He contends that one entitled to rescind a contract must exercise the right within a reasonable time after he learns of the facts entitling him to that right; otherwise he cannot recover. This is true as to voidable contracts or where a contract is void as between the parties, and in some states the usual conditions of rescission are applied, as essential to maintenance of an action, even in cases where the contract is void as against public policy, viz. that the party seeking to recover must first return any consideration received and any benefit derived therefrom before bringing action, Cummings v. Hotchkin Co. (Mass.) 197 N.E. 473; Kneeland v. Emerton, 280 Mass. 371, 183 N.E. 155, 87 A.L.R. 1; but under the decisions in New Hampshire it is sufficient if he offers to return the stocks and any benefits derived therefrom during the trial and before judgment, Mears v. Holmes, 81 N.H. 401, 128 A. 9; Kenalos v. Greene Co., 81 N.H. 426, 128 A. 335. The weight of authority and reason appears to hold no rescission is essential to the right of recovery where the contract is void.

In the present case, in suits arising in the New Hampshire district, we have had under consideration section 2 of chapter 202 of the Laws of 1917 prohibiting a salesman of a registered dealer from selling or offering for sale in that state securities, unless registered as a salesman of such dealer, and section 12 of that chapter imposing a penalty of fine or imprisonment or both in case of a violation of section 2. And, following the decisions of the Supreme Court of New Hampshire in construing the provisions of this identical act (Karamanou v. H.V. Greene Company, 80 N.H. 420, 124 A. 373, 374; Kenalos v. H.V. Greene Company, 81 N.H. 426, 128 A. 335), we held that a contract of sale of securities made in New Hampshire by an unlicensed agent of the defendant was void. In the Karamanou Case the action arose on a demurrer to a declaration.

Literal restoration of the status quo is unnecessary. Copeland v. Reynolds, 86 N.H. 110, 113; Kenalos v. Company, 81 N.H. 426. The defendants urge that there was no mistake on the part of the bank because it intended to bid the balance due on the note, according to its custom.

The company asserts that the issue is remedial in nature, and governed by the law of this jurisdiction. The reasons advanced in support of these arguments are not convincing. Interpretation of the policy is not involved and its provisions are not before us. If the matter were wholly procedural, it might be disposed of under the rule followed in Kenalos v. Company, 81 N.H. 426, and Page Belting Company v. Prince, 77 N.H. 309, dispensing with tender. But the issue goes beyond procedure to the question of whether a substantive right has been lost or intentionally relinquished by conduct outside of the litigation.

State v. Hale, 85 N.H. 403, 413. Since the exception to the denial of the motion was not referred to in oral argument or mentioned in the defendant's brief, it is deemed to be waived. Kenalos v. Company, 81 N.H. 426, 427. The errors which plaintiffs' counsel committed in his argument to the jury were not harmful as a matter of law, and the trial court by denying the motion has impliedly found that they were harmless in fact.

The discretionary authority of the court to make such an order is clear. Kenalos v. Company, 81 N.H. 426; Genest v. Company, 75 N.H. 365. It was for the Presiding Justice to decide whether justice and convenience would be served by this procedure. His decision upon this point, sustained by obvious considerations of convenience, is not reviewable here.

Judgments may be qualified to meet the demands of justice. Wood v. County, 32 N.H. 421, 423; Barney v. Leeds, 51 N.H. 253, 281; City Savings Bank v. Whittle, 63 N.H. 587; Kenalos v. Company, 81 N.H. 426. By reason of the result the order imposing terms is set aside.

The plaintiff has failed to refer to this exception either in the brief or oral argument, and it is understood to be waived. State v. Roach, 82 N.H. 189, 193; Consolidation Coal Co. v. Company, 82 N.H. 91, 93; Kenalos v. Company, 81 N.H. 426, 427. Judgment for the defendant.

The defendant's brief contains no reference to the exception, and it is understood to be waived. Kenalos v. Company, 81 N.H. 426. Exceptions overruled.