Page:United States Reports, Volume 209.djvu/400

 374 OCTOBER TERM, 1907. Opinion of the Court. 209 U.S. actions with Shaw & Company, being insolvent and dealing with several customers, as to each of whom he had pledged the stocks carried for them, and under the understanding of the parties being under obligation to each of them to redeem the stocks from the loan for which they were pledged, this ob- ligation created a right of demanding the pledged stocks and securities on the part of each of the customers, which put the broker in the debtor class and the customers into the creditor class, so that ff the broker used his assets to carry out such obligation to a particular customer, whereby the latter was able to redeem his stock from such pledge upon payment only of the amount of his indebtedness to the broker, with the result that the broker could not carry out imi]ar obligations to other customers in'like situation, a preference is created under � of .the bankrupt act, and this, says the learned counsel in kis brief, under any theory concerning the relation of broker and customer, is "the r,in proposition upon which we hang our appeal." This case, therefore, requires an exmlntion of the rela- tions of customer and broker under the circumstances dis- c]ceed in this record, at least so far as it is necessary to deter- mine the question of preference in bankruptcy upon which the case turns. There has been much discussion upon this sub- ject in the courts of the Union. The leading case, and one most frequently cited and followed, is Markham v. Jaudo, 41 N. Y. 235, a case which was argued by eminent counsel and held over a term for consideration. The opinion in the case is by Chief Judge Hunt, afterwards Mr. Justice Hunt of this court. He summarized the conclusions of the court as �ol- lows: "The broker undertakes and agrees: "1. At once to bu.y for the customer the stocks indicated; "2. To advance all the money required for the purchase beyond the ten per cent furnished by the customer; "3. To carry or hold such stocks for the benefit of the cus- tomer so long as the margin of ten per cent is kept good, or

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