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The opinion of the court was delivered, January 16th 1872, by

Thompson, C. J.

Having attentively listened to an earnest and able argument, to convince us of error committed by the learned judge who tried the case below, and a no less able argument to the contrary, by the learned counsel for the defendants in error, we have addressed ourselves assiduously to the task of determining, by principles of law, which party is right in the contest, and the following discloses the result.

The general charge has been considered in order to discover from it the force of special objections to it, as well as to determine whether its instructions were in themselves sufficient for the points propounded. The scrutiny has resulted in satisfying us of its unobjectionable character in both aspects. Certainly a judge who has explicitly announced a given doctrine or view, supposed to be applicable to a case trying, in the general charge, need not repeat the same thing in answer to points. He may refer to his charge for the answer. Error occurs where the judge has said nothing in his charge on the subject-matter of the points, and then neglects or refuses to answer specifically points material to the case. The failure to answer points is not per se error, and, unless the party propounding them can show that they were material and ought to have been answered as prayed, there is no error.

The charge before us, referred to for answers to points submitted by the defendants when examined, will be found to be very sufficient answers to the points raised. There was, therefore, no error in not answering them specifically. The condensation by the learned judge of the aspects of the case into three propositions, was a very satisfactory presentation of the matters to be considered by the jury, and were all sustained by the clearest principles. They will appear in the report of the case.

*331The main contention in the case, however, was not this, but whether or not the transaction, an ordinary purchase and sale of stocks through the plaintiffs as brokers, was or was not a gambling transaction, and one which should for that reason deprive them from recovering for money advanced and commissions earned. This, the learned judge instructed the jury, would be the character of a transaction where, from the beginning, it was agreed and understood, that the stock dealt for was not intended to be deliv-fe ered, but that the parties were to settle their mutual wagers on the prices of the stocks, by paying the difference between sales at different times. He further explained, saying, “ I submit to you, that if the transaction was a speculation founded upon a real sale and purchase of stocks by the plaintiffs for the defendants, actually sold, bought and delivered, then it was not a gambling transaction and not an unlawful contract.”

This was right, but it did not go far enough, according to the theory of the plaintiffs in error. They insisted that the jury should have been instructed that all purchases of stocks, with a view to re-sell and make profit on their rise, or contracts to furnish stocks on time, should be declared gambling transactions and illegal, not only between buyer and seller, but as to the brokers or agents through whom the sales and purchases had been made. This would make a great inroad into what has, for an indefinite period been regarded as a legitimate business, and would either destroy it altogether, or if continued, put the brokers at the mercy of those for whom they transact such business. Let it be understood that a broker has no power to recover either for advances or commissions, however honestly he may have dealt, „and there will be found enough persons whose easy consciences would throw their losses upon the shoulders of those who advanced the money and earned commissions in their service. It would be a very palpable wrong to the brokers who are licensed to do such business, if such were held to be the law. To this extent Brua’s Appeal, 5 P. F. Smith 294, never was intended to go. That case came before the court on the report of auditors, expressly finding that the notes in question were given for stakes or bets on the rise and fall of certain stocks — that neither party was to receive or deliver any stocks. The auditors said: “ Kauffman in effect betted that in twenty-five'days Harlem stock would sell at less than $60 per share; but viewed in the aspect of legal principles and precedents, the contract was one which the parties were free to make, and the obligations created by it, and the subsequent notes are in law untainted by any fraud and deceit, or want of consideration,” and therefore they held that the “ notes” should come in for a pro rata share of the assets of the decedent’s estate.

This we regarded as a “ most lame and impotent conclusion.” Having nothing to do but to administer the law against betting *332and gambling, we held the consideration of the notes illegal, and the contract incapable of enforcement. This result cannot be doubted. But we held in the same case, that stock-brokerage was not necessarily gambling. We said, “ the bond fide purchase of stocks no doubt can be conducted lawfully, and is generally so conducted without in the least trenching on the gambler’s province. * * * Bond fide time contracts about stocks and other personal property, seem from custom to be necessary in our country, and although such transactions may be greatly affected by the rise and fall of the market, yet they are not for this reason obnoxious to the objections made to the transactions we are now considering ; for in such case the losing party has something for his money, but the losing gambler nothing.”

The doctrine contended for here would place all stock contracts on the same footing, if making profits may be deduced as the motive of the parties buying and selling. When stocks are bought and sold, to be actually delivered, it is a very different case from that of Brua’s Appeal, supra, where the transaction was found to have been simply a bet or wager. In the one case the transaction is within the scope of a business everywhere recognised as legitimate; in the other, it is a gambling transaction, which courts will never exert their power to enforce, if not entirely executed by the parties.

Whether the transactions embraced in this case were bond fide, or were merely in a form to cover gambling transactions, after a full explanation of what constituted the true difference in law between them, was left to the jury to say upon the evidence, to which class they belonged. The jury found them to have been bond fide actual sales, and purchases of stocks to be delivered. 'As there was no error in these instructions, this result settled the defence against the defendants below and plaintiffs in error. The instructions on all the other questions raised here, were proper and such as the case required. We must therefore affirm the judgment.

Judgment affirmed.

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