JUDGMENT

1. This is a defendant's appeal arising out of a suit for money that is, certain profits on "khatti" transactions, a sum of money deposited by the plaintiff with the defendant, his commission agent, by way of cover or security, and lastly, interest on the above sums. The facts are simple. The plaintiff employed the defendant as his agent to carry on what were admittedly wagering transactions dealing with the nominal purchase and sale of khattis." We are not concerned with considering the nature of the transactions between the plaintiff and the third party. So far as they were concerned the transactions were admittedly of a wagering nature, The suit is between the plaintiff, principal, and the commission agent, and in view of the decision of their Lordships in Sobhagmal Gianmal v. Mukundchand Balia AIR 1926 P. C 119 it is only with the nature of the transaction as between the plaintiff, principal, and the defendant commission agent, that we are concerned.

2. In the Privy Council case to which we have referred, the plaintiff-respondent was an agent on commission suing the defendant, who had instructed him to make certain contracts on his behalf. It was found by their Lordships that as between the agent (who did not disclose his principal's name to the third party) and the third party

the contracts were genuine transactions and not wagering contracts

at all, but in the matter of the dispute between the commission agent and the defendant their Lordships clearly based their decision solely on a consideration of the nature of the contract between the commission agent and his principal. They found that though the agent, as acting for an undisclosed principal, was liable to the third party, yet as between the agent and his principal the former had no financial interest except in his commission, and the fact that there was a further collateral understanding between the agent and his principal that the former would, by covering contracts, or otherwise, provide for or take the goods or pay the difference on the principal a behalf did not render the contract between the principal and agent a wagering contract. Their Lordships concluded.:

As between them neither party stands to win from or lose to the other according to fluctuation of price or any other event. The very essence of a wager between them is thus absent.

3. Those remarks apply wholly to the present case. There is nothing to show that according to the contract as between the plaintiff and the defendant commission agent either party stood to win from or lose to the other according to the fluctuation of price or in any other event. Regarded from this standpoint, then, the contract as between the plaintiff and the defendant was wholly legal.

4. Nor in a case arising in these Provinces is the contract between the plaintiff and the defendant commission agent affected with illegality by reason of the fact that the contract as between the plaintiff and the third party is void as a wagering contract. In Bombay there is the special local Act, Bombay Act 3 of 1665, and in England there is the Gaming Act, 1892, (55 Vic. Chap. 9) according to which Acts the fact that the principal contract is a wagering contract affects prejudicially all collateral contracts. We are not concerned here to pursue the question whether in such cases money paid or received in pursuance of the collateral contract so affected can be recovered or not. There being no such Acts in force in this Province the contract as between the plaintiff and the commission agent being itself legal is not affected by the fact that the contract between the principal and the third party was a wagering contract.

5. The local Bombay Act 3 of 1865 was followed after seven years by the Contract Act of 1872. This latter Act does not in any way specifically embody such provisions as are to be found in the local Bombay Act and the English Gaming Act of 1892. It is certainly arguable that, though Section 30, Contract Act,, only makes all wa