their dam the lumber which the stream was capable of floating in its natural condition. That they were not bound to provide, in 1884, for the plaintiffs a sluice of additional capacity to enable them to run the large quantity of logs, which they were able to float that year, by the use of the large quantity of water which under their charter, by artificial meaus, they had held EXC back and stored for that purpose. After the judge had given the jury his instructions upon this point, at the request of the counsel for the plaintiffs he gave them the further instruction: "That if the plaintiffs' logs could have been driven with the river, in its natural state, at any season of the year, they were entitled to a reasonable passage when by reason of the water stored they could float their logs over the defendants' dam." We think the instructions correct. It is not necessary to determine what the duties of the defendants would have been if the capacity of the river for floating logs had been increased by removing artificial obstructions, such as fallen trees, accumulations of logs, roots and brush in the river, which impaired its capacity for floating lumber, for no such question appears to have been involved or raised at the trial. The plaintiffs' contention is, that if the defendants' dam, as it was constructed and has been maintained prior to 1884, furnished reasonable and proper facilities for the exercise of the public right of floating lumber in the natural condition of the river, the action of the plaintiffs under their charter of increasing the capacity of the river by removing natural obstructions and by artificial means had correspondingly increased the duties of the defendants, so that if prior to 1884 the dam was not a nuisance, and the defendants could not have been made responsible, the plaintiffs, by their own artificial devices, converted it into a nuisance to the public right and changed the liability of the defendants. We think this proposition is unsound. The plaintiffs, by their charter, could not require the defendants to do any thing in removing natural obstructions in the bed of the river. They could not enter upon the defendants' laud to remove any obstructions, to the damage of the defendants, without rendering just compensation, if their charter, in the exercise of eminent domain by the State, had conferred upon them the right to do so. If they could not take the defendants' property for the purpose of accomplishing their objects, under their charter, without just compensation, how can they by their acts under their charter increase the obligations of the defendants, and require them to construct a larger sluice, at an expense of $100 or $200, and thus substantially take their property without compensation. The relative rights of mill-owners and of log-owners on floatable streams in this State have recently been so fully discussed and determined by this court in Rolfe v. Pearson, 76 Me. 380, and in Foster v. Searsport Spool Spool & Block Co., 79 id. 508, that we deem it unnecessary to enter upon a more extended discussion of the law in this case. We think the instructions of the court are in entire accord with the law as determined in those cases. Exceptions overruled. PETERS, C. J., WALTON, DANFORTH, EMERY and HASKELL, JJ., concurred. TELEGRAPH COMPANIES-NEGLIGENCE EXEMPTION. VERMONT SUPREME COURT, APRIL 22, 1889. GILLIS V. WESTERN UNION TEL. CO. Where a telegraph company, through neglect, makes an error in the transmission of a message, it is liable in damages to XCEPTIONS from Windham County Court; Veazey, J. Action on the case for negligence in the transmission of a telegraphic message. The court found that the mistake was caused by want of due care on the part of the defendant's operators. Judgment for plaintiff. Waterman, Martin & Hitt, for plaintiff. Haskins & Stoddard, for defendant. ROWELL, J. The plaintiff, a peddler, telegraphed from Rochester, N. H., to the American Express Company's agent at Brattleboro, Vt., to "send my bale here." Through the want of due care in transmission the letter "H" got changed to "Y," so that when received at Brattleboro the message purported to come from Rochester, N. Y., and the bale was sent there, to the damage of the plaintiff. The message was unrepeated, and written on one of the company's blanks, containing the usual condition as to unrepeated messages, namely, that the company should not be liable for mistakes in the transmission thereof, "whether happening by the negligence of its servants or otherwise, beyond the amount received for sending the same." The plaintiff did not read this condition, nor know what it was, although he had sent and received a good many communications by telegraph. Treating the condition as binding on the plaintiff if valid, although not brought home to his knowledge, as it was treated in argument, the question is whether it is valid or not. It is very generally conceded that telegraph companies may limit their common-law liability by express contract, and also by rules and regulations, when brought to the knowledge of their patrons and assented to by them. But as to the extent to which they may do this, and as to the reasonableness of the rules and stipulations by which they seek to do it, courts do not agree. It seems to be a fundamental principle, running through all the cases, that rules and stipulations for immunity, in order to be valid, must be just and reasonable in the eye of the law, and not inconsistent with sound public policy. But the cases differ widely in the application of this principle, and largely, no doubt because of the conflicting views as to the legal status of such companies. A few of the earlier cases hold that they are common carriers, or, if not strictly such, yet sufficiently so to make them amenable to the same law as common carriers. Parks v. Telegraph Co., 13 Cal. 422, is a leading case of this character. But this view has not obtained, and it is now generally held in this country that telegraph companies are not common carriers, nor liable as such, but are liable only for failure to exercise due care; and the ground of this proposition is that although telegraph companies, like common carriers, are in the exercise of a public calling, and consequently under obligation to serve all who choose to employ them within the scope of their business, yet that the difference between the trausmission of intelligence by means of electricity and the transportation of goods by any means is so great that telegraph companies are not common carriers, and that the principle of public policy that imposes upon common carriers the exceptional liability of insurers is not applicable to them. Kiley v. Telegraph Co., 109 N. Y. 231; Grinnell v. Telegraph Co., 113 Mass. 299; Tyler v. Telegraph Co., 60 Ill. 421; Birney v. Telegraph Co., 18 Md. 341; 81 Am. Dec. 607, and cases passim. A few cases assign telegraph companies to the category of bailees for hire, as Birney v. Telegraph Co., supra; Pinckney v. Telegraph Co., 19 S. C. 71; and some others and the argument is, that as the ground of their liability is the same as that of bailees, the legal status of the two must be the same. But this doctrine is justly criticised, because telegraph companies are engaged in a business of a public nature, and are precluded by rights and duties incident thereto from occupying the legal status of an ordinary bailee for hire whose rights and duties are wholly from contract of employment. Gray Tel., § 10. Although there may be no analogy between the business of telegraph companies and that of public carriers of passengers for hire, yet we regard their legal status as practically the same. Both are engaged in a business of a public nature. Both must serve all who come. Neither are insurers, nor liable as such; but both are liable for negligence. The question then is whether it is just and reasonable in the eye of the law, and consistent with public policy, that telegraph companies should be allowed to stipulate for immunity from liability for their own and their servants' negligence. The Supreme Court of the United States holds that common carriers cannot lawfully stipulate for exemption from liability when such exemption is not just and reasonable in the eye of the law; that it is not just and reasonable in the eye of the law for them to stipulate for exemption from liability for the negligence of themselves or their servants; and that these rules apply to carriers of goods and to carriers of passengers for hire, and with special force to the latter. Railroad Co. v. Lockwood, 17 Wall. 357. If then, as we have said, the legal status of telegraph companies and of carriers of passengers for hire is practically the same, the case is strong authority against the validity of the stipulation under consideration. "Conceding," the court says, "that special contracts made by common carriers with their customers, limiting their liability, are good and valid so far as they are just and reasonable, to the extent, for example, of excusing them for all losses happening by accident, without any negligence or fraud on their part, when they ask to go still further, and to be excused for negligence-an excuse so repugnant to the law of their foundation and to the public good-they have no longer any plea of justice or reason to support such a stipulation, but the contrary." This case agrees with the general rule on the subject. While courts differ widely as to whether telegraph companies can lawfully stipulate to any extent against liability for negligence, none appear to have gone the length of holding that they can properly stipulate against liability for gross negligence, as they call it. But many of the cases hold that regulations like the one in question, as to non-liability in respect of unrepeated messages and similar regulations, are reasonable precautions for telegraph companies to take, and are binding upon all who assent to them, so as to exempt the company from liability beyond the amount stipulated for any cause except gross negligence or willful misconduct on its part. Such a regulation, it is said, does not undertake wholly to exempt the company from liability for loss, but merely requires the other party to the contract, if he considers the transmission and delivery of the message of such importance to him that he intends to hold the company responsible in damages beyond the amount paid for the message for non-fulfillment of the contract on its part, to increase the payment by one-half; and that even common carriers have a right to inquire as to the quality and value of the goods and packages intrusted to them for carriage, and are not liable for goods of unusual value, if false answers are made to their inquiries. The cases of this class have been so often and so fully reviewed, and the ground of them stated, that it is not necessary to review them here, nor to do more than refer to some of them. Grinnell v. Telegraph Co., 113 Mass. 299, is a leading case of this class, in which Mr. Chief Justice Gray reviews the cases to a considerable extent, and points out what is regarded as the fallacy of some of them. The following cases are also of this class: Kiley v. Telegraph Co., 109 N. Y. 231; Wann v. Telegraph Co., 37 Mo. 472; Telegraph Co. v. Carew, 15 Mich. 525; Passmore v. Telegraph Co., 78 Penn. St. 238; Telegraph Co. v. Buchanan, 35 Ind. 429; Lassiter v. Telegraph Co., 89 N. C. 334. In these cases gross negligence seems to be used to define a degree of carelessness greater than that involved in ordinary negligence, and one of which the law takes distinct cognizance as an independent ground of liability. It may well be doubted whether there is any difference in law between negligence and gross negligence. The tendency of judicial opinion is to deny it. But however that may be, we are not prepared to follow this line of cases. As this is the first time this question has ever been before this court for decision, we are at liberty to adopt the view we regard as most just and reasonable, and the most consistent with sound public policy; and when we consider the relation of telegraph companies to the public, the character and extent of their business, and the duties and obligations incident thereto, we see no sufficient reason for distinguishing between ordinary and gross negligence in this behalf, and think it most just and reasonable, and most consistent with sound public policy, that they be not allowed to stipulate against liability for negligence of any kind, if there be more than one kind. Telegraph companies do not deal with their employers on equal terms. There is a necessity for their employment. They are created to promote public convenience; and until the introduction of the telephone they were, and practically still are, especially for considerable distances, without competition, save among themselves, in the transmission of intelligence by electricity. Their business has increased to vast proportions, and neither the commercial world nor the general public can dispense with their services. It is therefore just and reasonable that they should not be allowed to take advantage of their situation, and of the necessities of the public, to exact exemption from that measure of duty that the law imposes upon them and that public policy demands. A former eminent chief justice of this court, in his collection of American Railway Cases, says that "every attempt of carriers, by general notice or special contract, to excuse themselves from responsibility for losses or damages resulting in any degree from their own want of care and faithfulness, is against that good faith which the law requires as the basis of all contracts or employments, and therefore based upon principles and a policy which the law will not uphold." 2 Redf. Am. Ry. Cas. 227. This doctrine is equally applicable to telegraph companies. In the recent case of Smith v. Telegraph Co., 83 Ky. 104, it is said that telegraph companies are public agents, engaged in a quasi public business; that care and fidelity are essential to their character as public servants, and that public policy forbids that they should abdicate as to the public by a contract with an individual, who is but one of millions whose business will not perhaps admit either of delay or contest in the courts, but who are compelled to submit to any terms that the company may impose, and that the law should not uphold a contract by which public agents seek to shelter themselves from the consequences of their own wrong and neglect; that the liability of telegraph companies is not founded wholly upon contract; that they are chartered for public purposes, extraordinary powers conferred upon them, the right of eminent domain given to them, and that if they did 32 THE ALBANY LAW JOURNAL. not serve the public they could not constitutionally string wire over a man's land without his consent; wherefore they are obliged to receive and transmit messages, and are liable for neglect without any express contract, and that if they rely upon a contract or a notice to restrict liability, it must be one not in violation of public policy; that in view of the vast interests committed to them, the extraordinary powers conferred upon them, and the virtual monopoly they enjoy, courts should compel them, nolens volens, to perform the corresponding duties of diligence and good faith to the public thereby created; that any other rule would defeat the very purpose for which the companies are chartered, namely, the accurate and speedy transmission of messages for the public; that while they may restrict their liability to a reasonable extent, they cannot to the extent of immunity from the consequences of their own negligence; that they must bring to the discharge of their duties that degree of care and skill that careful and prudent men exercise in like circumstances; and that any stipulation by which they undertake to relieve themselves from this duty, or to restrict their liability for its non-performance, is forbidden by the demands of sound public policy; and that to hold otherwise would arm them with very dangerous power, and leave the public comparatively remediless. This reasoning is entirely satisfactory to us, and we adopt it as our own. are many other cases that hold the same way, and upon substantially the same grounds, among which are the following: True v. Telegraph Co., 60 Me. 1; Ayer v. Telegraph Co., 79 id. 493, Fowler v. Telegraph Co. (Me.), 15 Atl. Rep. 29; Telegraph Co. v. Griswold, 37 Ohio St. 301; Tyler v. Telegraph Co., 60 II. 421; 74 id. 168; Thompson v. Telegraph Co., 64 Wis. 531; Sweatland v. Telegraph Co., 27 Iowa, 433; Telegraph Co. v. Blanchard, 68 Ga. 299; Marr v. Telegraph Co., 1 Pickle, 529; Womack v. Telegraph Co., 58 Tex. 176. Judgment affirmed. There GAMBLING-WAGERING CONTRACT-PUR- UNITED STATES SUPREME COURT, MAY 13, 1889. EMBREY V. JEMISON. In an action on a note defendant pleaded that plaintiff was a broker, who had contracted to purchase for him "on a margin" cotton for future delivery; that the notes were given in settlement of losses sustained by plaintiff in carrying said "cotton futures" for defendant, and that the purchase or delivery of actual cotton was never contemplated by either party, but it was understood between them that settlement was to be made by one party paying to the other the difference between the contract price and the market price of said cotton futures, according to the fluctuations of the market. Held, that the plea showed a wagering contract, and a demurrer to it was improperly sustained. The note was dated and payable in New York city, but it did not appear whether the original contract was executed in Virginia or New York. Held, that as the statutes of both States made wagering contracts void, it was immaterial which statute should control the determination of the validity of the original contract. Chapter 146, sectic 20, Code of Virginia of 1873, page 1002, relating to lim tions of certain actions, provides that where such a cause of action shall accrue against a person who had before resided in that State, if such person shall, by departing from the same, obstruct the prosecu. tion of such cause, the time that such obstruction may have continued shall not be computed in determining the time within which the action ought to have been prose IN cuted. Held, that this section does not apply where the defendant has removed from the State before he made the contract sued on. N error to the Circuit Court of the United States for the Eastern District of Virginia. This is an action of debt, to recover from the plaintiff in error, who was the defendant below, the amount of four negotiable notes executed by him January 21, 1878, and payable at the office of E. S. Jemison & Co., in the city of New York, to the order of Moody & Jemison, by whom they were indorsed, before maturity, to the plaintiff, Jemison. Each note was for the sum of $7,594.15; two of them payable six months and the remaining two twelve months after date. There was a trial before a jury, resulting in a verdict and judgment in favor of the plaintiff for the amount demanded in the declaration. The case bas been brought here for review, the defendant contending that the court committed such errors of law as entitles him to a reversal of the judgment and to a new trial. In addition to a plea of nil debet the defendant filed a special plea of wager, in which it was averred, in substance, that on the last of February or the first of March, in the year 1877, he contracted with the firm of Moody & Jemison, brokers and commission merchants of the city of New York, and members of the Cotton Exchange, to purchase for him, through the plaintiff, one of that firm, "on a margin," in said Cotton Exchange, not actual cotton, but 4,000 bales of "future delivery" cotton, for May delivery, commonly called futures," which he did; that at the time of the purchase the defendant had in the hands of Moody & Jemison about $8,000 as a margin to protect said purchase against fluctuations in the market; that in the first few days of the month of March the plaintiff, as a member of the firm of Moody & Jemison, reported that the margin was about exhausted by a decline in the market, and called for more margin, which defendant informed him he was unable to put up; that no agreement or contract was at that time or afterward made with the firm of Moody & Jemison to have the said "cotton futures" carried for his account; that no report was afterward made to him of any sale of such futures; that on the 21st day of January, 1878, in the city of New York, the plaintiff called on him for his four notes for losses which he alleged the firm of Moody & Jemison had sustained by carrying said "cotton futures," which notes the defendant executed, and which are the identical notes described in the declaration; "that the purchase or delivery of actual cotton was never contemplated, either by the defendant or the said Moody & Jemison, and it was understood between them that the settlement was to be made between said parties by one party paying to the other the difference between the contract price and the market price of said cotton futures, according to the fluctuations in the market; and therefore the defendant says that the said contract was a wagering contract, and that it and the said four notes for the consideration aforesaid are void and of no force in law." A demurrer to this plea was sustained, the defendant taking his exception in proper form. On the trial of the case on the plea of nil debet the plaintiff, to maintain the issue upon his part, gave in evidence the four notes described in the declaration, and the defendant testified to the facts set forth in the above special plea of wager, and this was all the evidence before the jury. Thereupon the defendant asked the court to instruct the jury as follows: "If the jury shall believe from the evidence that it was not the intention of either party that a contract should be made by the plaintiff to buy and hold the bales of cotton for delivery to the defendant, but that it was the real intention and understanding of the parties that a contract should be made which should be closed at a future day, not by delivery of the cotton and payment of purchase-price, but by payment of money to the one party or the other, the party to receive the same and the amount to be paid to be determined upon a basis of the difference between the agreed purchaseprice on the day of - - 18-, and the actual market value of the cotton on the day when the contract was to be closed, then the jury are instructed that such a contract is invalid in law and void, and that they must find for the defendant." The court refused to give this instruction, and the defendant duly excepted. Joseph Christian and James M. Matthews, for plaintiff in error. H. M. Herman, for defendant in error. HARLAN, J. Although the notes in suit are dated at the city of New York, and were payable at the office of E. S. Jemison & Co., in that city, it does not clearly appear whether the original contract between Embrey and the firm of Moody & Jemison, referred to in the special plea of wager and in the above instruction, was made in Virginia or in New York. There was consequently some discussion as to whether the statute of Virginia or that of New York should control the determination of the question as to the illegality of that contract. The statute of Virginia provides that "every contract, conveyance or assurance, of which the consideration, or any part thereof, is money, property or other thing won or bet at any game, sport, pastime or wager, or money lent or advanced at the time of any gaming, betting or wagering, to be used in being so bet or wagered (when the person lending or advancing it knows that it is to be so used) shall be void." Code Va. 1873, p. 984, § 2. By the statute of New York it is provided that "all wagers, bets or stakes, made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty or unknown or contingent event whatever, shall be unlawful. All contracts for or on account of any money or property, or thing in action, so wagered, bet or staked, shall be void." 1 Rev. Stat. N. Y., tit. 8, art. 3, § 8, p. 662. Whether the validity of the original contract for the purchase of future delivery cotton must depend upon the New York statute or upon the Virginia statute it is not important to determine; for if such contract, as alleged, is a wagering contract, it is void under the law of either State. The plea makes a case of money advanced by the plaintiff's firm solely for the purpose of carrying "cotton futures," for which he or they contracted, when, according to the averments of the rejected plea, neither party contemplated the purchase or delivery in fact of cotton, and when it was understood that any settlement in respect to such purchases should be exclusively upon the basis of one party paying to the other only "the difference between the contract price and the market price of said cotton futures, according to the fluctuations in the market." If this be not a wagering contract, under the guise of a con. tract of sale, it would be difficult to imagine one that would be of that character. The mere form of the transaction is of little consequence. If it were, the statute against wagers could easily be evaded. The essential inquiry in every case is as to the necessary effect of the contract, and the real intention of the parties. Mr. Benjamin, in his Treatise on Sales (valume 2 [6th Am. ed.], by Corbin, p. 716, § 828), after stating that at common law wagers that did not violate any rule of public decency or morality, or any recognized principle of public policy, were not prohibited, says: "It has already been shown that a contract for the sale of goods, to be delivered at a future day, is valid, even though the seller has not the goods, nor any other means of getting them than to go into the market and buy them." But such a contract," he proceeds to say, "is only valid where the parties really intend and agree that the goods are to be delivered by the seller, and the price to be paid by the buyer. If under guise of such a contract the real intent be merely to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the coutract price and the market price of the goods at the date fixed for executing the contract, then the whole transaction constitutes nothing more than a wager, and is null and void under the statute." The statute referred to by the author is that of 8 and 9 Victoria, chapter 109, section 18, which provides "that all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void; and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person, to abide the event on which any wager shall have been made." In Irwin v. Williar, 110 U. S. 499, 508, 510, the general subject of wagering contracts was fully considered, and in the opinion, delivered by Mr. Justice Matthews, we expressed approval of the doctrine as announced by Mr. Benjamin, observing that generally in this country all such contracts are held to be illegal and void as against public policy. It was there said: "It makes no difference that a bet or wager is made to assume the form of a contract. Gambling is none the less such because it is carried on in the form or guise of legitimate trade." Referring to the decision in Roundtree v. Smith, 108 U. S. 269, it was further said: "It is certainly true that a broker might negotiate such a contract without being privy to the illegal intent of the principal parties to it which renders it void, and in such a case, being innocent of any violation of law, and not suing to enforce an unlawful contract, has a meritorious ground for the recovery of compensation for services and advances. But we are also of the opinion that when the broker is privy to the unlawful design of the parties, and brings them together for the very purpose of entering into an illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses incurred by himself on behalf of either in forwarding the transaction." In the present case, according to the averments in the plea of wager, the plaintiff was the broker who effected the purchases of future delivery cotton. He was privy to the unlawful design of the parties; represented one of them in all the transactions; and advanced the money necessary to carry, and for the express purpose of carrying, these cotton "futures" on account of the defendant. His position therefore was not that of a person merely advancing money to or for one of the parties to a wager, without having himself any direct connection with the making or execution of the contract of wager itself. He was in every sense particeps criminis. In Bigelow v. Benedict, 70 N. Y. 202, 206, the Court of Appeals of New York said that "where an optional contract for the sale of property is made, and there is no intention on the one side to sell or deliver the property, or on the other to buy or take it, but merely that the difference should be paid according to the fluctuation in market values, the contract would be a wager within the statute." In Story v. Salomon, 71 N. Y. 420, 422, which was an action upon a written contract for an option to buy or sell certain shares of stock, and the defense was that it was illegal and void under the statute of New York against gaming, the court said: If it had been shown that neither party intended to deliver or accept the shares, but merely to pay differences according to the rise or fall of the market, the contract would have been illegal." The same principle was announced in Kingsbury v. Kirwan, 77 N. Y. 612. There are many other authorities to the same effect, but in view of our decision in Irwin v. Williar, with which we are entirely satisfied, it is not necessary to cite them. The plaintiff relies upon Brown v. Speyers, 20 Gratt. 296, as expressing a different view of this question. But we do not so understand that case. The Supreme Court of Appeals of Virginia did not there indicate its opinion as to the validity of a contract for the purchase of "futures," the settlement in respect to which was to be upon the basis of paying simply the difference, according to the fluctuations in the market, between the contract price and the market price. It is contended that this is not an action upon the original contract, but upon the notes executed by Embrey after the business transacted for him by Moody & Jemison was closed, and with full knowledge upon his part of all the facts. In such a case, it is argued, the principles announced in Irwin v. Williar cannot be applied. This argument concedes, at least for the purposes of the present case, that as the law for the protection of the public and in the interest of good morals, declares a wagering contract to be void, the plaintiff could not maintain an action for the moneys advanced in execution of the original contract to carry these “futures." And yet it is insisted that he ought| to have judgment on the notes in suit, although it appears they have no other consideration than the moneys so advanced. A judgment upon the notes would in effect be one for the amount claimed by the plaintiff under the original contract, at the time he demanded their execution by the defendant. Indeed it has been held that a note could not of itself discharge the original cause of action, unless by express or special agreement it was received as payment. Sheehy v. Mandeville, 6 Cranch, 253, 264; Peter v. Beverly, 10 Pet. 532, 568; The Kimball, 3 Wall. 37, 45. While there are authorities that seem to support the position taken by the defendant in error, we are of opinion, that upon principle, the original payee cannot maintain an action on a note, the consideration of which is money advanced by him upon or in execution of a contract of wager, he being a party to that contract, or having directly participated in the making of it in the name of or on behalf of one of the parties. In Steers v. Lashley, 6 T. R. 61, it appeared that the defendant was engaged in stock-jobbing transactions with different persons, in which one Wilson was employed as his broker, and had paid the "differences for him. A dispute having arisen as to their amount, the matter was referred to the plaintiff and others, who awarded a certain sum as due from the defeudant. For a part of that sum the broker drew a bill on the defendant, and after it had been accepted, indorsed it to the plaintiff. Lord Kenyon said: "If the plaintiff had lent this money to the defendant to pay the differences, and had afterward received the bill in question for that sum, then according to the principle established in Petrie v. Hannay, 3 T. R. 418, he might have recovered. But here the bill on which the action is brought was given for these very differences; and therefore Wilson himself could not have enforced payment of it. Then the security was indorsed over to the plaintiff, he knowing of the illegality of the contract between Wilson and the defendant, for he was the arbitrator to settle their accounts; and under such circumstances he cannot be permitted to recover on the bill in a court of law." In Amory v. Meryweather, 2 Barn. & C. 573, 578, which was an action of debt on bond, conditioned for the payment of money by installments, the plea, in substance, was that the bond was given in place of a promissory note previously executed in payment for moneys advanced by an agent of the obligor in discharge of differences arising upon contracts for buying and selling shares in the public stocks, against the form of the statute; the plaintiff having knowledge when he received the bond that the note had been made by the defendant on the occasion and for the purpose stated. Abbott, C. J., after observing that there was no period of time when the plaintiff could have maintained an action upon the note said: "We are all of opinion that as it appears upon the plea that the bond was given as a substitute for a note which was taken by the plaintiffs subject to an infirmity of title of which they had full notice before the bond was taken, the latter instrument is void." lu Fisher v. Bridges, 3 El. & Bl. 642, 649, which was an action upon a covenaut in a deed to pay a certain sum, and which covenant was given as security for payment of a part of the purchase-money of real estate sold by the plaintiff to the defendant, to be by the latter disposed of by lottery, as the plaintiff knew, the court said: "It is clear that the covenant was given for payment of the purchase-money. It springs from and is a creature of the illegal agreement, and as the law would not enforce the original illegal contract, so neither will it allow the parties to enforce a security for the purchase-money, which by the original bargain was tainted with illegality." See also Fareira v. Gabell, 89 Penn. St. 89; Griffiths v. Seurs, 112 id. 523; Flagg v. Baldwin, 38 N. J. Eq. 219, 227; Cunningham v. Bank, 71 Ga. 400; Tenny v. Foote, 95 Ill. 100; Rudolf v. Winters, 7 Neb. 126; Lowry v. Dillman, 59 Wis. 197. Assuming the averments of the plea of wager to be true, it is clear that the plaintiff could not recover upon the original agreement without disclosing the fact that it was one that could not be enforced or made the basis of a judgment. He cannot be permitted to withdraw attention from this feature of the transac tion by the device of obtaining notes for the amount claimed under that illegal agreement; for they are not founded on any new or independent consideration, but are only written promises to pay that which the obligor had verbally agreed to pay. They do not in any just sense, constitute a distinct or collateral contract based upon a valid consideration. Nor do they represent any thing of value in the hands of the defendant, which in good conscience belongs to the plaintiff or to his firm. Although the burden of proof is on the obligor to show the real consideration, the execution of the notes could not obliterate the substantive fact that they grew immediately out of and are directly connected with a wagering contract. They must therefore be regarded as tainted with the illegality of that contract, the benefits of which the plaintiff seeks to obtain by this suit. That the defendant executed the notes with full knowledge of all the facts is of no moment. The defense he makes is not allowed for his sake, but to maintain the policy of the law. Coppell v. Hall, 7 Wall. 542, 558. We are of opinion that the special plea of wager presented a good defense to the action, and ought not to have been rejected; also that the instruction asked by the defendant should have been given. The case presents another question, which it is necessary to consider. The defendant, in one of his pleas, alleged that the plaintiff's cause of action did not accrue within five years next before commencement of suit. That is the time within which, by the general statute of limitations of Virginia, actions like the present one must be brought. Code Va. 1873, p. 999, §§ 8, 14. To this plea the plaintiff replied, specially that he ought not to be bound by any thing therein alleged, because when the several causes of action in the declaration mentioned, and each of them, accrued to him, the defendant "had before resided in the State of Vir |