614; Rosewarne v. Billing, 15 C. B. N. S. 316; 109 E. C. L. 316. And it has been held that a request to pay may be inferred from an authority to bet. Oldham v. Ramsden, 44 L. J. C. P. 309. Having regard to these decisions, I cannot hold that the statute above referred to precludes the plaintiff from maintaining his action."

1. Fareira v. Gabell, 89 Pa. St. 89; Ruchizky v. De Haven, 97 Pa. St. 202; Waugh 7. Beck, 114 Pa. St. 422; 60 Am. Rep. 354; Flagg v. Baldwin, 38 N. J. Eq. 219; 48 Am. Rep. 308; Irwin v. Williar, 110 U. S. 510; Embrey v. Jemison, 131 U. S. 336; Bartlett v. Smith, 13 Fed. Rep. 263; In re Green, 7 Biss. (U. S.) 338; Clarke v. Foss, 7 Biss. (U. S.) 540; Crawford v. Spencer, 92 Mo. 498; 1 Am. St. Rep. 745 and note. See also Sondheim v. Gilbert, 117 Ind. 71; 10 Am. St. Rep. 23 and note; Kahn v. Walton, 46 Ohio 195; Cothran v. Ellis, 125 Ill. 496: Whitesides v. Hunt, 97 Ind. 191; 49 Am. Rep. 441; First Nat. Bank v. Oskaloosa Packing Co., 66 Iowa 41; Rumsey v. Berry, 65 Me. 570; Marshall . Thurston, 3 Lea (Tenn.) 740; McLean v. Stuve, 15 Mo. App. 317; Ream v. Hamilton, 15 Mo. App. 577; Warren 7. Hewitt, 45 Ga. 501. Wyman v. Fiske, 3 Allen (Mass.) 238; So Am. Dec. 66, which arose out of a stock-jobbing transaction, supports the English rule.

But in Harvey v. Merrill, 150 Mass. 1; 15 Am. St. Rep. 159, the court decided that the broker who knowingly makes a wagering contract and advances money on account thereof, at the request of his principal, cannot recover either the money so advanced or commissions for his services. After a review of the American and English

authorities, the court said: "It is not denied that wagering contracts are void by the common law of Massachusetts; but it is argued that they are not illegal, and that, if one pays money in settlement of them at the request of another, he can recover it of the person at whose request he pays it. It is now settled here that contracts which are void at common law, because they are against public policy, like contracts which are prohibited by statute, are illegal as well as void. They are prohibited by law because they are considered vicious, and it is not necessary to impose a penalty in order to render them illegal."

In Irwin v. Williar, 110 U. S. 499, it is said: "In England, it is held that the contracts, although wagers, were not void at common law, and that the statute has not made them illegal, but only non-enforceable; Thacker 2. Hardy, 4 Q. B. Div. 685; while gen erally, in this country, all wagering contracts are held to be illegal and void as against public policy." Citing Dickson v. Thomas, 97 Pa. St. 278; Lyon v. Culbertson, 83 III. 33; 25 Am. Rep. 349; Melchert v. American Union Tel. Co., 3 McCrary (U. S.) 521; 11 Fed. Rep. 193 and note; Barnard v. Backhaus, 52 Wis. 593; Kingsbury v. Kirwan, 77 N. Y. 612; Love v. Harvey, 114 Mass. So. It was accordingly held that when a broker is privy to the unlawful design of the parties, and brings them together for the very purpose of making an illegal agreement, he is particeps criminis and cannot recover for services rendered or losses incurred by himself in behalf of either in forwarding the transaction.

2. Ruchizky v. De Haven, 97 Pa. St.

202; Fareira v. Gabell, 89 Pa. St. 89; Flagg v. Baldwin, 38 N. J. Eq. 219; 48 Am. Rep. 308.

1. Ruchizky v. De Haven, 97 Pa. St. 202.

2. In Peters v. Grim, 149 Pa. St. 163, decided in the Supreme Court of Pennsylvania in May, 1892, Mitchell, J., said: "In dealing with stock transactions falling within or in any way connected with wagering contracts, the law of Pennsylvania is of exceptional and, for myself I would say, of illogical and untenable severity in its interference with the business contracts of parties sui juris, and entirely competent to manage their own affairs. But, even in this class of cases, the decisions have only gone so far as to sustain the opening of the whole transaction after it has nominally closed, where the demand is for a part of the actual gains or losses of the illegal acts. See Brua's Appeal, 55 Pa. St. 294; North Phillips, 89 Pa. St. 250; Dickson v. Thomas, 97 Pa. St. 278; Griffiths v. Sears, 112 Pa. St. 523. Even Fareira v. Gabel, 89 Pa. St. 89, and Ruchizky v. De Haven, 97 Pa. St. 202-two extreme cases, of which it is justly said by Mr. Biddle, in his Law of Stock-brokers, p. 308, that they are 'opposed in principle to all the decisions both of the English courts and of every court of every state in the Union'-were decided upon the ground that the cause of action was loss in the illegal transactions."

V.

3. Bartlett v. Smith, 13 Fed. Rep. 263; Lehman v. Strassberger, 2 Woods (U. S.) 554; In re Green, 7 Biss. (U. S.) 338; Clarke v. Foss, 7 Biss. (U. S.) 553; Marshall . Thurston, 3 Lea (Tenn.) 740; Warren v. Hewitt, 45 Ga. 501; Owen v. Davis, 1 Bailey (S. Car.)

315; Durant v. Burt, 98 Mass. 167. See also Armstrong v. Toler, 11 Wheat. (U. S.) 258.

In Warren v. Hewitt, 45 Ga. 507, the court said: "The judge, in his charge to the jury, and in his judgment refusing a new trial, treats Warren, Lane & Co. as a principal party to the transaction, and as selling the cotton to Hewitt. This error is fundamental. The evidence shows that they only acted as his agents in effecting the purchase in Baltimore. The transaction for the purchase of the cotton was clearly such as indicated in section 2596 of the Code, and would not have been enforced, as between Hewitt and the seller, in favor of either party. But where the transaction has been completed, and Warren, Lane & Co. seek to recover advances made by them, in good faith, as the agents of Hewitt, which advances were authorized or ratified by him, we think they are entitled to do so."

In Bartlett v. Smith, 13 Fed. Rep. 268, Nelson, J., after stating the law applicable to the case if it should be found that the brokers were privy to and knowingly assisted in the illegal transaction, charged the jury as follows: "On the other hand, if you believe the evidence shows that the plaintiffs, acting as the defendant's brokers in the sale and purchase of wheat, without disclosing the name of their principal, entered into bona fide contracts for the actual sale and delivery of wheat with third parties for defendant's account, and at his request subsequently settled the losses and paid the amount due under the contracts, they are entitled to recover from the defendant the moneys thus paid out at his request."

1. Romaine v. Van Allen, 26 N. Y. 309; Lawrence v. Maxwell, 6 Lans. (N. Y.) 469; Nauman v. Caldwell, 2 Sweeny (N. Y.) 212; Markham v. Jaudon, 41 N. Y. 235; Ritenbaugh v. Ludwick, 31 Pa. St. 131; Bank of Montgomery v. Reeve, 26 Pa. St. 143; North v. Philips, 89 Pa. St. 250; Douglass v. Kraft, 9 Cal. 562. In Page v. Fowler, 39 Cal. 412; 2 Am. Rep. 462, the court seemed disposed to change the rule, but in Dent v. Holbrook, 54 Cal. 145, it was again applied. See also Shepherd v. Johnson, 2 East 211; Downes v. Back, 1 Stark 318; McArthur v. Seaforth, 2 Taunt. 257; Harrison v. Harrison, 1 C. & P. 412; II E. C. L. 436; Owen v. Routh, 14 C. B. 327; 78 E. C. L. 327; Williams v. Archer, 5 C. B. 318; 57 E. C. L. 318; Archer v. Williams, 2 C. & K. 26; 61 E. C. L. 25; Cud v. Rutter, 1 P. Wms. 572; France v. Gaudet, L. R., 6 Q. B. 199.

2. Baker v. Drake, 53 N. Y. 211; 13 Am. Rep. 507; 66 N. Y. 518; 23 Am. Rep. 80; Gruman v. Smith, 81 N. Y. 25; Colt v. Owens, 90 N. Y. 368; Wright v. Bank of Metropolis, 110 N. Y. 237. In Baker v. Drake, 53 N. Y. 211; 13 Am. Rep. 507, there is a very thorough consideration of the subject, and the earlier case of Markham v. Jaudon, 41 N. Y. 235, is overruled on the question of damages and the modified rule stated in the text is adopted.

In Galigher v. Jones, 129 U. S. 193, Bradley, J., said: "It has been assumed, in the consideration of the case, that the measure of damages in stock transactions of this kind is the highest intermediate value reached by the stock between the time of the wrongful act complained of and a reasonable time thereafter, to be allowed to the party injured to place

himself in the position he would have been in had not his rights been violated. This rule is most frequently exemplified in the wrongful conversion by one person of stocks belonging to another. To allow merely their value at the time of conversion would, in most cases, afford a very inadequate remedy; and, in the case of a broker, holding the stocks of his principal, it would afford no remedy at all. The effect would be to give the broker the control of the stock, subject only to nominal damages. The real injury sustained by the principal consists not merely in the assumption of control over the stock, but in the sale of it at an unfavorable time, and for an unfavorable price. Other goods wrongfully converted are generally supposed to have a fixed market value at which they can be replaced at any time; and hence with regard to them, the ordinary measure of damages is their value at the time of conversion, or in case of sale and purchase, at the time fixed for their delivery. But the application of this rule to stocks would, as before said, be very inadequate and unjust. The rule of highest intermediate value as applied to stock transactions has been adopted in England and in several of the states in this country; whilst in some others it has not obtained. The form and extent of the rule have been the subject of much discussion and conflict of opinion. The English cases usually referred to are Cud v. Rutter, 1 P. Wms. 572, 4th ed., n. 3; Owen v. Routh, 14 C. B. 327; 78 E. C. L. 327; Loder v. Kekule, 3 C. B. N. S. 128; 91 E. C. L. 128; France 7. Gaudet, L. R., 6 Q. B. 199. It is laid down in these cases that where there has been a loan of stock and a breach of the agreement to replace it,

the measure of damages will be the value of the stock at its highest price on or before the day of trial. The same rule was approved by the Supreme Court of Pennsylvania in Bank of Montgomery v. Reese, 26 Pa. St. 143; and Musgrave v. Beckendorff, 53 Pa. St. 310. But it has been restricted in that state to cases in which a trust relation exists between the parties-a relation which would probably be deemed to exist between a stock-broker and his client. See Wilson v. Whitaker, 49 Pa. St. 114; Huntingdon, etc., R., etc., Co. v. English, 86 Pa. St. 247. Perhaps more transactions of this kind arise in the state of New York than in all other parts of the country. The rule of highest intermediate value up to the time of trial formerly prevailed in that state, and may be found laid down in Romaine v. Van Allen, 26 N. Y. 309; and Mark ham v. Jaudon, 41 N. Y. 235, and other cases-although the rigid ap plication of the rule was depreciated by the New York superior court in an able opinion by Judge Duer, in Suydam v. Jenkins, 3 Sandf. (N. Y.) 614. The hardship which arose from estimating the damages by the highest price up to the time of trial, which

might be years after the transaction occurred, was often so great that the court of appeals of New York was constrained to introduce a material modification in the form of the rule, and to hold the true and just measure of damages in these cases to be the highest intermediate value of the stock between the time of its conversion and a reasonable time after the owner has received notice of it to enable him to replace the stock. This modification of the rule was very ably enforced in an opinion of the court of appeals delivered by Judge Rapallo, in the case of Baker v. Drake, 53 N. Y. 211; 13 Am. Rep. 507, and in Gruman v. Smith, 81 N. Y. 25; Colt v. Owens, 90 N. Y, 368; Wright v. Bank of Metropolis, 110 N. Y. 237. It would be a herculean task to review all the various and conflicting opinions that have been delivered on this subject. 'On the whole it seems to us that the New York rule, as finally settled by the court of appeals, has the most reason in its favor, and we adopt it as a correct view of the law."

1. Taussig v. Hart, 49 N. Y. 301; S N. Y. 425.

2. Bate v. McDowell, 49 N. Y. Super. Ct. 106.