Richard Garth, C.J.
1. We think that the instrument in question should be stamped as a mortgage only.
2. The arrangement which it is intended to effect is partly a lease and partly a usufructuary mortgage. In consideration of the former loan being allowed to continue, and of the additional loan being now made by the proprietors of the Concern, the Maharajah grants a lease of the properties for twenty years, upon terms which secure to the lessees the repayment of the whole sum with interest by yearly instalments and at the same time secure to the Maharajah a very substantial share in the usufruct of the property. It seems clear to us, that, under these circumstances, the loan is the consideration for the lease and the lease is the consideration for the loan; and that neither part of the arrangement would have been complete without the other.
3. We, therefore, think it impossible to say, that the instrument relates to two distinct matters within the meaning of the first Clause of Section 7 of the General Stamp Act. That clause, in our opinion, relates only to transactions so distinct in their nature as to be capable of being carried out by two or more instruments instead of one, whereas here the contract is essentially one transaction. On the other hand we think, that the case falls within the second Clause of Section 7, the instrument being one which answers two of the descriptions in the first schedule, and which is therefore chargeable with the highest duty which can be imposed on an instrument of either description.
4. It has been suggested that, in this point of view, a large proportion of the rental would in effect pay no duty, because that share of it only would be charged which the lessees are empowered to retain in payment of the mortgage-debt, and no duty would be charged upon the share which is payable to the Maharajah. This, however, is a contingency, which might arise in many other cases, and for which the Stamp Act, so far as we can see, appears to have made no provision.