dissenting. The case is so fully and fairly stated in the opinion of Mr. Justice Gary that any restatement here would be wholly unnecessary. The question arises under a demurrer to the complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action. This action is, confessedly, brought for the recovery of money paid by plaintiff to defendant in pursuance of a contract which the plaintiff, in his complaint, shows was an illegal and void contract under our statute law, viz: “gambling in cotton futures;” and the plaintiff, in his complaint, expressly bases his right to recover upon section 1861 of the Revised Statutes. The first allegation in the complaint, after the formal allegation of defendant’s corporate character^ is, “that on the 21st day of July, 1897, the plaintiff contracted with the defendant to make a sale for him of cotton for future delivery, to wit: in November, 1897, and, to cover the loss that might be *181sustained in such sale, paid over to the defendant, as a margin, the sum of $150, and took its receipts for the same.” It will be observed that there is no allegation, either here or elsewhere in the complaint, that defendant made, or undertook to make, any sale of cotton for future delivery, to wit: in November, 1897; and no allegation of any loss sustained by plaintiff by reason of any such sale. It is obvious, therefore, that the complaint fails to state the facts necessary to constitute a cause of action under the first branch of section 1861 of the Revised Statutes; for it is there declared that any person contracting for the sale of certain commodities, to wit: cotton, &c., for future delivery, who shall pay to any person any sum of money “for and on account of a loss sustained by reáson of such contract, bargain or agreement, shall be at liberty, within three months next ensuing after such payment, to sue and recover the amount so lost and paid,” &c. Now, it is obvious that the complaint fails to state facts sufficient to constitute a cause of action under the first branch of section 1861, for there is no allegation that any contract for the sale of November cotton had been made, and no allegation that any loss had been sustained by reason of such contract. Indeed, at the time this action was commenced, I do not see how it would be possible to ascertain whether there would be any loss sustained by reason of a contract for future delivery in November, even if such a contract had been alleged, for the complaint bears date 20th of October, 1897, and it was admitted in open Court, upon the argument here, that the action was commenced on that day. It seems to me clear, therefore, that there was no error on the part of his Honor, Judge Ernest Gary, in holding that the complaint did not state facts sufficient to constitute a cause of action under the first branch of section 1861 of the Revised Statutes, under which the complaint was manifestly drawn.
It is said, however, that the complaint may be sustained under the second branch of sec. 1861 of the Revised Statutes. The second branch of the section, substantially, pro*182vides that any- person who shall act as agent, “in the making or execution of any such contract” (by which I understand a contract for the future delivery of cotton), “or who shall accept or receive * * any money * * in furtherance thereof,” shall be liable to an action for the recovery of the money so received. Here again there is an absence of the material allegations that the defendant, as agent of the plaintiff, made or executed any contract for the sale of cotton for future delivery; and, on the contrary, the allegation in the second paragraph of the complaint negatives the idea that the money sued for was paid to defendant in furtherance of the making or execution of any contract for the sale of cotton for future delivery which defendant agreed to make, but which is not alleged to have been made; for the allegation in that paragraph is that this money was paid “to cover the loss that might be sustained in such sale,” which does not appear to have been ever made. It seems to me that it will be much more likely to effect the wise and beneficent purpose of the statute to hold both parties to the strictest compliance with the provisions of the statute; and when either party invokes the aid of the courts to obtain the privileges which may be accorded to him, he should be held to the strictest compliance with the conditions of the statutes which he invokes.
Neither do I think that this complaint can be sustained as stating a cause of action for money had and received at common law. In the first place, it is not framed in that aspect; and even if it were, it could not be sustained, under the case of Mordecai v. Dawkins, 9 Rich., 262, where it was held that a note given for money lent to game with is void, even in the hands of an innocent holder. In that case, O’Neall, J., in delivering the opinion of the Court, uses this strong language: “We have, therefore, concluded, on a full review, that it is better at once to say, that not only the security for the reimbursement of the money lent to play with is void, but also that the money itself cannot be recovered back.” How much stronger is this case, where it appears *183on the face of the complaint that one of the parties to a gambling contract is seeking to recover back money placed in the hands of another for the express purpose of carrying out such illegal and immoral contract. The case of Tate v. Pegues, 28 S. C., 463, differs materially from this case, for there it did not appear that the plaintiff had any intention of violating the law. They simply employed Pegues as their agent to sell fertilizers — a contract which, as said in that case, “was certainly not unlawful.” See, also, comments on that case in Gist v. Telegraph Co., 45 S. C., at pp. 371—2. See, also, the remarks of Dd. Mansfield, in Holman v. Johnson, 1 Cowp., 341, as well as the language of Dixon, C. J., in Clemens v. Clemens, 28 Wisc., 637 (9 Am. Rep., at p. 531); both quoted with approval in Milhous v. Sally, 43 S. C., at pp. 324-5, where the principle is laid down that “no Court will lend its aid to a man who founds his cause of an action upon an immoral or illegal act” — even though the result may be that an equally guilty party obtains an advantage thereby. The Court simply leaves the parties in pari delicto in the situation in which they have placed themselves, and will not extend its aid to either party. Bostick v. McClaren, 2 Brev., 275; Harvin v. Weeks, 11 Rich., at p. 608. Besides all this, no such question was made before the Circuit Judge nor was it presented by any of the exceptions, and hence is not properly before this Court.
It seems to me, therefore, that the judgment of the Circuit Coyrt should be affirmed.