Phillips, J.

1. The plaintiff and the defendant are both merchants of Negapatarn and the plaintiff entered into a contract for the purchase of rice from the defendant en the terms of Exhibits A and Ai. At the time when the contract was entered into, namely, July 19, the import of rice was controlled by Government and rules were framed in accordance with which alone import and transport of rice was permitted. The defendant obtained a license from Government to import certain rice from Burma and it was this rice which he agreed to sell to the plaintiff. The nee was delivered to the plaintiff, but, shortly afterwards, 2123 bags were commandeered by Government and the plaintiff received only the actual controlled price, whereas he had paid to the defendant a considerably larger sum. The balance of 1320 bags had already been re-sold by the plaintiff and Government took no _ action in regard to them. The plaintiff now claims damages for loss that he has sustained by this action on the part of Government and alleges that he sustained this loss owing to the fraudulent representations of the defendant.

2. A question has now been raised in appeal as to whether the plaint contract was n