract and market prices.
In Dyer v. Benson, 69 Ga. 609, this court held: “Betting, on a horse-race is gaming in the sense of the Code; and since its adoption, one who has lost a horse by betting on such a race may recover it by suing therefor within six months.” In the decision, Chief Justice Jackson said: “This must be the true sense of the section 3759 of the Code [now § 4356 of the present Code], or it would have been limited, as the acts in Cobb’s Digest, pp. 737, 738, were, to the games of cards, dice, etc., etc., therein enumerated. The codifiers wove into those old statutes the broader policy indicated by the opinion of Judge McDonald, in 31 Ga. p. 46; and the legislation adopting the Code made it lawful for the loser to recover, within six months from the loss of his goods, from the winner the goods so lost, not only in the games specified in Cobb’s Digest, but in all cases of gaming.” Here is an express decision holding that the section of the Code under consideration was intended to cover “all cases of gaming.” In Thrower v. State, 117 Ga. 753 (supra), this court affirmed the doctrine laid down in Dyer v. Benson, by again holding: “Betting on a horse-race is gaming within the meaning of the Code.” In that case this court also held: “One who maintains a house for the purpose of such, gaming is guilty of keeping a gaming-house, even though betting on a horse-race is not prohibited by statute, and though the ra.ce be run in a different State.” In that case *836this court further held: “The statute is not aimed at the games or the players/ but against keeping a house where gaming of any sort is encouraged, and because of its tendency to corrupt morals and to ruin fortunes. . . There is a difference between gambling and gaming. In defining gaming contracts, the Code refers to contracts in which money has been wagered, although there may be no sport, no skill, no element of contest between those betting; and therefore, while some few courts rule that betting on a horse-race is not even gaming, most others (14 Am. & Eng. Enc. L. (2d ed.) 682, n. 1, 2) decide it to be gaming, and our own court has held that 'betting on a horse-race is gaming in the sense of the Code.’ Dyer v. Benson, 69 Ga. 609. It may not be gambling, but it is gaming; and if so, a person who maintains a place where such betting is carried on as a business is keeping a gaming-house.” The principle announced in the case last cited was followed in Jones v. State, 120 Ga. 185 (47 S. E. 561). In McLennan v. Whiddon, 120 Ga. 666 (48 S. E. 201), this court held: “Where one who has deposited money with a stakeholder as a wager notifies the stakeholder, while the money is still in his hands, that the bet is withdrawn, and instructs him not to pay it to the other party to the transaction, the stakeholder is bound to follow such instruction; and if, notwithstanding such notice, he pays the money to the winning party, the retracting party may, after demand upon him for the money so deposited, recover from the stakeholder, in an action for money had and received.” In that case this court also made this ruling: “Gambling contracts are illegal in this State. All are under the ban of the law. None are more pernicious than those wagering money or other things of value on the result of elections. Such wagers 'strike at the foundations of popular institutions, corrupt the ballot-box, and interfere with the freedom and purity of elections.’ ” In Quillian v. Johnson, 122 Ga. 49, 58 (supra), this court held that money paid on a wagering policy of insurance could be recovered back, under the section of the Code which is now under consideration. The ruling of the court in that case is as follows: “By express statute, in this State, money paid or property delivered up in pursuance of a gaming contract may be recovered from the winner by the loser, if suit therefor be instituted within six months after the loss.” In the decision Justice Evans said: “We recognize *837the correctness of the proposition, that, as a general rule, neither a court of law nor a court of equity can lend its aid in enforcing an illegal contract or in distributing the fruits thereof. Garrison v. Burns, 98 Ga. 762 [26 S. E. 471]; Exchange Bank v. Loh, 104 Ga. 446 (3) [31 S. E. 459, 44 L. R. A. 372], However, by express statute in this State (Civil Code, § 3671), 'money paid or property delivered up’ in pursuance of a gaming contract, 'may be recovered back from the winner by the loser, if he shall sue for the same in six months after the loss.’ Thus, money or property lost in betting on a horse race may be recovered, if suit therefor be instituted within the statutory period. Dyer v. Benson, 69 Ga. 609; Doyle v. McIntyre, 71 Ga. 673. And money posted as a wager on the result of an election may be recovered from the stakeholder, if, after notice that the bet has been withdrawn, he nevertheless pays it over to the winner without the assent of the retracting party. McLennan v. Whiddon, 120 Ga. 666. So, also, may money be recovered from an agent by a principal who placed the money in the agent’s hands for the illegal purpose of playing the game of 'futures.’ Clarke v. Brown, 77 Ga. 606.”
"Under the above decisions, contracts for the purchase and sale of articles, when the actual delivery thereof is not contemplated, but settlement is to be made upon the basis of the difference between the contract price and the market price, are gaming contracts, and money lost in such a transaction can be recovered by the loser from the winner if suit is brought within six months. There are certain eases which, at first blush, would seem to support the contrary doctrine. In Thompson v. Cummings, 68 Ga. 124, this court ruled that “he who deposits 'margins’ in the purchase of cotton futures can not recover them by set-off or otherwise.” That ruling was based on the principle that where parties engage in an illegal transaction the court will not interpose to grant any relief. In that ease the suit was not brought under the statute embraced in Code section 4256; but was an effort of the defendant, under the common law, to set off against the plaintiff’s claim margins deposited in the purchase of cotton futures. The set-off was not pleaded within six months after the margins were lost, but it was an effort to set them off under a proceeding under the common law and not under said statute. In Clarke v. Brown, 77 Ga. 606, the action was brought by a principal to recover from *838his agents money deposited for the purchase of futures; and this court held that an action for money had and received would lie, the suit not being one upon a wagering contract nor to recover profits made in a gaming venture. In Lawton v. Blitch, 83 Ga. 663, the action was not brought under the statute which we have under consideration, but was an effort to recover losses sustained by buying and selling futures, independently of said statute. In Miller v. Shropshire, 124 Ga. 829, this court held that “inasmuch as the General Assembly permits one paying a license tax to engage in the business of buying and selling ‘futures,’ he can not be subjected to the penalty imposed by that section,” the same being the section which we have under consideration. That decision was rendered on February 15, 1906. Since the passage of the act of August 20, 1906 (Acts 1906, p. 95), now embraced in sections 4258 et seq. of the Civil Code of 1910, the legislature has not passed any statute permitting one, upon paying a license tax, to engage in the business of buying and selling futures; and for this reason the principle announced in the case last cited is not applicable to the one at bar. So there is nothing in these cases, when properly construed, which conflicts with the conclusion that the purchase or sale of cotton on margin, commonly called dealing in futures, is a gaming contract within the meaning of section 4256 of the Code. In view of the ruling above made, the answer to the first and second questions propounded by the Court of Appeals should be in the affirmative.
There is nothing in Alford v. Burke, 21 Ga. 46, Leverett v. Stegall, 23 Ga. 257, Ingram v. Mitchell, 30 Ga. 547, and Smith v. Ray, 89 Ga. 838, in conflict with what is said above. In the first case just cited, it was ruled that “a party to an illegal, or immoral, or criminal contract may recover back from a stakeholder a deposit still in his hands.” In Levereit v. Stegall, it was said that if one deposit as a stake the promissory note of a third person with another, and he deliver the same to the winner after being notified to withhold it, the depositor is entitled to recover the note from the winner in an action of trover. In Ingram v. Mitchell, this court held that “When money is actually paid over upon an illegal contract, it is clear that it can not be recovered back, the contract being executed, and both parties being in pari delicto.” In that case the suit was not brought under the statute *839with which we are dealing, but was brought under the common law. In Smith v. Ray, this court held that “One who receives the money of another from a third person, by winning it -at a game of chance played with such third person, is liable to the owner in an action for money had and received, and the right of action does not rest upon the statute, but upon the common law.” In view of the decisions cited and dealt with above, I am clearly of the opinion that money lost by one dealing in futures, when the delivery of the article dealt in is not intended, but a settlement upon the difference between the contract price and the market price is contemplated, can be recovered by the loser from the winner if suit is brought therefor within six months from the date of the loss. The section of the Code with which we are dealing is broad and comprehensive; and this court on various occasions, as is shown above, has held that this section applies to all gambling and all gaming. I do not think that this court should now say, in view of the comprehensive language of this section and of the interpretation put upon it by this court in the eases cited above, that the transaction now under consideration does not come clearly within this provision of this section of the Code. In view of the great prevalence of gaming and gambling, this section of the Code should not be emasculated by limiting it to the forms of gambling enumerated in the opinion of the majority, but should be held applicable to all forms of gaming and gambling. So I am constrained to dissent from the opinion of the majority.