TMI Blog1850 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... r persons in collusion with them. Thirdly, That the average price per chest of the Patna opium so sold, at the said public Government sale, was an average price obtained by and through the fraud and covin of the Plaintiffs and others, in concert and collusion with them. And lastly, a plea was added, which was in substance, that the term, first Government sale, c., denoted such a public auction sale, as should be held, subject to certain accustomed terms and conditions, and not otherwise, as should then next take place, and that no such public sale did take place, but that a sale took place subject to terms materially different. 3. The Plaintiffs traversed such special plea by the general replication de injuria, and the cause came on to be tried, in March, 1849, before the Chief Justice, Sir Erskine Perry and Mr. Justice Yardley, who, after time taken to consider, differed in opinion, and pronounced their verdict on the 2nd of April, 1849. Both agreed in finding a verdict for the Plaintiffs on the first and last issues; but on the second and third, the Chief Justice was in favour of the Plaintiffs; Mr. Justice Yardley, of the Defendants; but, as provided for in such a case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lost. 9. If the additional qualification, that the first Government sale should be a sale subject to the same conditions as were then imposed, could be imported into the contract by parol (which we need not decide), the evidence, as the Court has already intimated, did not prove any usage of trade to that effect. Indeed, there is evidence to the contrary. That objection, therefore, fails. 10. But it was also contended, that the exposure to sale on the 30th of November was the first sale meant by the contract, and that on that sale there was no difference between the price fixed and that actually realized, because no price was obtained, and, therefore, the wager had not been lost; and though this had not been made the subject of a plea, yet, that it was an available objection in reduction of damages, and that only nominal damages should be recovered, as there was in effect no difference to be paid. 11. We, however, think, that according to the true construction of the contract, the price of the first actual sale was the object of the wager, and the intended sale on the 30th of November was not a sale, but the sale on the 7th of December was the first Sale. This objection, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the main objections to the right of the Plaintiffs to recover, arising on the second and third pleas which have been most relied upon in the argument before us. 19. For the Appellants (the Defendants below), it was contended, that it was a fraud on the Defendants, in such wagers as these, to bring about the event by which each wager could be won by acts of their own, that such fraud was meditated and prepared by the Plaintiffs before the contracts were entered into, and, therefore, the Defendants meditating no such acts on the part of the Plaintiffs, the contract was void on the ground of fraud on them; and the second plea should have been found for the Defendants, or, if not, that, at all events, the meditated fraud having been carried into effect, and the prices raised by the acts of the Plaintiffs and their agents, those prices were fraudulently raised as against the Defendants, and, therefore, the third plea ought to have been found for the Defendants. 20. This point appears to their Lordships to be purely a question of fact, depending on the evidence. 21. It may be conceded that there was evidence, not that any steps were taken to enhance, the price, by employing per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ract itself would be sufficient. The Chief Justice being of opinion, that the understanding was most clearly proved, that the Defendants knew well when they made the wagers, that the Plaintiffs would use all their efforts and all the power which their command of capital gave them, to run up the prices at the sale, and that the Defendants contracted with them on those terms, and that the wagers were in fact nothing more than one speculator backing his own opinion against that of another, on an event to be operated upon by the wealth, faculties and judgment of both parties; that according to their mutual understanding, each, therefore, had a right to use the means in his power, one to elevate the market price by bidding and inducing others to bid ; the other to depress it; by persuading persons not to bid, always supposing that such means were otherwise legal. 25. Upon a full consideration of the evidence, their Lordships are of opinion, that the view taken of it by the Chief Justice is the correct one, and we think his 'decision as to the matter of fact fully warranted and called for by the evidence in the case. 26. The Plaintiffs had entered into a great speculation, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey were only entitled to do by reason of that fraud oh third persons. It would seem from the report of the judgment in the Court below, that this view of the case was not pressed on the learned Judges. Both consider only whether this conduct would be a fraud on the contracting parties, and the Chief Justice states that the acts were admitted to be not otherwise illegal. 31. But, on the hearing of this appeal, this further objection is brought forward, and we are bound to dispose of it. The objection is, that the means used by bidding merely to enhance the price, was a fraud on those who were intending to purchase bona fide, and especially when others conspired with the Plaintiffs to bid for the same purpose; and, further, that the act of giving to the French Consul the sum of Rs. 30,000, to induce him to exercise the option given by Treaty to the King of the French, to buy 300 chests, was also a fraud on the East India Company, and the average price having been raised by these acts conjointly, the Plaintiffs could not recover if either was illegal. 32. It was argued on behalf of the Respondents, that this species of fraud and consequent illegality did not fall within the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much relied upon, to show that an agreement of several not to bid at an auction was an indictable offence; but this was a mere dictum in a Nisi Prius case, and cannot, we think, be relied upon. 37. It is argued, however, that this proceeding by bidding by the Plaintiffs themselves, or in conjunction with others, is analogous to puffing, and is illegal on the same principle. But the distinction is in our judgment plain. A puffer is not a real bidder. By arrangement between him and the vendor his bid is to go for nothing; but as to the competing bidders, it appears to be what it is not, a real bidding and the vendor, by authorizing it, is guilty of a fraud on them, and cannot profit by it. 38. Here the Plaintiffs and their agents are all real bidders. He whose bid is the highest is bound to pay the price, and no false colours have been held out to other intended buyers. 39. Another point insisted upon before us was, that the purchase of the option reserved to the French Government was illegal. 40. By the sixth Article of the Convention between Great Britain and France, there is reserved to the French Government, or those employed by them, the right to request a reserve ..... 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