Opinion by
The plaintiff’s claim in this action is founded upon the Act of April 22, 1794, 8 Sm. L. 177, P. & L. Dig. 2204, under which he seeks to recover for certain wagers or bets he had made with the defendants upon the future rise and fall of the market price of divers stocks usually dealt in upon the public stock exchange.
The statement shows that the wagers or bets were never completed, and though the plaintiff paid to the defendants the sum of $165 in consideration of the wagers and for the better securing the payment thereof in the event of the same being lost by the plaintiff, they, the defendants, did not purchase or sell any stocks, or expend any part of the said money for the use or benefit of the plaintiff, and that neither party at any time intended to purchase, deliver, or sell any stocks or securities, and, further, that the defendants applied the said sum to their own use. The transaction, as it is set out in the plaintiff’s statement, is not such a game of address, or hazard, or other play as is contemplated by the act of 1794. Betting upon the fluctuation of the market quotations of stock may be extremely hazardous; but it has been held by the Supreme Court so often that it ought not to require reiteration, that dealing in stocks, even on margin, is not gambling: L. H. Taylor & Company’s Estate, 192 Pa. 304.
The assignments of error are not sustained and the judgment is affirmed.