IT want more than inferences, I ~ant some definite facts which show "hat the original contract, which, on the face of it, is a perfectly cal contract, namely to deliver ~rtain sum of money on a certain late. has been superseded by a second contract by which both parties agreed merely to pay differ. ences.
The next case I come to is Forget v. Ostigny L.R. (1895) A.C. 318, which although not directly in point is of great assistance by reason of the judgement of Lord Herschel, L.C., on gaming con. tracts generally.
He draws particular attention to the difference between "Gambling" and "Speculation" He says in his judgement "Tt may well be that the appellant reas aware that in directing a purchase to be made, the respondent did not intend to keep the shares purchased but; to sell them when, as he Snticipated would be the case, they rose in value; that his object was not investment but speculation.
"To enter into such transactions with such an object is sometimes spoken of as gambling on the Stock Exchange; bat it certainly does noi follow that the transactions involve any gaming contract."
"A contract cannot properly be described (gaming contract) merely bereavse it is entered into in furtherance {ef a speculation."*
A great point has been made in this case that the debtor was merely gambling, that he was not a member of any merchant's firm, in fact nothing more than a clerk in his brother's firm, that ho was not carrying on any large transactions which necessitated the obtaining large sums of money. Is there any reason why this should affect the mind of the Bank beyond ascertaining that he was likely to meet his obligations? There is I think no doubt that he was speculation, or, in a broad sense of the word, gambling.
Evipence or Banxrupr's Weatra.
He was living in a style of a man of some wealth, and obviously had been, if not at the time of the transactions with the Bank, a man of considerable wealth, no doubt through successful speculations.
Bank, we may assume, considered that he was a man in the position to meet his obligations, and delivery of the money, if called upon. They made these contracts for the delivery of the money, their consideration being their right to call for the delivery of the money when due, the debtor's consideration being his right to compel the Bank to receive. True incidentally one might make a profit on the exchange and the other might lose. Lord Herschell goes on to state "Tt is a legitimate commercial transaction to buy a commodity in the expectation that it will rise in value and with the intention of realizing a profit by its resale, such dealings are of every-day occurrence, in commerce.
"The legal aspect of the case is the same whatever the nature of the comma: ly, whether it is a cargo of wheat of of a joint-stock Company."
Bramwell and Colin, L.L.J., in "Thacker v. Hardy' also both use the illustration, "There may be a perfectly good contract to sell next yeat's crop of apples jot apple trees growing in a specified Lord Herschell continues "Nor again, do such purchases and giles become gaming contracts because the person purchasing is not possessed
Text read from the printed page and cleaned; old type leaves the occasional error.