#### Rial Scott, Defendant in Error, v. F. E. Baker, Plaintiff in Error.

Gambling—when money loaned to he used in, cannot he recovered. Money loaned to enable the borrower illegally to speculate in grain cannot be recovered even though the lender did not expressly advise, abet or encourage the borrower in the commission of the illegal act; it is sufficient if the lender knew at the time he furnished the money that it was to be used for the purchase of illegal options.

Assumpsit. Error to the Circuit Court of Greene county; the Hon. Owen P. Thompson, Judge, presiding.

Heard in this court at the November term, 1907.

Reversed and remanded.

Opinion filed April 21, 1908.

Mark Myerstein and J. M. Riggs, for plaintiff in error.

Hanley & Cox and Rainey & Jones, for defendant in error.

Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a suit in assumpsit by Rial Scott, defendant in error, against F. E. Baker, plaintiff in error. The declaration consists of the common counts only. The *152defendant pleaded non-assumpsit, the Statute of Limitations, and that the money claimed was knowingly loaned by the plaintiff to the defendant to be used in gambling in grain. With the plea of general issue the defendant filed an affidavit of merits, which, after averring that he verily believed that he had a good and complete defense to the suit upon the merits to the, whole of plaintiff’s demand, averred that the plaintiff verily believed that the alleged cause of action in th,e declaration mentioned, accrued more.than five years prior to the institution of the suit, and that the same was for money loaned and advanced by the plaintiff to the defendant for the express purpose to be used by the defendant as margins on what are known as grain option deals, and that such money was used by the defendant on margins in such gambling option ■ deals. The third plea, omitting the formal parts, reads substantially as follows: “that whatever amount of money, if any, which the plaintiff alleges and claims, in his declaration to be due from the defendant to the. plaintiff, or any sums of money alleged in-said declaration, which it is claimed the defendant obtained from the plaintiff, in any manner whatsoever, if any, were knowingly lent and advanced by the plaintiff to the defendant for the express purpose to be used by the defendant for margins on option deals in grain which the defendant was to buy or sell, without any intention of receiving or delivering such grain so purchased or sold, and which said deals in said grain were then and there intended to be made by the defendant to settle accounts in such margin deals on grain by the payment of the differences, and not by the delivery or receiving of any grain to be so purchased or sold by the defendant; that said amounts were all so used by the defendant with the advice and knowledge of the plaintiff, for the purchase and sales of such grain upon the payment of margins, and such purchases and sales were so made by the defendant with the knowledge and advice of the plaintiff, for the express pur*153pose of dealing in futures or options in the grain market, to be bought or sold according to the fluctuations of the grain market, and to be settled by the differences and not by the delivery or receipt of grain; that all of said option deals, when made, were so made' by the defendant, with the money so claimed by the plaintiff, in his declaration, and were all so made, by. the defendant, with the knowledge and advice of the plaintiff, in violation of law; that the plaintiff, when he so loaned or advanced to the defendant the alleged amounts of money so claimed in the declaration, did so lend and advance the same to the defendant, knowing that the defendant would use all of the same, for the purpose of applying the same, on margins, in such unlawful deals of grain, as aforesaid; that whatever amounts of money the plaintiff did so lend or advance to the defendant were all so used by the defendant for the purpose of margins on option deals in grain, with the knowledge and advice of the plaintiff.”

Issues were joined upon the first and second pleas. To the third plea a general demurrer was interposed and sustained by the court, and the defendant elected to abide by the same. A jury was then waived and the cause tried by the court. The court found the issues in favor of the plaintiff and rendered a judgment for $2,295 against the defendant. To reverse ‘said judgment this writ of error is prosecuted.

While several errors are relied upon for reversal, they all relate to the question as to the sufficiency of the third plea.

Section 130 of the Criminal Code provides that “whoever contracts to have or give to himself or another the option to sell or buy at a future time any grain or other commodity * * * shall be fined =**=*; anc[ ajq contracts made in violation of this section shall be considered gambling contracts and shall be void.” Section 131 provides that “all promises * * * the whole or any part of the considera*154tion whereof, shall he for money *. * * won by gaming * * * or for the reimbursing or paying any money or property knowingly lent or advanced at the time and place of such play or bet to any person or persons so gaming or betting; or that shall, during such play or betting, so play or bet, shall be void and of no effect.” Rev. Stat. 1905, p. 699.

In Cothran v. Ellis, 125 Ill. 496, the court, in construing the foregoing section, says: “It is clear from this section of the statute (section 131) without regard to the common law, there can be no.such thing as a valid wagering contract in this state, and that he who knowingly advances money or other property to either of the contracting parties to be used for such purpose, is equally guilty with the parties to the wager, and no action will lie against the borrower to recover it back.” It is there further held that a deal in “futures” or “options,” to be settled according to the fluctuations of the markets, is void by the common law as contrary to public policy and as a crime against the state.

It is insisted by the defendant in error that the plea should contain an averment that advice or encouragement was given to the borrower by the lender before the loan had been actually made and the money had become the exclusive property of the borrower, or that the terms of the loan made it obligatory upon the defendant to use the money for the purpose for which it was borrowed.

Under the foregoing construction of the statute, we think the facts averred in the plea, if established, present a full and complete defense to the present action without, regard to whether the plaintiff expressly advised, abetted or encouraged the defendant in the commission of the illegal act, and that it is sufficient if the lender knew at the time he furnished the money that it was to be used for the purchase of illegal options.

Such knowledge is expressly averred in the plea in the following language: “that the plaintiff, when he so loaned or advanced to the defendant the alleged *155amounts of money so claimed in the declaration, did so lend and advance the same to the defendant, knowing that the defendant would use all of the same for the purpose of applying the same on margins in such unlawful option deals of grain as aforesaid.”

In the case of Charleston State Bank v. Edman, 99 Ill. App. 235, relied upon by defendant in error, the losses to pay which the money sued for was borrowed had fully accrued and the illegal option deal in which such losses were sustained, had been closed, prior to the timé the money was loaned by the plaintiff to the defendant, with which to settle the same. Such case is thus distinguishable from that at bar.

We are further of opinion that the nature of the defense as set out in the defendant’s affidavit of merits was sufficiently specific and in substantial compliance with the requirements of section 55 of the Practice Act. Laws of 1907, p. 455.

Because of the error of the court in sustaining the demurrer to the third plea, and in refusing to admit' evidence in support of the same, the judgment must be reversed and the cause remanded.'

Reversed and remanded.