Beaman, J.
1. In this suit the plaintiffs, a firm trading under the style of Bhagvandas Parashram, sue the defendant Burjorji Ruttonji Bomanji for the sum of roughly Rs. 90,000 odd on account of losses said to have been incurred by him to them in the sale and purchase of 4000 tons of linseed.
2. The material facts for the purpose of introducing the points chiefly in controversy are that the plaintiff-firm claimed to be Pukka Adatias doing business in the Bombay market on a very considerable scale. The defendant is a Parsi gentleman of twenty-nine years of age, who, according to his own statement, has never done any settled business but has frequently dabbled, as he calls it, in stocks and shares and occasionally in cotton. Until this disastrous venture of his in linseed he never seems to have dealt in that staple. In September 1909 the defendant Burjorji won the St. Leger Sweep to the amount of a lakh-and-a-quarter and it was with the balance of this money after paying off debts he owned at the time that he entered the linseed market. He became acquainted with the plaintiffs' Munim Hargopal as far back as 1907 but it was not until after he had won this considerable sum of money in 1909 that he ever appears to have entered into commercial transactions with him. On the 30th of June 1910 the defendant Burjorji bought 2000 bales of fine Broach cotton forward for the March delivery, 1911. At the same time he sold 1000 tons of linseed for the September delivery, 1910. On the 6th of July he sold 800 more tons of linseed for the same September delivery. These three contracts the defendant admits. On the nth of July the plaintiff contends and the defendant denies that he sold a further 2200 tons of linseed for the September delivery. On the 30th of June or the 1st of July the defendant deposited a sum in two instalments of varying dates amounting in all to Rs. 61,000 with the plaintiff-firm. This sum was to carry interest at the rate of 7 as. per cent. per mensem. The plaintiff contends that the money was deposited as margin-money in respect of the forward contracts into which the defendant had entered with the plaintiff-firm for cotton arid linseed on the 30th of June, 1st of July, 6th of July, and nth of July. The defendant contends that Rs. 61,000 was a fixed deposit with the plaintiff (sic) having no connection whatever with his speculative forward dealings in cotton and linseed, and he now counterclaims for that amount. The market went in the defendant's favour, so far as the forward cotton transaction was concerned, and it was settled by the plaintiff firm either on the l0th or 11th of July. The gross profit which the defendant made on that speculation would have been about Rs. 8,000 but after deduction for commission and interest on the sum paid so many months in advance of due date, the defendant actually won some Rs. 5,000 odd on this transaction. But from the first the linseed market went against the defendant and by the 30th of September, which was the last date for giving delivery of the 4000 tons he had sold, the market had risen so high that the loss on this transaction was somewhere about Rs. 150,000. The defendant has suggested in the course of his evidence here, although I do not think that it had entered into his mind before, that the plaintiff-firm closed the cotton contract without consulting him. It is interesting to note that had the defendant left the contract to be settled on due date he would have won very nearly enough upon it to meet his loss on the linseed. However that may be, the plaintiff-firm, who as Pukka Adatias, contend that they had accepted the defendant's order to sell 4000 tons of linseed forward for the September delivery and had in fact sold them, began to call upon the defendant as the month of September approached either to increase their margin-money or authorise them to buy ready for delivery to their buyers or to settle these forward sales by cross contracts. I shall have to say a few words upon what occurred about the end of August and until the contracts were finally settled on the 30th of September or 1st of October when I deal with the evidence more in detail. The plaintiffs settled with the buyers by paying differences at the market rates of the day with the exception of 300 tons which they bought ready in the market for delivery ; that is to say, the forward sales for 3700 tons were settled by cross contracts and payment of differences to the amount which the plaintiff-firm now claim from the defendant. The plaintiff-firm have given the defendant credit for the amount of margin-money deposited and for the profits he made upon the 2000 bales of Broach cotton which he bought forward for the delivery of March 1911.
3. [After discussing the evidence on the defendant's minor defences, His Lordship arrived at these findings of fact]--I have arrived at these findings, first, that the plaintiffs are Pukka, Adatias. Next, that the defendant sold through them 4000 tons of linseed (of which he admits the sale of 1800 tons) bet ween the 30th of June and the 11th of July for delivery in September. I have also found that at the time of entering into these contracts he deposited Rs. 61,000 as margin-money with the plaintiff-firm. But. for the very extraordinary rise in the linseed market that margin-money should have been amply sufficient to cover all anticipated losses. Had it done so, we should have heard nothing more of this case. But owing to the rapid rise of the market, the defendant's losses not only swallowed up the whole of his margin-money, as well as his relatively small gains in the cotton transactions, but left him still indebted to the plaintiff-firm in a very large sum. When they seek to recover this the defendant meets the claim by a general defence that all these contracts were by way of wagering. He has said in his examination that but for the manner in which the plaintiff-firm deceived him about the fixed deposit he would have done his best to pay his losses and not fall back upon this technical defence. But he professes to have been so enraged and indignant at the manner in which he was duped and afterwards bullied by Hargopal that in the last resort he has taken the defence of wagering. Dealing with the main defence of wagering, I should like to make a few general observations. I have probably had more wagering defences to try, than any other Judge at present sitting in this Court. I am familiar with all the leading authorities and the passages which counsel almost invariably quote from them in argument. Used as admonitions, definitions or suggestions, the commonest citations from the books break into two main divisions: (1) attempts to define what the law means by wager; (2) attempts to lay down general rules for the conduct of the enquiry, when what has all the appearance of being an ordinary genuine commercial contract, is said to be a wager. The authorities are most prolific in the second part. It is possible that counsel engaged B from time to time in this or that particular case of the kind, come to them fresh and cull liberally from them, for their own purposes, without quite realizing that the Judge has heard them over and over again, from the lips of other counsel engaged in other similar cases. It is rare indeed for a wagering defence to go through, without the Judge's attention being invited, as though to something new, striking and useful, to half a (sic) core of weightily worded and impressive dicta of eminent Judges, who have in this manner sought to afford guidance to those who come after them. Without meaning the least disparagement of these efforts, I own that by now, I sometimes think it almost a pity, if for no other reason than that it swells the volume of argument, that so much labour and ingenuity has been spent on the Bench along this line. Many of the favourite and most famous passages are so sonorous and ample that counsel, young counsel especially, can hardly be expected to resist the temptation of repeating them ore rotunda on every possible occasion. Great Judges who very likely sitting in appeal have but one or two at most of such cases to decide, and are, therefore, naturally anxious to expound as fully as possible what they conceive to be the true principles of all such enquiries, have generalized upon this topic with uncommon vigour. Courts are warned against trusting too readily the apparent rectitude of the documents; Courts are Warned to probe the surrounding circumstances; Courts are asked to be astute in unearthing what may prove to be turpitude masquerading in the dress of probity; they are exhorted not to believe the written contracts nor the sworn testimony of the plaintiff in support of them, but to go behind and beyond in quest of the truth. And counsel as far as my experience, which is large, has yet gone, never tire, and never seem likely to tire, of these well rounded, sometimes a little exuberant, but always dignified and impressive periods. I have studied, analyzed, even, I fear, contributed to the total; and the result has been, as I am certain it always must be, to show that the whole collection of 'familiar quotations ' on this particular topic means just this and nothing more. When what appears from first to last to be a genuine commercial contract is said to be a wager, the trying Court should do the best it can to find out whether it really is so or not. That is what every Judge of first instance, trying every disputed question of fact, wishes to do. But this grave and formidable array of 3 judicial dicta, the work of many great Judges, produces an impression that in trying a wagering defence, a Judge is faced with a very different and much more difficult task than in trying any other fact. It might indeed be thought that not only was a special attitude of mind enjoined, but virtually a special procedure. This is mainly due to the extremely elaborate diction in which many of these judicial utterances are clothed. But I say with all submission and complete confidence that this is not really so; that while a wagering defence to an ordinary forward contract is inevitably at (sic) by certain difficulties, neither in principle nor in practice ought the trial to differ from the trial of any other legal defence. As to not being misled by the apparent rectitude of the documents, this seems to me to mean no more than this, that subject to the law of evidence, a party to a written contract may show if he can that it is not enforceable against him. As to the rest of the stock phrases they yield, on analysis, nothing more than that a Court will have to decide on all the legal evidence available whether the repudiating party, really meant what he said or not, and whether the other party, supposing he did not mean what he said, knew that and assented to it. In other words whether the contract sued upon was the real contract or whether an undisclosed and altogether different contract was the real contract. I may presently say a word or two upon the general spirit of all these judgments and submit with respect that the subject may perhaps advantageously be looked at in a different light. But before doing that, I own I wish some good and complete definition of a wager could be framed, or that none had been attempted. Those most in vogue, the definitions of Cockburn C. J., of Cotton L. J., and of the acute text-book writer Anson, fit with nice exactitude about ninety per Cent, of all forward speculative commercial business. Yet gains and losses in that business would probably be decreed by any English Court. A real wager, that which the law meant to repress and against which the Judges have spoken so strongly and consistently, is usually easy to recognize and ought to be easy to define. But a definition of a wager, intended to cover everything which the law will not enforce, which fits thousands of contracts which it will enforce as well as one or two which it will not, is for its own purposes a bad definition. It is not perhaps so much the fault of the definitions as of the fact; for the truth is that a very large percentage of speculative commercial transactions are in essence as much wagers, as any book-maker's bets. But B as they are a part of mercantile usage and custom, and the law merchant recognizes and approves them so long as they remain decently disguised in the right commercial dress, j the Courts here take them all to be what in appearance they are, and are by no means astute to look round the corner, or pry into the minds of the parties. It is easy enough to define a wager, but where the applicability of the definition to any case or number of cases depends upon the ascertainment of a mental state, unexpressed or more often the direct opposite of what is expressed in the actual form of the agreement, the practical difficulties which beset the enquiry must always be formidable, and usually prove insurmountable. I am speaking now exclusively of cases of alleged wager which take the form of regular commercial forward buying and selling contracts. So far as the form goes, there is no wager discoverable. And if the proper formalities are observed from the beginning to the end of the transaction, it is almost impossible to say in a majority of cases, whatever the Court may suspect, that one at least of the parties, if not both, had not good honest trade intentions. Every attempt to embroider upon the definitions of wager, criteria for discriminating a genuine forward, or speculative contract from a pure wager, to be found in the case-law, has so far been defective or unsuccessful. I should suggest (if I thought that any definition were really of much use) that a true wager is where two persons agree to pay and receive respectively money or money's worth, merely upon the happening or not happening of an uncertain future event, and for no other consideration whatever. Unfortunately, even supposing that to be a valid definition, it does not remove the practical difficulty with which all Courts have to deal when a . wagering defence is set up against the enforcement of a mercantile contract. For, as I have said, the form of the contract does not disclose any element of wagering at all. And it is only by getting rid of the form altogether and convincing the Court that the real contract or agreement between the parties was quite different and fulfils all the terms of the definition that a defendant can hope to succeed at all. A contract between A and B, dealers in cotton, may be identical from first to last in form, and, in fact, with a contract between C and D, cobbler and a clerk, yet the former is almost certain to be held not, while the latter may be held to be, a wager. And this shows the utter uselessness of attempts at definition, if those attempts are meant to help Courts in answering the single question of fact which, in all such cases, has to be tried.
4. Every Judge, knows very well what he has to try and how ; in each case he has a certain amount of evidence, and it is upon that evidence and the facts which it establishes that he has to say whether the parties to a forward commercial contract were trading or gambling. No amount of generalization, no amount of definition, is really of any help. Criteria which occur to certain most eminent and learned Judges as of general applicability and service, because they preponderate in that particular case, may be quite useless in another case. And. when all is said and done, the question on each fresh trial is invariably res integra, was this defendant wagering Did the plaintiff know he was wagering and accept the agreement on that basis? Were both wagering? And so on.
5. Passing from these comments upon definitions and criteria of wagers, to the attitude of the Courts towards such defences and the appropriate methods to be followed really as a consequence of that attitude, I think that it might be an improvement to shift the view point. Most of the judgments, to which Courts are commonly referred for guidance in these points, are strongly tinged with a moral sentiment. It can hardly be doubted, reading some of the more impressive passages, that their authors felt themselves to be doing a little more than coldly enunciating law; that they felt themselves to be carrying out a moral mission. Hence the energy, sometimes the vehemence, with which they exhort all Courts of Justice to be extraordinarily vigilant, extraordinarily keen on the scent of an alleged wager, wrapped up in the decent garb of a forward contract. And as a corollary it must be supposed that all holding such views deem it a matter for congratulation when a Court is able to nonsuit a plaintiff, and give a defendant relief on the ground of wagering. Regarded thus, in the light of public morality, I may be permitted to doubt, whether any such sentiments could really be justified. For reasons, possibly a little out of date, the English law set its face very sternly against enforcing wagering debts. Amongst honest men, the consequence has been not to rob these of their moral obligation, not in any way to lessen it, but rather to make them most scrupulous and exact in the payment of precisely those debts which the law will not enforce. That ought to be a clue, if no more, to the trend of public opinion; it might even suggest that restricted to the simple ethical ground, the law does not accurately reflect the common sense and the common morality I of the people. But surely it ought to be plain, that when a gambler who would only too willingly take his winnings asks the Court to absolve him from paying his losses, he is not taking any high, moral ground. Nor do I see a single valid reason why Courts should be extra 'astute', or spend more pains and feel more responsibility in trying to reach a conclusion which is neither salutary to public or private moral:;, than in any other ordinary enquiry into the facts. Rather I see many reasons to the contrary. It is not as though when '.Lifts allow a wagering defence, they might, although condemning the individual who has benefited by it, console them. selves by thinking that the decision contributed to reducing the public evil of gaming. For it does nothing of the kind; it does exactly the reverse. There is, always has been, and most certainly always will be, an immense amount of what I may call ' market gambling' all the world over. Honest people who indulge in it pay their losses, as well as collect their gains. Dishonest people take their gains, but refuse to pay their losses. It is, or ought to be, evident, that when a Court upholds them in doing so, it does an act calculated not to repress or diminish, but increase and encourage the very evil it strikes at. Nothing is more likely to stimulate gambling amongst the worst class of gamblers than to know that while there is at least a chance of being paid if they win, they will certainly not be compelled to pay if they lose. As soon as these considerations, the weight and soundness of which, I do not think, any Judge who has practical experience, or any moralist, would dispute, are fairly taken into account, it will be seen why I venture to suggest a reconsideration of much, rather hortatory than strictly legal, in the leading cases on this subject. So far from there being any need for Courts to be particularly astute or vigilant, or suspicious, or whatever term may please best, when confronted with a wagering defence, I should be inclined to say that were generalization desirable at all (in my opinion it rarely is) it might be much better expressed thus. When a forward commercial contract, regular in every outward particular from first to last, is repudiated by one party on the ground that it is a wager, the Court should always incline and incline strongly to take the contract to be in reality, what upon its face and form it appears to be. It should be a matter of great difficulty, and always against the inclination of the Court, to convince it that the ' apparent rectitude of the documents ' is not as real 3 as it is apparent. For why should a Court be so eager to strain the judicial machinery to its utmost limits, to pry microscopically into the minds of men, to open up a hundred transactions in the hope of throwing light on one, to alarm great markets and unsettle commerce, in order that if at last this wide ranging quest succeeds, a dishonest gambler may be excused from paying what, whether legally or not, he is morally bound to pay
6. Rather might not the Courts turn to this feature of all such cases. Here is a party who admits and must admit that has deliberately cloaked his dealings in lawful form for the sole purpose of concealing their true nature, and deceiving, (should it be desirable from his point of view to do so) the Courts of Justice. Things fall out differently, and this man comes clamouring into Court confessing his terpitude, and claiming much more than common indulgence and sympathy in the conduct of the enquiry, the result of which, he hopes, will be to show that he not only makes false documents but gambles and does not mean to pay his losses. On what conceivable principle of law or ethics is such an one entitled to any special consideration at the hands of the Courts; or why for such an one should they work themselves up into any special heat of righteous indignation against the plaintiff, or fierce zeal of investigation, such as is suggested in all the stock passages from the cases? The defendant in fact says this to the Court ' I very carefully and deliberately laid my plans to deceive you, should it have been to my interest to do so. It is not. I therefore beg you to accept my explanation, and relieve me against the ordinary legal consequences of my and the plaintiff's carefully planned imposition. I mean to deceive you whichever way things fell out, or at any rate I meant to be thoroughly dishonest from first to last. Surely so completely dishonest, such a radical rogue deserves the sympathy and full indulgence of every Court of Justice.' I do not like that appeal myself, and I am always disposed and strongly disposed to turn a deaf ear to it. Another serious consideration is this, that while Courts so far are agreed to vie with each other in astuteness to unmask the small, they are content to be proportionately obtuse to the sins and shortcomings of the big, gambler. In two transactions every single fact, the complete form, and the real intention may be identical, but in the one case the Courts turn away contemptuously from the defence of wagering, in the other they are indefatigable in trying to establish it. A and B are two great ] dealers in cotton; C and D are a cobbler and a carpenter. A sells B 500 bales of cotton in October for the March delivery ; on due date the market has risen ten rupees a bale ; A does not want to give, nor B to take delivery. B sells 500 bales of cotton to A at the due date price, and A pays B Rs. 5000. That is trade. C and D do exactly the same thing in every smallest detail. That is a wager. It is presumed in the first case that A and B intended when the -Contract was made to give and take delivery. The result she that if that was at any time part of, it was not the final predominant intention. But it saves the deal. C and D are presumed never to have intended at any time either to give or take delivery, that condemns it. It is probably perfectly true that C and D were merely gambling in differences; it is as true that A and B were doing the same. But because A and B are dealers on a large scale in cotton, it becomes virtually impossible to prove in any given instance that they were wagering, or to use a more decent term ' speculating,' and intended no more than to settle by payment of differences. Each can say I was quite willing to give or take delivery. And that is usually enough. But the same is really as true of the cobbler and the carpenter, provided that the loser has margin enough to pay. A staple like cotton has its money value, and on due date the seller, if a loss, has only to call on the buyer to pay the price, add his margin-money, and deliver the goods. The buyer in turn can then sell them at once, and pocket his gains in the shape of differences. This, I believe, could always be done in a brisk market, were it actually necessary. It may be,. as in this case, that the forward sellings of linseed far exceeded the supply. But that would hit genuine dealers just as much as mere gamblers. Where that happens, and it must often happen, a certain number of perfectly genuine contracts have to be settled by the payment of differences. Of course it may be answered, no genuine dealer has any right to sell what he has not got, and may never have. But the operations of large markets in large staples would not, I think, be found to conform to that very sound rule of small retail trade. And where there are goods enough in the market to go round on due date, every contract whether in essence trade or wager, could be, were it worth while, fulfilled in the manner I have described. But as a rule it is so much simpler and more convenient to settle by paying differences, that unless the buyer is badly in need of the stuff, or the seller actually has it on hand to sell and wants to sell it (though this is ex hypothesi unlikely if not absurd) that is the course commonly followed even between genuine dealers.
7. If the difficulty of making good a wagering defence is so great (and in my opinion ought to be so great) even in the most questionable forms of forward contracts between two persons, that difficulty is increased a hundred fold and made virtually insurmountable, where as here the defence is raised against a Pukka Adatia. As a legal entity a Pukka Adatia was created by the judgment of Chandavarkar J. confirmed in appeal by Jenkins C. J. Briefly and neglecting his one distinguishing characteristic, he is very like an ordinary del credere agent. But he is that and more. In the case of any broker or commission agent who is doing honest business, it may well be doubted whether a wagering defence could logically be set up against him. A fortiori is this so, where the party suing is a Pukka Adatia. I will not say that there might not be cases in which such a defence could be raised and could succeed. But they would be extremely rare. If, for instance, the defendant could satisfy the Court, that the plaintiff not only knew that he, the defendant, was a pure gambler, but also the party on the other side to whom he had passed on the defendant's order, then no doubt he, the Pukka Adatia, would fall within the provisions of the Bombay Gambling Act III of 1865. So also if, in exercise of his peculiar privilege, the Pukka Adatia appropriated a client's contract to himself. It might then be comparatively easy to show that he knew that his client was a pure gambler, and never meant either to give or take delivery, and a party who knowing that contracts in form either for the giving or taking of delivery must logically be held to know, and therefore to intend, that no actual delivery was to be given or taken under the formal contract. But in a vast majority of cases, having regard to the legal character of a Pukka Adatia, as defined in the judgments of Chandavarkar J. and Jenkins C. J., and adding thereto the numerous definitions of what amounts to a wagering agreement and what must be found before the Courts will allow that defence, it appears to me safe to say, generally, that a Pukka Adatia is virtually beyond the reach of that plea. This may be unfortunate, since there can be little doubt that Pukka Adatias in the Bombay market constitute themselves the channel of purely wagering agreements on a very large scale, and seem likely to be able to go on doing so with complete impunity. I
8. But whether unfortunate or not, I think, it can easily be demonstrated that it is so. A Pukka Adatia, a creation as a legal entity as far as I know of the Bombay High Court, is a commission agent and something more. He receives orders from his constituents and places them in the open market. His obligations are briefly to find money for goods or goods for money or settle differences on due date. His peculiar feature, and one which is, as far as I know, not shared by any (sic) agent known to the law, is that he can allocate his principal's contracts to himself when it suits him to do so. Leaving that aside, it is evident that a commission agent, who receives an order from a constituent to sell 2000 tons of any staple in the market and proceeds to sell those 2000 tons to perhaps a hundred buyers himself guaranteeing the goods for the money and the money for the goods, is engaged in a transaction which upon no view yet taken of any law of gambling nor under any definition of gambling or wagering could possibly be exposed to that defence. In the present instance the plaintiff-firm have shown that they sold the whole of the defendant's 4000 tons of linseed to various buyers numbering thirty-nine in all. None of those buyers knew who the seller was or for that matter whether any single individual was selling in the market more than the relatively small amount each himself bought. The contracts, both selling and buying, are made in the first instance as between the Pukka Adatia and his client. Thus, in form, the plaintiff was a purchaser from the defendant of the whole of the 4000 tons, and in form it was the plaintiff who sold to these thirty-nine buyers that amount of linseed. Where these contracts are satisfactorily carried out on both sides the Pukka Adatia is remunerated by commission at a slightly higher rate than that ordinarily paid to a common agent; and that is because he undertakes the responsibility of finding goods for the buyer and money for the seller. Where, therefore, a Pukka Adatia, who has been compelled owing to default of his client on one side or the other either to find ,goods or money, seeks to recover from that defaulting client the amount he has thus been obliged to pay on his account, it becomes, I think, on the face it almost impossible to say that as between he. his client any defence of wagering could succeed. There may be very exceptional cases where the defendant could satisfy the Court that the Pukka Adatia not only knew that he (the defendant) was merely gambling but that the client whom he found either to buy or sell with the defendant was gambling too ; and if that could be satisfactorily proved then doubtless the intermediary would be affected by the provisions of Act III of 1865 and could neither recover his commission nor any losses he had voluntarily incurred on account of his client. Such a case, I think, could only occur where the Pukka Adatia had handed over a complete order of one client to another and could be shown conclusively to have been fully aware of the intention of both those clients to do nothing more than gamble in differences. Where, ever, a client comes in with a large selling order and the Pukka Adatia immediately gives it out in the market to any number of different buyers, it cannot possibly be contended that not one of those buyers, any more than the sellers, ever . had the intention of taking delivery. From the evidence in this case, and to that extent I think it may be trusted, it seems that the whole of this last order for 2200 tons was snapped up by eager bulls in the market within an hour and a half; so that it is almost out of reason even to suggest an enquiry into whether the plaintiff-firm knew that all those twenty-two buyers were at that moment pure gamblers who had not the slightest wish or intention of taking delivery. As far as I can see the plaintiff-firm did not care in the least who the buyers were. The market was probably very brisk at that time and, as the result proved, buyers were having it all their own way. And from the evidence in this case I might adduce an additional reason in support of what I think is almost a self-evident conclusion for I am unable to distinguish in any single particular the ordinary business done by a reputable firm like Breul & Co. and described by Mr. Morris, from the like business done by the plaintiff-firm. It is true that Breul & Co. disclaim all pretensions of being Pukka Adatias, very likely because they are not quite clear what might be involved in that character. But having regard to the transactions between the defendant and Breul & Co immediately preceding these impugned transactions with he plaintiff-firm, I confess, it appears to me, that the defendant was doing with Breul & Co. exactly what he immediately afterwards was doing with the plaintiff-firm. Yet I do not suppose that any Court would be inclined to listen to a defence of wagering set up by Breul & Co.'s clients upon any such transactions if they happened to be losers thereby. Such a case indeed could hardly occur because Breul & Co., like all prudent commission agents, cover themselves amply before they put contracts of this kind through; and where a commission I agent, whether Pukka Adatia or not, insists upon margin-money before putting a selling or buying order through in the market, I agree with Mr. Morris that it would be unreasonable on the part of any Court to expect him to trouble himself about what might or might not have been passing in his client's mind at the time. All that such an agent has to do is to see that he is covered, and then to put his client's orders through. If he were further to be exposed to inquisitorial examination concerning the character of his clients on either side and if he emerged from that without satisfying the Court that he knew they were honest dealers beyond any possibility of doubt and were then to be deprived of his remuneration as agent or even called upon to refund cover which he held against his own responsibilities to his other clients, the position of commission agents, however honest, would, of course, become immediately impossible. The mistake that the plaintiffs made in this matter was in not taking sufficient margin-money from the defendant-But when they found that the market had gone so far against .him as to exceed the margin-money he had deposited, I think, they might have fairly compelled him to close or deposit further margin-money with them. That is no doubt what most business-firms would do. But the mere fact that the plaintiffs did not do this does not, in my opinion, create any solid difference between the character of the transaction between themselves and the defendant and the character of the transaction between the defendant and Breul & Co. In neither case do I see how it is possible to ask any Court to hold that the commission agents are engaged in wagering transactions themselves or can be thought to be knowingly furthering the wagering transactions of others.
9. I have not thought it necessary to go into a great deal of the evidence and the very elaborate arguments founded upon that evidence, because for the reasons I have stated the conclusion of the case seems to me to be necessitated and in reality simple. I cannot believe for a moment any part of the defendant's allegations that he was coerced into making written admissions which were substantially untrue, and at best that part of the evidence really belongs not so much to the defence of wagering as to the proof of the disputed fact whether 2200 tons were actually sold on the11th of July. There is, however, one point in the evidence which, I think, 'I ought not to pass altogether unnoticed because it certainly has a suspicious s appearance. It is part of the defendant's case, and it is supported by the evidence of a witness taken on commission as well as by the notes of a local reporter who was concealed at the. interview, that the plaintiff-firm told the defendant that it would be a good thing to buy 300 bales at least adalatke karravai ke lie, in other words, I suppose, 'for the benefit of the Court.' And in this connection Ex. 4 in the case also requires to be noticed. When the defendant first went to the plaintiffs' solicitors, the managing clerk, one Jamnadas, prepared a draft authorizing the plaintiffs to buy 250 tons of linseed on the defendant's behalf, and this is explained by the conversation reported in Ex. 5 to be part of a deliberate scheme to give a colour of genuineness to the transactions which the plaintiffs well knew were wagering. The defendant, it may be observed, refused to sign Ex. 4; but there can be no question that the draft was submitted to him and the plaintiffs wanted him to sign it; and I think it extremely likely that this purchase of 300 tons or so of linseed ready was made with the object of convincing the Court that the transactions of the whole 4000 tons were genuine and not mere wagering. That would be exactly the kind of thing that a clever Marwari would be quite sure to do and with the usual result of jeopardising a case which, in every other respect, would have been almost unassailable. Still in view of the fact that the Pukka Adatias were at that time confronted with almost certain losses of over a lakh of rupees, while they only held margin-money to the extent of Rs. 61,000, it is no wonder that they should have set their wits to work after their customary fashion to impose upon the simplicity of the Courts of Justice. It is really the only point in the whole case out of which the defendant could make any capital at all, and it is significant that that point should have been made a free gift to him by the plaintiffs in their desire to create evidence where no evidence of that kind was really needed. Certainly had this been a transaction between the defendant and the plaintiff-firm themselves, I should, in view of that little additional touch and the virtual certainty that the plaintiffs knew exactly what the defendant had in view, have been disposed to hold that they knew that the defendant was merely gambling, and, therefore, neither they nor he at any time had the intention of either giving or taking delivery. But considering, as I have already said, that they immediately passed all these contracts on to numerous other purchasers, I do not think there is any room left for any such conclusion. Still I thought it as well to comment upon this characteristic feature of a Marwari case to point out that if the plaintiffs' claim were defeated it would probably be defeated because of that silly attempt to be too clever.
10. I think now I have said enough to support the conclusion at which I have arrived, namely, that the defence of wagering as against the plaintiffs in this case must fail ; and holding as I have done upon the other questions of fact, raised by the defendant, the result is that I must decree the plaintiffs' claim in full against the defendant with all costs, including costs reserved.
11. The counter-claim must be dismissed.