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1855.

V.

BUTTIGIEG.

much like the present. There the agent, Kidson, the Plaintiff in equity, had received for his principal, CASTRIQUE Welsh, a Defendant in equity, a Bill, payable to his (the agent's) order, and had indorsed it to his principal. An action was brought on behalf of the principal by the Defendant, Dilworth, on this indorsement. The Court of Exchequer restrained it by injunction, on the ground that the principal had no right to claim payment of the Bill from his agent. Richards, Chief Baron, says, "Shall he (the indorsee) be permitted to proceed, through the medium of another person against a mere agent, because that agent has imprudently put his name on the instrument to satisfy a formality, made necessary by the mode of drawing it? It is impossible." Graham, Baron, adds, "The Plaintiff's letter was acquiesced in and acted on, and this Bill was sent in consequence; it was a natural mode of remittance; it was also natural that the draft should have been made payable to the Plaintiff, but still it was merely as an agent to Welsh, and it was indorsed by him in that character." Wood, Baron, says, "The Bill was clearly made payable to the Plaintiff in his character of agent, and it was, therefore, necessary, that he should indorse the Bill pro formá; having done so, merely for the accommodation of the Defendant, a Court of Equity ought not to suffer him to turn round on the agent, and fix him with liability on such an indorsement. Had he indorsed the Bill to guarantee the payment, it would have been a very different case; but here it is clear that nothing of the kind was meant, nor was there any consideration for his so doing; the nature of the transaction is very clear."

In this case the proceeding was in equity, but the

1855.

CASTRIQUE

v.

BUTTIGIEG.

reasons given by the Court show that, in their opinion, the facts of the case showed that it was not the intention of the parties that the indorser should be liable to the indorsee under his indorsement, and when that is the case, there is no implication of a promise to pay, and no legal liability out of which such promise would arise. The written indorsement is indeed unqualified in its terms, but the delivery to the indorsee from which, together with the written indorsement, and not from the written indorsement alone, the contract between the parties is to be inferred, is so circumstanced as to show that the indorser does not make himself liable to his indorsee; this is a defence at law, though a Court of Equity may have a concurrent jurisdiction. No question of jurisdiction was raised, and the Plaintiff might prefer a proceeding in equity on account of the action being brought by a third party, and from the superior facilities he would have in equity for establishing his

case.

This case is, therefore, an authority of great weight in favour of the Respondent, and there are some foreign authorities also in his favour, which deserves to be considered. In Merlin's "Questions de Droit," p. 676, "Endossement," "Le Banquier commissionnaire qui endosse la lettre de change qu'il achète sur la place pour son commettant, se rend-il par là garant envers celui-ci de la solvabilité de la personne sur laquelle cette lettre de change est tirée ? La Cour de Cassation a jugé pour la négative dans l'espèce suivante. The book then gives a report of a case of "Meulemeester v. Tourton and Ravel," fully supporting the above proposition.

Dalloz "Dictionnaire de Jurisprudence," tom. ii.

p. 245, art. 407, "Lorsque le cessionnaire chargé de se procurer des effets pour un correspondant les lui transmet avec son endos, cet endossement n'est alors entre les parties que la suite d'un mandat et ne peut avoir d'autres conséquences."

Baldasseroni, an eminent Tuscan jurist, Dictionario, tom. iii. p. 353, tit. "Gira," s. 26, in treating of indorsements which do not render the indorser liable to the indorsee, after mentioning the case of a principal who indorses to an agent, to enable him to receive the amount of the Bill on account of the principal, proceeds to put the case of an agent, who, having bought a Bill on account of his principal, transmits it to him with a regular indorsement (that is, an indorsement sufficient in form to pass the property, and to charge the indorser as such), "not by way of transfer (cessione), because no one can acquire that which belongs to him, but as a species of declaration of the order, and because it is just to put this Bill into the hands and at the disposition of its true proprietor." In this case, says the learned author, the principal cannot, on failure of payment, exercise an action of warranty against his agent who indorsed for his benefit.

Their Lordships, therefore, on considering the facts of the case, and the arguments and authorities presented to them on the subject, are of opinion, that the Respondent is not shown to have incurred the liability with which he is charged, and must humbly advise Her Majesty that the judgments of the Courts at Malta be confirmed.

1855.

CASTRIQUE

v.

BUTTIGIEG.

1856.

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1st & 2nd Feb., THE action in this case was brought upon certain wager contracts made between the Appellant and Respondents, as to the average price to be obtained India (before on a future lelaum, or public Government sale of

A wager contract in

the passing of the Legislative Act, No. 21, of 1848) upon the average

price opium

would fetch at a future Government sale, held

legal, and an

action thereon maintained.

opium.

The facts of the case were these:

The Respondents were merchants, trading in copartnership together at Calcutta, and the Appellant,

Present: The Right Hon. T. Pemberton Leigh, the Right Hon. Sir Edward Ryan, the Right Hon. Sir John Patteson, and the Right Hon. Sir William H. Maule.

The Plaintiff and Defendants, by contracts in writing, wagered as to the average price to be obtained for opium "of the 30th of November," "of the first lelaum, or public Government sale of opium." At the time when these contracts were entered into, the first Government sale had been advertised for the "30th of November, 1846." The sale on that day was prevented by a combination of opium speculators interested in similar contracts. The Government sale was again advertised, and took place on the 7th of December following, when opium of the quantity and description advertised for sale on the "30th November" was sold. Held: First, that the date mentioned in the contracts, the "30th of November," was a mere description of the period when the first public Government sale of opium usually took place, and formed no part of the risk contemplated by the wagers, the subject of the contracts, and was immaterial; and, secondly, that according to the true construction of the contracts, the first actual public Government sale of opium which took place next after the date of the contracts satisfied the terms of the contracts; and upon a certain average being realised thereon, the event on which the Plaintiff had wagered was determined in his favour, and he was entitled to recover the differences under the averages.

1856.

v.

MANICK

as well as the Respondents, were dealers and speculators in opium. At the time of the making of the CHOTAYLOLL contracts in question, the Appellant was a speculator for the high, and the Respondents were speculators CHUND AND for the low average price of opium, which should be obtained at the first public Government sale of the

season.

The contracts entered into between the Appellant and Respondents were eleven in number, and all referred to the same day, the 30th of November, as the day of sale to determine the wager, the several instruments differing only as to the fixed limit or amount agreed upon to be the standard. All these contracts were reduced into writing, and the chittee, or writing, of one of these contracts, dated the 30th of September, 1846, was as follows:

"Marked in the Khattah on account of your

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house, the money of the Taijee' or rise is

with you.

Taijee or rise on the average of 1,600 of the first
lelaum or public sale of the Patna.

14 Sri Purmaissore Jee.
"1 To Brothers Rughoonauth Sahoi Chotayloll.
This is written by Manickchund Kissoreechund, with
salutations, which they will peruse.

"Further, we have eaten the Taijee or rise on the average of one lot of 5 (in letters) five Paitees or chests of Patna opium of the 30th of November (Sumbut), 1903, Nineteen hundred and three, at the price of 1600, (in letters) sixteen hundred. If the average of the first lelaum, or public sale of the Company's sircar, rises above sixteen hundred, according to that we will give you the 'bullun' or rise; if it falls below sixteen hundred, you have no 'dauwah'

KAISREE

CHUND.

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