rem, it cannot, in a suit concerning personalty, | fluence and of mental unsoundness. The Court be attacked collaterally, nor, by a late decision may not shut its eyes to its own records, which, in Pennsylvania, even in an action of ejectment. in this instance, show that no evidence touching (Wilson v. Gaston, 38 Leg. Int. 43.) But it the validity of the will was submitted, and that differs from proceedings purely in rem in this, the prayer for an issue was refused on the sole that before it can receive the impress of this ground that the petitioner was a volunteer. binding character, notice of its pendency must The net result of the proceeding was the deterhave been conveyed to all parties in interest. A mination of an inquiry into the interest of the glance at the procedure which prevails in Eng-party contesting. Such an inquiry, however, land will prove this. According to Jarman was a mere preliminary to the contest, and formed (Treatise on Wills, ed. 1849, vol. 1, p. 215) a no part of the contest itself; and it was, morewill is proved in common form when the execu- over an inquiry which the proponents of the will tor presents it before the Judge, and in the ab- had a clear right to institute before the contest sence of and without citing the parties interested, could be begun. (Hingeston v. Tucker, 2 Sw. produces witnesses to prove the same. This & Tr. 596.) If they failed to exercise the right probate may be re-examined at any time within at an earlier stage in the case than they did, thirty years from its date. A probate in solemn form, or by form of law, as it is sometimes called, is a probate made by the Judge after all the persons whose interests are affected by the will have been duly notified and have had an opportunity to be heard. The persons so cited appear to be the next of kin and "all others pretending interest in general." (1 Williams on Executors, 335.) After the will has been proved in this form and admitted to record, the probate is held generally to be forever binding. (1 Jar. 217; 1 Williams on Executors, 7th ed. 335; 2 Greenl. Ev. § 692.) In our own State, the probate of wills before the Register is ordinarily without notice, and therefore according to the common form. It is only upon appeals to the Register's Court, whose functions in this county are exercised by the Orphans' Court, that such notice is required by the Act of 15th March, 1832, and the proceedings are assimilated to those by solemn form. We are not now called upon to decide how far a party who is manifestly interested in the will, but who is shown by the record not to have been notified, would be estopped from a separate appeal by the plea of res adjudicata. The present appellant admits that he had knowledge of the former appeal. But he urges against the conclusiveness of the judgment on that appeal, that it was founded upon the petition of a party who was shown to have no legal standing in court. Laches cannot with fairness be charged upon his inaction in that proceeding, because the illegitimacy of the former appellant was unknown to him at the time, and the alleged kinship to the testator was of a degree which would exclude the present contestant from any share in the estate. But he urged as a second and stronger reason, that the judgment in the first appeal did not touch the questions upon which an issue was then and still is demanded, the questions of undue in they cannot set up the present shape of the records as a bar to any subsequent proceedings by genuine parties. The argument ab inconvenienti was strongly pressed at the hearing by counsel for the petitioners. But it is apparent that any embarrassment which may be caused by the form which the record has assumed, will be the result of the proponents' own act. By interjecting into an investigation respecting the validity of the will, a question which properly should have preceded it, they gave to a decree which was really interlocutory the appearance of a final judgment. If substance must in any case give way to form, the reason for the sacrifice should be at least something more than illusory. It is just within the limits of possibility that upon an appeal to the Supreme Court the former decree in this case might be set aside, and the original appellant be reinstated as a party. The incongruity would then be presented of two separate contests upon the same subject matter, the judgments in which, both in this Court and in the Common Pleas, might be opposed to each other. When this contingency with a double aspect shall have arisen, however, it will be perhaps time to deal with it. It would not be wholly without precedent. In The Goods of Langley, 2 Robertson, 407, administration was granted to the lawful widow of a decedent, although a prior administration was outstanding in a woman who had falsely represented herself to be the widow. Even the technical difficulty which has been suggested might, perhaps, be avoided by opening the decree upon the former appeal, so far as to allow the respondent to appear as a party to that record, and to prosecute the proceeding with effect. But we are of opinion that he is entitled to his independent remedy, and for that reason we dismiss the present petition. Opinion by ASHMAN, J. WEEKLY NOTES of Cases. VOL. X.] THURSDAY, JUNE 2, 1881. [No. 7. their place of business on Third Street, Philadelphia. The plaintiff decedent was on January 1, 1875, and before that, a clerk in the bankinghouse of the Northern Savings Fund, in Philadelphia, and so continued until September of 1876. In January, 1875, he began dealing in corporation-stocks, on margins, through the defendants, who acted as his brokers, not knowing him to be an infant. These transactions continued from time to time until some time in August, 1876. The value of stocks purchased by Feb. 11, 1881. the defendants for the decedent on his order during this time, at the price paid for the same, was $472,419.55. Supreme Court. July, '79, 23. Ruchizky v. De Haven et al. Where an infant enters into transactions in stocks by way of margins, without any intention to receive or deliver the stock bought or sold by his order, and in the course of such transactions from time to time makes advancements to his brokers, to be held or used by them as collateral security to them, by or on account of purchases or sales made by them for him, and the whole amount so deposited is lost in the aforesaid transactions: Held, that such a contract is condemned by public policy and void ab initio, and that, upon electing to rescind it, the infant may recover from his brokers the whole amount advanced by him to them as collateral security. In such a case it is error to regard the brokers as the agents of their customer, as the hand or medium through which he acted in transactions with other parties. The customer is dealing with them as principals. Per GORDON, J. The doctrine that where an infant has executed a contract, and has enjoyed the benefit of it, and afterwards, on coming of age, seeks to avoid it, he must first restore the consideration which he has received, that he cannot have the benefit of the one side without restoring the equivalent on the other, may and certainly does apply in certain cases, but, as a general rule, is unsound. Error to the Common Pleas No. 2, of Philadelphia County. "The plaintiff decedent, while these transactions were being carried on, transferred certain corporate stocks to the defendants and paid to them certain sums of money, all to be held and used by defendants as collateral security to them against loss by or on account of purchases or sales made by them for him." Said stocks so deposited at various times consisted of 40 shares Phila. & Erie R. R. Co., 14 shares Phila. & Reading Railroad Co., 100 shares Oil Creek and Allegheny Valley R. R. Co., 20 shares Keystone National Bank, and 40 shares Northern Savings Fund S. D. & T. Co. "The full amount thus paid and transferred to the defendants by the decedent, from Jan. 22, 1875, to June 26, 1876, estimating the stocks as cash at the prices at which they were sold by the defendants, is $7024.96. In addition to that they took 20 shares Keystone Bank in the final settlement at $900; but it would not bring that amount then, or at any time since, and has not been sold. "The defendants from time to time repaid to the plaintiff various sums of money, amounting to $2695.92. "These transactions, taking them as a whole, resulted in a heavy loss to the plaintiff decedent, and on the second day of August, 1876, the defendants sold the last of the stocks held by them for plaintiff decedent, and closed the account, which showed an indebtedness from said dece Assumpsit, by Joseph Ruchizky, a minor, by his father and next friend, Joseph Ruchizky, against Alexander H. De Haven, Hugh De Ha-dent to defendants. ven, S. L. De Haven, and Henry L. Townsend, trading as De Haven & Townsend. The plaintiff afterwards died and by suggestion filed of record his administrator, Conrad Auwaerter, was substituted in his place. The following facts appeared from a case stated, which was, by agreement of the parties, submitted to the Court: "Joseph Ruchizky, the plaintiff decedent, at the time of bringing this suit was an infant under twenty-one years of age, and only attained his majority on August 12, 1877. "The defendants are and were since January 1, 1875, and before that, stock brokers, having "Except the sum of $2695.92, repaid to plaintiff decedent by defendants, as aforesaid, he never received anything from defendants on account of such transactions, and none of the stock purchased by defendants on his order was ever actually delivered to him, except on January 3, 1876. Five shares of Pennsylvania Railroad Company stock were transferred to J. A. Landis, and cost of same charged to plaintiff decedent; but all other stocks were retained by defendants as security for the purchase-money paid therefor, and all of the said stocks were sold by the order of said decedent during, on, or before August, 1876 "The decedent was a clerk at a salary of five The defendants were, as regards the cash and hundred dollars a year, and had no estate or prop-securities deposited with them, in no sense plainerty, except that, at the commencement of his tiff's agents to contract for him with others unoperations with defendants, he left, as collateral known to him. As far as concerned said deposits security for his transactions. 40 shares of the for margins the contract was solely one between Philadelphia & Erie R. R., standing in his name, plaintiff and defendants as principals. They of the value of $759.37, and fourteen (14) shares were not to do anything with the property so of the capital stock of the Philadelphia & Read- pledged, but were merely to hold it and reimburse ing R. R. Co., standing in his name, of the value themselves if loss occurred to them in filling of $785.75. Said stock was sold by defendants, plaintiff's orders. and the proceeds lost in the aforesaid transactions, and at the time this suit was brought the decedent had no means out of which he could pay to defendants the money which they had paid him from time to time, nor did he acquire any means until the day of his death. "The 20 shares of Keystone Bank that plaintiff decedent left as collateral was in his own name. The 100 shares Oil Creek Railroad and the 40 shares Northern Saving Fund S. D. & T. Co. were both in the name of P. K. Landis," in trust for whom plaintiff decedent for some time during his transactions with defendants kept his account. Said Landis, however, for the purposes of this case, disclaimed all knowledge of or interest in said transactions. On August 4, 1876, plaintiff decedent made a settlement with defendants, and acknowledged himself to be indebted to them in the sum of $655.29. "If the Court be of the opinion that, on the above facts, their judgment should be for the plaintiff, then judgment is to be entered for plaintiff for $5229.04, and interest from August 1, 1876, but on the delivery to said plaintiff of 20 shares Keystone National Bank (formerly Keystone Bank) together with all dividends that have or may have been declared on the same between May 14, 1875, and the time when said stock shall be returned, the said judgment is to be reduced to $4329.04, with interest from above date; but if not, then judgment to be entered for the defendants, the costs to follow the judgment, and either party reserving the right to sue out a writ of error thereon." If application had been made to a Court to order collaterals so deposited to be sold, they would have refused the order, because the pledgor was a minor, and would have held it a case of executory liability on his part which the Court would not enforce against him. Smith v. Eisenlord, 2 Phila. 353. The defendants therefore had no power, by appropriating or selling the collaterals for margins, to make the contract anything but executory as against the minor. Vent v. Osgood, 19 Pick. 572. Even if the contract be held to be executed, the minor may nevertheless elect to avoid the contract and recover his property. In this case the minor received nothing from defendants, them, and the great weight of authority is to the and has therefore nothing to tender back to effect that even where a minor has received something valuable in consequence of an exe- Shaw v. Boyd, 5 S. & R. 309. Urban v. Grimes, 2 Grant Cas. 96. Williams et al. v. Baker, 21 Smith, 476. The Court entered judgment for the plaintiff on the case stated for $900, with interest from Mustard v. Wohlford's Heirs, 15 Gratt. 329. August, 1876, with the right on the part of the We submit that it is eminently proper, in view defendants to pay it by the delivery of 20 shares of the fact that such transactions are opposed to of the stock of the Keystone National Bank, to-public policy and simply a form of gambling, gether with any dividends that might have been received therefrom between May 14, 1875, and the time of delivery. (See report, in the Court below, and opinion by MITCHELL, J., Anwalter, Administrator, v. De Haven, 7 WEEKLY NOTES, 311.) Plaintiff took this writ, assigning for error the judgment entered on the case stated. Rudolph M. Shick and Benjamin Harris Brewster, for plaintiff in error. for the Court to declare that this contract is ab- Samuel Dickson, for defendants in error. In transactions such as the case stated describes the course of business is for brokers like defendants, in pursuance of their customers' money market; then again he was but a clerk on a salary of five hundred dollars a year, and had no property of any kind, except that which, in the shape of money or stocks, went into the coffers of the defendants. But the case stated itself settles this matter, for by it we are informed that the several advancements made by the decedent were to be "held and used by the defendants as collateral security to them, against loss by or on account of purchases or sales made by them for him." orders, to enter into contracts for the purchase | transaction have amounted to anything; for to or sale of stock in their own names, though for start with, he was an infant, and therefore had undiscovered principals. They become, there- no credit which could be made available in the fore, according to general law and the rules of the Board of Brokers, personally liable to the parties with whom they contract. It is to guard them against losses which they may thus suffer in entering into such contracts in behalf of their customers, that they require a margin to be placed in their hands by him as collateral security. But when losses do occur, as they have here, the brokers with whom such collateral is deposited do not retain it themselves, but pay it over to the other principal or his broker to make good the contract of sale or purchase. The defendants have paid over all plaintiff's deposits of collateral in this way. They were merely his agents to pay over differences to those with whom he was really contracting. They are stakeholders who have paid the wager over before notice. The plaintiff, therefore, cannot re It is therefore certain that the money paid by Ruchizky was not merely passed by them, for him, to some third party with whom he was dealing, but was retained by them from first to last; first as collateral security, and last as margins, percentage, shaves, etc., which fell to them. Admittedly, then, this was a gambling contract, and, as has been ruled over and over Even if the minor plaintiff had brought his again, twice so late as 8 Norris, in the cases of Faaction against the right parties, he could not reira v. Gabell and North v. Phillips, transactions have recovered, because the contract was exe-in stocks by way of margins, settlement of differcuted. cover. Ex parte Taylor, 8 De G. M. & G. 258. 2 Kent's Comm. p. *240. Reeves on Domestic Relations, p. 244. Weed v. Beebe, 21 Vt. 498. Williams v. Norris, 2 Littell, 157. ences, and payment of the gain and loss, without the intention to deliver the stocks, are mere wagers, and cannot and will not be sustained. Now, if the parties had been sui juris, the contract having been fully executed, we would not interfere to help either party. But such is not the case; for, as we have said, Ruchizky was a minor, and hence was entitled to legal protection and guardianship. It is said they knew not that he was a minor; but what does that matter? He was, nevertheless, an infant, and their want of knowledge did not make him sui juris. Moreover, they did not know, because they did not choose to inquire. They were getting his money, and like all other persons engaged in February 28, 1881. THE COURT. When, unlawful callings, they cared not whether that under the case stated, the Court below assumed money came from man, woman, or child; whethe defendants must be regarded as the agents of ther their victim was young or old, sane or inRuchizky in the buying and selling of stocks, insane. The defendants have endeavored to interother words, as the mere hand or medium pose for their protection the doctrine that where through which he acted in transactions with an infant has executed a contract, and has enother parties, it committed an error. An as-joyed the benefit of it, and afterwards on coming sumption of this kind is in the very face of the of age seeks to avoid it, he must first restore the statement before us; the parties were dealing, consideration which he received; that he cannot in stocks, but margins, and Ruchizky knew not have the benefit of the one side without reno principals but De Haven & Townsend. It storing the equivalent on the other. This rule was with them and no one else he was dealing, may, and certainly does, apply in certain cases, and with them alone he had to account. If any but, as a general rule, it is unsound. Its applishares were bought, they were bought without cation was refused in Shaw v. Boyd (5 S. & R. the remotest intention of passing them to Ru- 309), and, as was said by Mr. Justice BAILIES, in chizky. The idleness of a supposition such as Abell v. Warren (4 Vermont, 149): "If this be this, is made manifest by the fact that the pre- true, then the privilege of infants is not worth tended stock purchases amounted to the sum of possessing." But all this is foreign to the case $472,419.55, on an advancement of $7024.96; in hand, for we have here a contract condemned nor could the credit of the decedent in this by public policy-a contract that is not merely voidable but void ab initio. It follows that nothing can be imposed upon the infant as a condition of rescission; that is a result produced by legal policy, and nothing remains but to restore to the infant that which was unlawfully taken from him. The learned Judge is also mistaken in asserting that "if any shares were bought it was without the remotest intention of passing them to Ruchizky." No warrant is contained in the case stated for this allegation. The shares mentioned in the accounts were bought and sold on RuBut more than this. Ruchizky got nothing chizky's account, and though it may be possible from the defendants, either in the way of stocks that he did not intend to take up and pay for the or money; hence there was nothing to be re-stocks so bought, this would not make the constored; to him it was all loss and no gain; the tract void where the defendants had bought and defendants retained both stocks and money. It is therefore idle to talk about the refunding either by Ruchizky or his estate of that which he never had. His money was paid, not for any species of property, but for a mere chance in the stock lottery. We repeat, therefore, there is nothing to be returned to the defendants; they lost nothing in this transaction, and hence can the more easily return to the plaintiff's estate that which belongs to it. The judgment is now reversed, and it is ordered that judgment be entered for the plaintiff in the sum of $5229.04, with interest from August 1, 1876, but on return forthwith, as provided in the case stated, to the plaintiff of twenty shares of the Keystone National Bank, said judgment shall be reduced to the sum of $4329.04, with interest as aforesaid, and costs of suit. Opinion by Gordon, J. Samuel Dickson, for defendants in error, subsequently filed a petition for a re-argument, on the following grounds:— were ready to redeliver, and, as it is not agreed Thayer v. Society of United Brethren, 8 Harris, 60. P. & R. R. R. Co. v. Waterman, 4 Smith, 337. A jury alone is competent to decide whether a stock transaction clothed in the form of a sale is really a gambling contract or not. Kirkpatrick v. Bonsall, 22 Smith, 155. Lewis on Law of Stocks, etc. 103, 104. It is manifest from the language used by the Jan. '81, 108. learned Justice who delivered the opinion of the Court, that he failed to correctly understand the facts of the case, and the judgment of the Court is founded on supposed facts which never in truth existed. Contract-Illegal consideration Stock gambling A. directed B., a stock broker, to sell "short" for him five hundred shares of stock, it being understood between It was a fact found by the case stated that the defendants were the agents of Ruchizky in the buying and selling of stocks, and that they "acted as his brokers." A broker is, as defined by Worcester, "one who transacts business or makes bargains for another," and by Story on Agency, s. 28, as follows: "The true definition of a broker seems to be that he is an agent employed to make bargains and contracts between other persons in matters of trade .. for a compensation." The case stated further agreed that the purchases or sales were "made by them (defendants) for him (plaintiff)," and that the stock was "purchased by defendants on his (plaintiff's) order." Therefore when the learned Judge asserts that Ruchizky "knew no principals but De Haven & Townsend," he makes a statement which was not correct in point of actual truth, which was never asserted on the part of the plaintiff, nor conceded by the defendants, and which was in direct contradiction of the case | delphia County. stated. Held, That the evidence disclosed the fact that the conand defendant, and that the former was not therefore entract was a mere gambling contract between the plaintiff titled to recover. Error to the Common Pleas No. 4, of Phila |