The opinion of the court was delivered, January 26th 1874, by
Agnew, C. J.This was not a transaction in stocks by way of margin, settlement of differences, and payment of the gain or loss, without any intention to deliver the stocks. Such transactions are-mere wagers. But here the stock was in every instance actually sold and delivered, and the transaction carried into final execution. The plaintiffs, who were the brokers of the defendant, were not even aware that he was selling “ short” until the term of credit was expiring, and he bought to fill his sales. It will not do to say, because there is so much gambling in stocks, that every sale “short” as it is termed, is ipso facto a wager. It is evidence, it is true, but there must be other facts to characterize the transaction, and to show the actual intent of the parties was to wager merely upon the prospective price. Judgment affirmed.