On the 15th of January, 1851, upon the defendant’s stating that he had sold for the plaintiff 200 shares of *238Canton stock at $66 per share, deliverable, at option of plaintiff, in thirty days, plaintiff gave defendant $750, to meet any difference that might accrue against the plaintiff, upon the contract, at the end of the thirty days.

On the 20th January defendant delivered the stock, at a loss of $11 per share, applying the $750 in part payment of the difference. • The plaintiff had no knowledge of such delivery of the stock, or payment of the difference at the time, and when informed of it did not approve it.

At the end of the thirty days the stock had fallen below $66 per share, and had fluctuated much during the thirty days. This action was brought to recover back the $750.

Held, that the defendant delivered the stock and paid the difference, at his peril; and if there were no other ground of defence, the plaintiff might recover.

But that the whole transaction was void, under the provisions of the statutes to prevent stock-jobbing. (1 R. S. 710, § 4.)

That the transaction being illegal, no action based upon it could be maintained by either party; and that the plaintiff was not within the provisions of the 8th section of the act before referred to, and could not sustain his action by virtue of that section.

(S. C., 5 Sandf. 411; 9 N. Y. 520.)