1858.

MYERS

t

BAKER.

view of imitating or counterfeiting the stamp, mark or other device of the patentee" applies to the whole of the antecedent part of the section, or only to the clause which immediately precedes it. Penal statutes should be construed according to what appears to be their true meaning. I disclaim acting on the notion that if one mode of reading such a statute creates a penalty, and another does not, the statute must be interpreted so as not to make a party liable to a penalty. But in endeavouring to ascertain the true meaning, light may be thrown upon the subject if we discover that, by adopting a particular construction, a party would be made liable to a penalty in a case where there is no reason for imposing it. The jury have found that in the present case the defendants acted with good faith and had no intention of counterfeiting the plaintiffs' mark. Reading the statute according to the ordinary rules of construction, the words "with a view of imitating or counterfeiting" the mark of the patentee apply to the whole subject matter. The effect is, that if a mark is put on innocently, without any fraudulent intention, or any view of imitating the mark of the patentee, no penalty is incurred. This appears to be the true construction, and it is entirely consistent with reason and justice.

BRAMWELL, B., WATSON, B., and CHANNELL, B., con

curred.

POLLOCK, C. B., said (Nov. 23).-The Court are of opinion that the third plea is bad, and therefore there must be judgment for the plaintiffs upon the demurrer.

Rule discharged.

Judgment for the plaintiffs on the

demurrer to the third plea.

1858.

PHILLIPS and Another v. EDWARDS and Others.

THE

Nov. 23.

ants, owners of a steam-vessel

plying between London, issued hand bills of

every month

the times of

their vessels which con

sailing, and

tained a notice

that they

"received goods for shipment on

the conditions

HE first count of the declaration stated, that the defend- The defendants were common carriers of goods and chattels for hire from Bristol to Falmouth by water; and the plaintiffs, whilst they were such common carriers, delivered to them, and they then accepted from the plaintiffs, two casks of brandy to be securely carried and conveyed by them from Bristol to Falmouth, and there, to wit at Falmouth, safely and securely delivered for the plaintiffs, for certain reason able rewards to the defendants in that behalf: Yet the defendants, not regarding their duty, &c., did not nor would safely or securely convey the said casks and their contents from Bristol to Falmouth, nor there to wit at Falmouth, safely or securely deliver the same for the plaintiffs; but, on the contrary thereof, the defendants so carelessly and negligently conducted themselves in the premises that, by and through the carelessness, neligence and default of the defendants, one of the casks became staved, broken and damaged, and a large quantity of the brandy therein leaked out and escaped, &c.-The second count stated, that the plaintiffs delivered to the defendants, and sponsible for

and agreement only that they are not liable

for inward

condition, leakage and breakage, and that they

would not receive any

goods for conveyance by

their vessels

except upon

the terms that

they should

not be re

any loss or damage of or to such goods from any cause whatever during the voyage." On the 8th March, the plaintiffs, who had received these hand-bills, shipped on board one of the defendants' vessels two casks of brandy to be carried to Falmouth. On the 11th March the shipping broker delivered to the plaintiffs a freight note, at the foot of which was a notice that the defendants did not hold themselves liable for leakage of oils, spirits or other liquids, unless from bad stowage. In the course of the voyage one of the casks of brandy was staved in and nearly all its contents lost :- Held, that the notice in the handbills constituted the terms of the contract under which the goods were shipped, and that those terms were not qualified by the notice at the foot of the freight note, and consequently the defendants were not responsible.

1858.

PHILLIPS

v.

EDWARDS.

the defendants accepted from the plaintiffs, two casks of brandy, to be by them, for certain reasonable reward in that behalf, carried and conveyed for the plaintiffs from Bristol to Falmouth by a certain ship of the defendants, which was then about to proceed and sail, and did accordingly proceed and sail, from Bristol to Falmouth, upon the terms, amongst others, that the defendants should take due care of the said goods during the voyage, and on the arrival of the said goods at Falmouth, should forthwith deliver the same at Falmouth for the plaintiffs: Yet the defendants did not nor would take due care of the said goods during the voyage, and did not nor would, on the arrival of the said goods at Falmouth, deliver the same for the plaintiffs; but, on the contrary thereof, the defendants so carelessly and negligently conducted themselves in the premises that, by and through the carelessness, negligence and default of the defendants, and during the voyage, one of the said casks became staved, broken and damaged, and a large quantity of the brandy therein leaked out, &c.

Pleas (inter alia) to first count.-First: that the defendants, at the time of the delivery of the goods to them by the plaintiffs, were not common carriers of goods and chattels for hire, as in the first count alleged.

Fifth, to the breach in the first count.-That the cask and its contents in the breach mentioned were delivered by the plaintiffs, and were accepted by the defendants, upon the terms and special contract that the defendants should not be liable for inward condition, leakage or breakage, nor for any loss or damage of or to such last mentioned. goods from any cause whatsoever during the said transit, and not otherwise. And that the alleged damage to the last mentioned goods was and is a damage which by the aforesaid terms and contract the defendants are not liable

to make good to the plaintiffs, and for which they are not in any manner answerable in this action.

Sixth to so much of the second count as relates to the damage, leaking and loss of the brandy and cask therein alleged to have been staved, broken and damaged.-That the plaintiffs did not deliver to the defendants, nor did the defendants accept the same cask of brandy to be by them carried upon the terms, amongst others, in the second count alleged in that behalf.

Ninth to the same part of the second count as is by the sixth plea pleaded to.-That the said cask and its contents was delivered to and was accepted by the defendants under and subject to the terms and special contract in the fifth plea mentioned, and not otherwise; and that the damage to the last mentioned goods was and is a damage which by the aforesaid terms and contract the defendants are not liable to make good to the plaintiffs, &c.

The replications joined and took issue on the pleas.

At the trial, before Watson, B., at the last Bristol Assizes, it appeared that the defendants were owners of a steam vessel called the "Pioneer," which plied between Bristol and London, calling (amongst other places) at Falmouth. On the 8th March last, the plaintiffs, who were merchants in Bristol, shipped on board the "Pioneer" two casks of brandy consigned to a wine merchant at Falmouth. The casks were in good condition when delivered to the defendants, but in the course of the voyage one of them was staved in and its contents nearly lost. Evidence was adduced to shew that this was caused by the negligence of the defendants. The defendants proved that every month they circulated amongst the merchants and others at Bristol handbills of the times of their vessels sailing, and that for several months, up to the time the casks of

1858.

PHILLIPS

v.

EDWARDS.

brandy were shipped, these handbills had been left at the counting-house of the plaintiffs, and had been received by them. These handbills contained the following

notice :

"The Company give notice that they receive goods for shipment on the conditions and agreement only of shipping the same under a bill of lading or receipt in the form adopted by the owners of the said vessels; and if, from any cause whatsoever, goods shall be shipped without a bill of lading or receipt, the owners of the said vessels are only liable to convey and deliver the same on the terms of the bill of lading or receipt adopted by them, viz., that these vessels have leave to sail with or without a pilot; to touch and stay at intermediate ports; with liberty to tow and assist vessels; and that the owners or agents have power to tranship said goods-and are not liable for inward condition, leakage and breakage, contents or weights of packages, nor for the incorrect delivery of goods from insufficiency of marks or numbers, nor from any accident, loss or damage arising from the act of God, the Queen's enemies nor from any consequences of the causes above stated. The owners also give notice that they will not receive any goods for conveyance by their vessels except upon the terms that they shall not be responsible for any loss or damage of or to such goods from any cause whatever during the transit."

The plaintiffs then proved that on the 11th March the defendant Edwards, who acted as shipping broker for the defendants, sent to the plaintiffs the following freight