WAGERS. 411 



again. There is no gaming or wagering in a transaction 

 of tliat kind ; the broker has no interest in the stock, and 

 it does not matter to him whether the market rises or 

 falls ; but when a transaction comes within the statute 

 against gaming and wagering, the result of it does affect 

 both parties" (k). 



The Court having arrived at the conclusion that the 

 transaction was not a contract by way of gaming and wager- 

 ing, the broker was entitled to recover on the general prin- 

 ciple that an agent is entitled to indemnity against all 

 lawful liabilities incurred by him on behalf of his principal ; 

 but Lindley, J., went still further, and held, adopting the 

 opinion expressed by Brett, L.J., in Coojjer v. Neil (l), that 

 even assuming that the contract was a wagering one, the 

 statute only affected the contract which made the wager (m), 

 and that the plaintiff having incurred a lawful liability at 

 the request, and on behalf of the defendant, was therefore 

 entitled to be indemnified (■«). But since The Gaming Act, 

 1892, as to which see post, p. 418, it is apprehended that 

 the broker would be precluded from recovering under such 

 circumstances, as the implied promise by the principal to pay 

 the broker would be rendered null and void by that Act. 



Where the defendant instructed the plaintiffs, who were Sale of 

 stockbrokers, to sell the prospective dividends on certain pro^P^'^'i^s 

 railway stock, which they accordingly sold to certain jobbers, 

 calculating the dividend at a certain rate per cent ; but the 

 dividend, when declared, amounted to a higher rate than 

 that which the plaintiffs had calculated, and according to 

 the usage of the Stock Exchange, they therefore paid the 

 jobbers the difference ; it was held that they were entitled 

 to recover this difference from the defendant, as the con- 

 tract was no more a wager than, as suggested by Black- 

 burn, J., the purchase from a fisherman of the next haul 

 of his net at a fixed price would be, and was not prohibited 

 by the existing rules of the Stock Exchange (o) . 



{k) These remarks, as well as Cambers, 15 C. B. 562; 24 L. J., 



those of Cotton, L.J., as to the C. P. 121; Jesopp \. Lutwyche, 10 



essence of a gaming contract, 4 Exch. 614 ; 24 L. J., Ex. 65 ; 



Q. B. D. at p. 695, were recently Eoseioarne\. Billing, lo C^^'S.S. 



adopted by Lord Herschell, L.C., in 316 ; 33 L. J., C. P. 55; Ex- parte 



delivering the judgment of the J. C. Rogers, 15 Ch. D. 207; 43 L. T., 



in the very similar case of Forget v. N. S. 163 ; 29 "W". R. 29— C. A. ; 



Ostigny, [1895] App. Cas. 318. Sead v. Anderson, 13 Q. B. D. 779 



{I) 27 VV. E. 159. — C. A. ; Mollison v. Jfoltir, 16 Ct. 



(m) 4 Q. B. D. 687. of S. Cas., 4th Series, 350. 



(«) Thacher v. Bardy, 4 Q. B. D. (o) Martens. Gibbon, 33 L. T., N. 



at pp. 687, 688. See also Knight v. S. 561 ; 24 W. E. 87— C. A. Since 



