Opinion by

This is another appeal in the matter of the assigned estate of L. H. Taylor & Company, brokers, which was considered in Howard’s Appeal, ante, p. 304. The law was sufficiently discussed in that case.

At the time of the assignment Taylor & Company held certain shares of stock which had been bought on appellant’s order, partly paid for by him, but not yet delivered. They were not forthcoming on demand but were credited on his account, and he presented a claim for the balance that appeared to be due him.

. The auditor found that “ as far as Taylor & Company were concerned the transactions were not fictitious, but were actual purchases and sales of stock.” He however found “ from the number and character of the transactions, that this claimant *312merely intended to gamble upon tbe rise and fall of the market.” And on the argument of exceptions, the claimant having testified that he bought the stocks as an investment, the auditor said: “ The claimant’s testimony as to what he intended to do, however, is strangely at variance with the admitted facts. From October 17, 1895, to the time of the failure, he bought and sold seven or eight lots of stock. His sales would often follow two or three days after his purchases. I am at liberty, under the decisions, to go beneath the surface and find the real character of the transactions, and it is a stretch of language to say that a man who buys stocks and habitually sells the same a day or so thereafter is purchasing for investment.” He therefore disallowed the claim. These two extracts from his report show that the learned auditor proceeded on the popular and not on the legal view of dealing in stocks, and entirely failed to apply the settled legal distinction between “ gambling ” and legitimate dealing. A man may speculate by buying and selling upon expectation of the rise or fall of the market and he is not thereby gambling. Whether he dealt for that purpose or for investment, and whether he held his purchases an hour, or a day, or a year, are wholly immaterial except as evidence. The test is whether he bought and sold, and not merely settled on differences with no intention at any time of taking his purchases or delivering his sales. That and that only is gambling. As already said, the auditor found that as to Taylor & Company the transactions were actual purchases and sales. The appellant testified that as to himself they had the same character, and this testimony was corroborated and in no way contradicted except by the auditor’s inference “ from the number and character of the transactions.” This conclusion was not warranted by anything in the evidence.

The judgment so far as it relates to this appellant’s claim is reversed and the claim directed to be allowed.