Wall v. Metropolitan Stock Exch.
| Decision Date | 20 May 1897 |
| Citation | 168 Mass. 282,46 N.E. 1062 |
| Parties | WALL v. METROPOLITAN STOCK EXCHANGE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Wilfred B. Rich, for plaintiff.
I.R. Clark and Joseph Cavanagh, for defendant.
We are of opinion that St.1890, c. 437, is a remedial, and not a penal, statute. The right given by the second section of the statute is given to the person who contracts to buy or sell upon credit or upon margin, etc., or to the person who employs another so to buy and sell, etc., and it is a right to "sue for and recover in an action of contract from the other party to the contract or from the person employed any payment made or the value of anything delivered," etc. At common law no such right of action existed, because the parties were considered in pari delicto. No penalty is imposed by the statute which the commonwealth or any other person than the person who makes the payment or delivers the thing of value can enforce, and the amount to be recovered is the amount of the payment made, or the value of the property delivered. The statute has been held to be constitutional as a statute intended to suppress a species of gambling. Crandall v. White, 164 Mass. 54, 41 N.E. 204. As the statute was passed in order to suppress transactions which were deemed to be against public policy, it my be that contracts made in advance not to take advantage of the statute would be held void. Bosler v. Rheem, 72 Pa.St. 54. See Society v. Clements, 140 U.S. 226, 11 Sup.Ct. 822; Association v. Ficklin (Md.) 23 A. 197; Hermany v. Association (Pa.Sup.) 24 A. 1064. But, after a cause of action under the statute has accrued, it is at the option of the person to whom the right to sue is given whether he will sue or not; and, if he neglects to sue, no other person can sue. The cause of action being thus the property of the person entitled to sue, and no other person having any interest in it, he can discharge or release it. The releases in this case, being under seal, were sufficient. Aldrich v. Parnell, 147 Mass. 409, 18 N.E. 170; Cole v. Groves, 134 Mass. 471; Tamplin v. Wentworth, 99 Mass. 63; Gray v. Bennett, 3 Metc. (Mass.) 522; Mitchell v. Clapp, 12 Cush. 278; Leddy v. Barney, 139 Mass. 394, 2 N.E. 107; Squires v. Amherst, 145 Mass. 192, 13 N.E . 609; Getman v. Bank, 89 N.Y. 136.
Exceptions overruled.
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