MARTIN, B. (on April 15), delivered the judgment of the Court (6).-In this case we have to consider whether the Commissioners of Inland Revenue are right in their opinion that the instrument in question is chargeable as a conveyance on sale with the ad valorem duty of 371. 10s. in respect of the sum of 7,500l., and also with an ad valorem duty of 71. 10s. as containing a covenant for securing the payment of the sum of 6,0001.

In order to determine whether an instrument is chargeable with any and if any what stamp duty, the legal rule is, that the real and true meaning of the instrument is to be ascertained, and that the description of it given in the instrument itself by the parties is immaterial, although the parties may have believed that its effect and operation was to create a security of a particular character mentioned in the Stamp Act, and may have so declared. For instance, if a written instrument was headed by a recital that the parties had agreed to execute the promissory note thereinafter written, still, if in truth the contract set forth in the instrument was not really that of a promissory note but an agreement of another character, the stamp duty would not be that chargeable on a promissory note, but that chargeable on the agreement. The questions, therefore first, stamp or no stamp? and secondly, if a stamp, to what amount? are to be determined upon the real and true character and meaning of the writing. It is sufficient to refer to The King v. The Inhabi

(3) 1 Bos. and P, N. R. 279. (4) 2 B. & Ad. 218.

(5) 2 Q.B. Rep. 321; s. c. 11 Law J. Rep. (N.S.) Q.B. 9.

(6) Kelly, C.B.; Martin, B.; and Cleasby, B.

tants of Ridgewell (7) to establish this proposition. The argument, therefore, which has been addressed to the Court on behalf of the Commissioners of Inland Revenue, based upon a supposed estoppel, is really without foundation. The true character of the instrument is the matter to be ascertained.

As to the first point, whether the instrument is chargeable as a conveyance on sale, we are of opinion that the Commissioners were in error. The "conveyance or transfer on sale," in respect of which ad valorem duty is payable by the Stamp Act, 1870 (33 & 34 Vict. c. 97), is a conveyance on sale of property; and in our opinion there is no property created or conveyed by this instrument. The definition of property applicable to this subject seems to be well stated by Pollock, C.B., in Potter v. The Commissioners of Inland Revenue (1), where the "goodwill of a trade" was held to be property. It is there said that the 55 Geo. 3. c. 184 was meant to apply to " any sale of any subject of property which belongs to a person exclusive of others, and which would be the subject of bargain and sale." Now we collect from the words of this instrument itself, that the company had an asphalte mine in that part of Russia of which Bremen is the shipping port, and that they contracted to sell to the party to the instrument of the third part a quantity of asphalte not exceeding 6,000 tons in any one year; that the asphalte was to be shipped at Bremen and delivered free at Liverpool at the price of 31. 158. per ton. According to the instrument, upon the delivery and payment for the asphalte it became the licensee's property to use it, or if he thought fit to destroy it. It then became absolutely his property. But the instrument further states that the company thereby "grant to the licensee the sole and exclusive right, license and authority to carry on with the asphalte to be supplied by them the business of asphalte, paving and otherwise using, vending and dealing in asphalte within the counties of Lancaster and Chester and not

(7) 6 B. & C. 665

elsewhere," for which the licensee was to pay them the sum of 7,500l.— 1,5007. upon the execution of the indenture and the remainder 6,000l. by six equal instalments of 1,000l. each to be paid respectively on the fourth of each of the six calendar months next ensuing the date of the instrument. The ad valorem duty of 371. 10s. charged by the Commissioners is in respect of this sum of 7,5001. We are of opinion that this duty is not payable, because there is no creation or conveyance or transfer of property. In the first place the company had no exclusive right of using their asphalte within the counties. of Lancaster and Chester; for by the law of England such a right could not exist, except created by Act of Parliament. The law recognises no such right, the Crown has no power to create it and it is nothing more than an assumption and pretence to exercise a power which has no legal existence; and if the company had no such property and could not create it they could not convey or transfer it; and the instrument is therefore in our judgment no conveyance or transfer of property at all-See Keppel v. Bailey (8) and Ackroyd v. Smith (9). The instrument probably is in effect a covenant by the company, that no asphalte shipped by them to England should be used in Lancashire or Chester, except by the licensee, and for a breach of this covenant he might possibly maintain an action against the company. It may also amount to a covenant on his part not to use the asphalte except in the two counties named.

As to the opinion of the Commissioners that the instrument is liable to a further ad valorem duty of 77. 10s. in respect of the balance of 6,000l., we are clearly of opinion that it is erroneous, assuming that the ad valorem duty of 377. 10s. is chargeable upon the 7,500l. There is no better established rule as regards stamp duty than that all that is required is, that the instrument should be stamped for its leading and principal object and that this

(8) 2 Myl. & K. 517.

(9) 10 Com. B. Rep. 164; s. c. 19 Law J. Rep. (N.S.) C.P. 315.

stamp covers everything accessory to this object. Now if the instrument is chargeable as a conveyance, the covenant to pay the 6,0007, the balance of the purchase money, is a direct accessory to the main object of the instrument, viz., the sale of what is for the present question assumed to be property, and the payment of the purchase money. The cases upon this subject are collected in Tilsley on the Stamp Laws (2nd edition), 319.

We should have arrived at this conclusion without recourse to the seventysecond section of the Stamp Act, 1870, but as it seems to us the first enactment bearing directly upon the point, and as it was contended that the payments of these instalments were not periodical, we state our opinion that the words "periodical payments" mean payments of money paid at periods and include "six successive payments of 1,000l. each at intervals of a month."

The seventy-fifth section, which was also referred to, seems to us to have no application here. If this supposed right be created at all, it is created by actual grant or conveyance, and not merely secured by some collateral instrument. The stamp duty to which in our opinion the instrument is subject is a deed stamp of 10s. and an ad valorem duty of 2s. 6d. per cent. upon 6,0007.

Judgment accordingly.

Attorneys-Young, Maples, Teesdale, Nelson & Teesdale, for appellants; Solicitor of Inland Revenue, for respondents.

1872. THE LIVER ALKALI COMPANY April 20. v. JOHNSON. Common Carrier Carrier by Barge, Flat or Hoy-Inland Navigation.

The owner of a lighter, hoy or flat which he uses regularly for carrying therein for hire from place to place on the banks of the Mersey the goods of such persons as

choose to employ him, though not plying regularly between fixed termini, is a common carrier, and may therefore, without negligence on his part, be liable for the loss of goods delivered to him for carriage and lost whilst under his charge, notwithstanding that all the goods carried on the journey when the loss occurs belong to one and the same person.

The declaration stated in the first count that the plaintiff's delivered to the dofendant 62 tons of salt cake to be by him shipped on board of the flat Eliza, and safely and securely carried therein from Widnes to Liverpool, and there delivered for the plaintiffs, certain perils and casualties only excepted, for freight payable by the plaintiffs to the defendant, and that the defendant was not prevented from so shipping, carrying, or delivering the said goods by any of the perils or casualties aforesaid, and that all conditions were performed, &c., yet the defendant did not safely and securely carry aud deliver the said goods as aforesaid, and the same were lost during the said

voyage.

The second count alleged that the defendant so negligently carried the said goods in the said flat on the said voyage that by reason thereof they were damaged and rendered of no use to the plaintiffs.

The third count stated that the plaintiffs, at the defendant's request, caused the said salt cake to be delivered to the defendant to be taken care of and safely and securely carried and conveyed by the defendant in and by a certain flat called the Eliza, from Widnes to Liverpool, aforesaid, and there to be delivered in the like good order and condition, certain perils and casualties only excepted, unto the plaintiffs on paying for the said goods certain freight; and thereupon, in consideration of the premises and of the said freight and reward, the defendant then promised the plaintiffs to take care of and safely and securely carry, and convey and deliver the said goods as aforesaid, the said perils and casualties only excepted; but although the defendant then received the said goods of and from the plaintiffs for the purpose aforesaid, and

although the defendant was not prevented from delivering the said goods to the plaintiffs according to the said agreement by any of the said perils or casualties, and although a reasonable time for the delivering the said goods had long since and before the commencement of this suit elapsed, and although the plaintiffs were always ready and willing to pay to the defendant the said freight, yet the defendant did not nor would deliver the said goods or any part thereof to the plaintiffs, but has hitherto wholly neglected so to do, and the defendant, by his servants, so carelessly, negligently and improperly conducted himself with respect to the said goods whilst they were in his custody for the purpose aforesaid, that the same were wholly lost, &c.

Pleas-First, to the first count, that the plaintiffs did not deliver to the defendant, nor did the defendant receive from the plaintiffs, the said goods for the purpose and on the terms alleged; second, to the first count, a denial of the breaches alleged; third, to the second and third counts, not guilty; fourth, to the first and third counts, that the plaintiff's delivered the said goods to the defendant, and he accepted and secured the same to be carried, certain perils and casualties excepted, as in the said counts mentioned, and among the perils and casualties so excepted were all damages and accidents of the seas, rivers, and navigation of whatever nature or kind soever, and during the voyage to Liverpool the said goods were lost through the dangers and accidents of the seas, river, and navigation, and the defendant was unable to deliver the said goods by reason of the said loss and not otherwise. Issue thereon.

At the trial before Martin, B, at the Liverpool Summer Assizes, 1871, it was proved that the defendant was in the habit of carrying goods on board his flat for different people, but that he did not hold himself out as a carrier between any regularly fixed termini; and that on the particular journey when the plaintiffs' salt-cake was lost, no other goods were on board the flat; also that the loss resulted from the flat being anchored at a

spot where she grounded at low water on some large rough stones, a mischief which might have been avoided if the defendant had anchored further out in the stream till the tide turned. The defendant also set up by way of defence that he had made a special contract in the case of this particular voyage, by which he was saved from liability in the absence of negligence. The jury found that there had been no special contract between the parties as to the carriage of the salt cake, and also that there had been no negligence on the part of the defendant, whereupon a verdict was entered for the plaintiffs for 1797.; Martin, B., reserving leave to move to enter the verdict for the defendant, on the ground that upon the facts proved he was not a common carrier, and that therefore on the finding of the jury he was not liable. A rule having been obtained accordingly

one

T. H. James (J. B. Aspinall with him), shewed cause for the plaintiffs. The defendant was clearly within the definition of a common carrier" in Gisbourn v. Hurst (1); he was one "undertaking for hire to carry the goods of all persons indifferently;" the goods were delivered to him and he received them as "6 that exercised a public employment," for which he was to have a reward, and he was therefore bound to answer for them at all events-Mors v. Slew, cited in Coggs v. Bernard (2). This is not like the case of Brind v. Dale (3), where the owner of the goods contracted to go with them, and take care of them. The criterion is, whether the carrier conveys goods for particular persons only, or for every one; Ingate v. Christie (4). He also referred to Story on Bailments, sec. 495, and cases cited in note 3 thereto; Lyon v. Mells (5); and Chitty and Temple on Carriers, p. 149.

(1) 1 Salk. 249.

(2) Ld. Raym. 918; s. c. 2 Smith's L. C. (5th edition), 171, 198.

(3) 8 Car. & P. 207.

Charles Russell (with him C. P. Butt), contra, argued that the defendant, not holding himself out as a carrier between two particular termini, and on this particular voyage having no other goods than the plaintiffs' on board, was not within the definition of common carrier, or liable as such. His contract was in the nature of a charter-party. When it is said that a shipowner is a common carrier, it is to be understood with reference only to such ships as are employed as general ships— Story on Bailments, s. 501, and the cases there cited.

[CLEASBY, B., referred to Maving v. Todd (6).]

KELLY, C.B.-I entirely accede to the able and concise argument addressed to us on behalf of the plaintiffs, and I think it clear that the facts shew that the defendant was acting as a common carrier. He comes within the definition of a hoyman or shipmaster within the meaning of the earlier cases cited, which meaning is confirmed by the later authorities to be found in the notes to Coggs v. Bernard (2). He comes also strictly within the definition in the 495th section of Story on Bailments, "holding himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation pro húc vice," and the case is altogether different from that of a man carrying goods in pursuance of a charter-party or other express contract. I am therefore of opinion that the rule should be discharged.

MARTIN, B., BRAMWELL, B., and CLEASBY, B., concurred. Rule discharged.

Attorneys-Wright & Venn, for plaintiffs; Field, Roscoe & Co., agents for Bateson, Robinson & Morris, for defendant.

(4) 3 Car. & K. 61.

(5) 5 East 428.

(6) 1 Stark. 72.

1872. April 30.

SAXBY AND ANOTHER v. EASTER-
BROOK AND ANOTHER.

Patent-Infringement-Taking Account pending Appeal-Order for Inspection of Books and Interrogatories.

A rule to set aside a verdict for the plaintiffs and enter the verdict for the defendants in an action for infringing a patent having been discharged, the defendants gave notice of appeal, and pending the appeal an order was made for an account of profits. This order was not appealed against, but the defendants when before the Master refused to produce their books,Held, that the plaintiffs were entitled to a rule for inspection of the books, and for administering interrogatories to the defendants.

On the 3rd of February, 1872, the defendants in this action, which was brought for the infringement of the plaintiffs' patent, gave notice of appeal from the judgment of this Court discharging a rule to enter the verdict for them. On the 13th of the same month an order was made at Chambers directing the Master to take an account of the profits made by the defendants by reason of their infringement of the plaintiffs' patent rights from the time of the infringement to the time of judgment. The defendants did not appeal against this order, but when before the Master they refused to produce their books, whereupon the plaintiffs took out summonses for the inspection of the books, and for adminis tering interrogatories, which were referred to the Court.

It appeared that an injunction granted on the 28th of February had been since suspended, the plaintiffs having leave to apply to enforce it if the appeal should not be duly proceeded with.

A rule having been obtained calling on the defendants to shew cause why the inspection and the interrogatories should not be allowed

T. Webster and R. E. Turner, for the defendants, contended that the pendency of the appeal, which was considered ground for suspending the injunction, was equally good ground for avoiding the expense of an account, which would NEW SERIES, 41.--EXCHEQ.

V.

be altogether thrown away if the appeal. should be successful. [Holland v. Fox (1), Vidi v. Smith (2), Bridson South Western Railway (4) were cited.] McAlpine (3), and Smith v. London and

Holker, T. Aston and Macrory, for the plaintiff's contra.

KELLY, C.B.-It is a matter of course that upon a decree being pronounced in Chancery in favour of a patentee in a suit for infringement, application should be made and granted that an account be taken of the profits made by the defendant by means of the infringement; and it has also been a matter of course that an injunction should be applied for and be granted.

In this case the trial was before me, and upon the verdict being pronounced, I at once, under the power contained in the statute which confers jurisdiction upon the Courts of Common Law to deal with these cases and make these orders, granted an order for an account of profits from the time of the infringement to the time of the verdict; and judgment was afterwards given confirming the verdict.

It appears that afterwards the order I had made was confirmed at Chambers, and extended to the time of the judgment. That order has not been appealed against, and in pursuance of the order the parties appeared before the master, but the plaintiffs found themselves stopped almost in limine by the refusal of the defendants to produce their books. We are now asked to enforce the production of these books, and to allow the plaintiff's to administer interrogatories; no special objection being made by the defendants to any particular interrogatory.

Under these circumstances I am clearly of opinion that this rule should be made absolute.

MARTIN, B.—I am of the same opinion. We ought to assume that the judgment