502

Notes of English, American, and Colonial Cases.

RAILWAY COMPANY.-Passenger's season ticket-Forfeiture of deposit for breach of conditions-Delivery of ticket on expiry.-Upon purchasing a passenger's season ticket from the defendants, the plaintiff agreed to be bound by certain conditions, of which one was that all benefit of the ticket, including a deposit of ten shillings paid with the price, should be forfeited on breach of any of the conditions; and another condition was that the ticket should be delivered up on the day after expiry. The plaintiff did not deliver up the ticket on the day after expiry, but delivered it up within a time which was found upon the trial to be a reasonable time. The defendants refused to return the deposit: -Held, that the defendants were justified, on the ground that compliance by the plaintiff with the stipulations of the contract was a condition precedent to his right to a return of the deposit.-Cooper v. The London, Brighton, and South Coast Railway Company, 48 L. J. Rep. Exch. 434.

The

COPYRIGHT.-Trade-mark-Title "Post-Office" Directory.-The plaintiff was the registered proprietor under the Copyright Act of a directory entitled "The Post-Office Directory of the West Riding of Yorkshire," which included the town of Bradford; and since 1852 had published directories for various other country districts, which were all entitled "Post-Office directories. defendants being about to publish a directory for the town of Bradford entitled "The Bradford Post-Office Directory," but which bore no similarity to the work of the plaintiff in price or appearance, the plaintiff claimed to restrain the defendants from using the word "post-office" as part of the title of their directory -Held, that the plaintiff had no right to the exclusive use of the word "post-office" as part of the title of a directory for Bradford, either under the Copyright Act, or regarding the use of the word as a property in the nature of a trade-mark, and the action was dismissed.-Kelly v. Byles, 48 L. J. Rep. Chanc. 567.

RAILWAY COMPANY.-Working agreement Effect of words "work and maintain"-Right of exclusive possession by working company-Maintenance.—The A. railway company were by an Act of Parliament authorized to construct a railway, and by a working agreement scheduled to and made part of the Act the B. railway company were empowered on certain terms to "work and maintain" the same in perpetuity. The line was accordingly constructed by the A. company and worked by the B. company. The A. company subsequently erected certain steps as an improved access to one of their stations, and these steps were removed by the B. company. In an action by the A. company for a mandatory injunction for the restoration of the steps and for an injunction to restrain any further interference therewith,-Held, that the effect of the working agreement was to entitle the B. company to the exclusive possession of the railway and works for the purpose of working and maintaining the same, that the erection of the steps was properly a work of maintenance, that the A. company had no right to enter upon the railway and works for the purpose of erecting the steps, and that the action must be dismissed with costs. The meaning of the term "maintenance" as applied to a railway discussed.-The Sevenoaks, Tunbridge, and Maidstone Rail. Co. v. The London, Chatham, and Dover Rail. Co., 48 L. J. Rep. Chanc. 513.

HUSBAND AND WIFE.-Equity to a settlement-Lunatic-Maintenance.-The wife of a person of unsound mind was entitled to a fund in Court. An order was made in enforcement of her equity to a settlement, directing accumulations and future income to be paid to her separate use, with liberty to apply in chambers for the disposal of capital in a similar manner.-Re Dixon's Trusts, 48 L. J. Rep. Chanc. 592.

SHIPPING.-General average contribution-Practice of average-adjusters.—The plaintiffs' ship sailed from S. in America to L. in England with a general cargo, and encountered severe weather, in consequence of which a general average sacrifice was made by cutting away the foretopmast, the fall of which occasioned further damage to the vessel, which was thereby compelled to put into C. to repair, in order to enable her to prosecute the voyage. To repair the vessel it became necessary to unship a portion of the cargo, and expenses were incurred in landing, warehousing, and reshipping it. Further expenses were also incurred on account of pilotage and other charges on the ship leaving the port in order to proceed on her voyage. The vessel completed her voyage and discharged her cargo at L. The plaintiffs, as shipowners, claimed contribution according to English law by way of general average, from the defendants, the owners of the cargo, in respect not only of the expense of entering the port and of discharging the cargo, but also that of warehousing and reshipping the latter, as well as in respect of expenses incurred in the way of port charges and pilotage on the occasion of the vessel again putting to sea. The defendants admitted their liability to contribute up to the discharge of the cargo, but denied any liability beyond that stage, relying on what was admitted to have been the practice, for from seventy to eighty years, of British average-adjusters in adjusting losses, according to which the expense of warehousing the cargo had been treated as particular average on the cargo, and the expense of the reshipment, pilotage, port charges, and other expenses incurred, to enable the ship to proceed on her voyage, as particular average on the freight. The charter-party and bill of lading were silent on the subject :-Held (by Cockburn, L.C.J., and Mellor, J., dissentiente Manisty, J.), that the plaintiffs were entitled to have brought into general average the expense incurred in the warehousing and reshipment of the cargo, and the pilotage, port charges, and other expenses, on the ship leaving the port in order to proceed on her voyage to L.; also that the usage of the average-adjusters, being inconsistent with law, could not prevail, the parties not having expressly agreed to make such usage a part of the contract.-Attwood v. Sellar, 48 L. J. Rep. Q. B. 465.

BOTTOMRY BOND.-Loss of ship by a collision—Limitation of liability action -Right of bondholder to freight recovered from a wrong-doing vessel.-Where a bottomry bond on freight has been given, and the ship by which the freight is to be carried is lost in a collision with another ship, from which the owners of the first ship recover in a limitation of liability action instituted by the wrongdoing shipowners, among other damages a sum in respect of freight, the bondholder is entitled to receive from the shipowners recovering the damages such an amount of freight as equals the sum lent by the bond, or a proportional amount according to the amount of freight recovered.-The Empusa, P., D. & A. 36.

CHARTER-PARTY.-Perils of the seass—Deviation to save property-Liability of shipowners.-The owners of cargo are entitled to recover against the shipowners the value of the cargo under a charter-party which contained the usual exception in case of accident from "perils of the seas," where the cargo had been lost at sea in consequence of the ship stranding, after deviating from her proper and usual course in the endeavour to save another ship and cargo in imminent danger from perils of the sea, inasmuch as the exception did not extend to such a case.-Scaramanga & Company v. Stamp, C. P. 478.

There is an implied contract in all charter-parties which have no express stipulation on the subject, that the master of the ship will not deviate unnecessarily from the usual and proper course, but that he may do so when it is reasonably necessary in order to save human life, but this last exception does not allow of a deviation to save a cargo and ship in imminent danger where the saving of life does not require it, and does not, therefore, exonerate the owner of such ship from liability to the owner of cargo carried by such ship, for a loss subsequent to such deviation, though there was no negligence in the master, and the loss was not caused by the deviation.-Ibid.

EXECUTOR.-Scottish assets of Scottish testator-Scottish_domicile—General administration-Jurisdiction.-The executors of a testator, whose domicile was Scottish, and whose property was mainly in Scotland, but some portion of whose personalty was in England, proved his will in Scotland, and afterwards took out probate in England in the ordinary general form. One of the executors then commenced an action in England against his co-executors for general administration of the personal estate, which was opposed on the ground, first, that the action was unnecessary; second, that at any rate the decree should be limited to the assets in England :-Held, that the plaintiff was entitled to the ordinary administration decree without restriction.-Stirling-Maxwell v. Cartwright (App.), 48 L. J. Rep. Chanc. 562.

BANKERS.-Conversion― Crossed cheques-Protection to collecting banker— "Not negotiable"-Forged indorsement.-By section 12 of the Crossed Cheques Act, 1876 (39 & 40 Vict. c. 81), it is enacted, "a person taking a cheque crossed generally or specially bearing in either case the words 'not negotiable,' shall not have and shall not be capable of giving a better title to the cheque than that which the person from whom he took it had. But a banker, who has in good faith and without negligence received payment for a customer of a cheque crossed generally or specially to himself, shall not, in case the title to the cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such payment:"-Held, that the cheque mentioned in the latter part of that section is not limited to the cheque described in the former part as one bearing upon it the words "not negotiable," and that, therefore, a banker, who in good faith and without negligence in due course of collection receives payment for a customer of a cheque crossed generally, but having a forged indorsement, is protected by such 12th section from liability to the true owner of the cheque for having placed the amount of such payment to the credit of his customer, notwithstanding such cheque has not the words "not negotiable" upon it.-Matthiessen & Another v. The London and County Banking Company, 48 L. J. Rep. C. P. 529.

COPYRIGHT.-Musical composition-Sole liberty of performing-Entries on Register. The statute 5 & 6 Vict. c. 45, s. 20, applies the provisions of 3 & 4 Will. IV. c. 15, s. 1, to musical compositions, and 5 & 6 Vict. c. 45, applies therefore to the right of performing musical compositions published within ten years before the passing of that Act. C. assigned by deed in 1843 to D. his copyright in certain songs which had been composed by him in 1836 and registered in 1841, and also the sole liberty of printing and publishing the same, "together with the sole and exclusive privilege of vending the same and all other his estate, right and title, interest, property, contingent possibility, benefit, claim and demand whatsoever, both at law and in equity," in those compositions-Held, that after the 5 & 6 Vict. c. 45, the author had two distinct rights in these songs, the copyright and the sole right of representation or performing, and these words in the deed passed both the copyright and the sole liberty of performing the songs. C. afterwards assigned to A. the exclusive right of performing the same songs, and A. made entries on the Register at Stationers' Hall, representing himself as proprietor, under that assignment, of that right. H., claiming title under the earlier assignment to D., moved to expunge these entries :-Held (affirming the judgment of the Queen's Bench Division), that H. was a person "aggrieved" within the meaning of section 14 of 5 & 6 Vict. c. 45, and that the entries must be expunged.-Ex parte Hutchings and Romer; re the songs "Kathleen Mavourneen" and "Dermot Astore," 48 L. J. Rep. (App.), Q. B. 505.

THE

JOURNAL OF JURISPRUDENCE.

THE PAPACY CONSIDERED IN RELATION TO INTERNATIONAL LAW. By ERNEST NYS, Docteur en Droit.

THIS learned and able essay appeared originally in French, as an article in the Revue de Droit International (tome x. 1878, Nos. IV. à VI). In its English form it is dedicated to Sir Robert Phillimore, the venerable Judge of the High Court of Admiralty, and it has met with a more cordial welcome in England than is usually given to the works of Continental jurists. In politics, both lay and ecclesiastical, M. Nys belongs to the ConservativeLiberal party, now happily in the ascendant in Belgium; and he consequently treats his subject in a spirit which, without being in any degree hostile to Christianity or even to Catholicism, is strongly opposed to Ultramontanism. He views the matter, indeed, simply as an international jurist, and in this capacity the question which he puts to himself is, Has the Papacy, now that its temporal power is gone, and it is no longer a State in the secular sense, still an international status? Constituted as it is, a supposed spiritual power, deprived of all real and effective sovereignty, can it enjoy a primordial prerogative of sovereign states?" The question, as he says, assuredly deserves to be examined, for " it is impossible to ignore the influence which yet in our days the Papacy exercises on the march of civilization." There are no less than sixteen states which still maintain diplomatic relations with the Vatican. Austria-Hungary, Spain, France, and Portugal have each an ambassador at Rome; Bavaria, Belgium, Bolivia, Brazil, Ecuador, Chili, Guatemala, Monaco, the Republic of Nicaragua, Peru, and the Republic of San Salvador maintain a minister plenipotentiary. Germany has retained a Chancellor, and although Holland has no minister accredited to the Holy See, an internuncio is resident at the Hague. Notwithstanding the diplomatic recognition thus widely accorded to it, M. Nys takes VOL. XXIII. NO. CCLXXIV.—OCTOBER 1879.

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for granted at the outset, that the Papacy, as now constituted, cannot claim the international rights of a state in the ordinary sense, on the simple ground that it cannot discharge the international duties of a state. If the Papacy is a state at all, it is a disembodied state; and M. Nys is consequently safe in limiting his inquiry to the question, "whether it is allowable to admit that the Papacy possesses a sovereignty sui generis, which gives it the right of legation and treaty?" But in thus limiting its area, M. Nys increases at once the depth and the interest of the discussion; for the question is at once forced upon him, "whether the conception of an outward Church is a conception truly Christian?" "In antiquity," he says, even had the science of international law existed, the situation of a pretended spiritual power could not have found a place among its objects. In reality the very idea of such a power did not exist. Religion was above all national; the political community included the spiritual, and the jus sacrum was merely a division of the jus publicum. To the pagan idea Jesus opposed the idea of the separation of the two domains, spiritual and temporal; and by the side of the earthly kingdom He proclaimed the heavenly kingdom, into which all those might enter who acknowledged Him to be the Messiah, who followed His precepts, and laboured, like Him, to the glory of His Father. The new religion was born." Here M. Nys enters upon dangerous ground; and the hesitation with which he has trod it has caused an apparent antagonism between the principles which he has established and the conclusion at which he arrives, an antagonism which is not removed by the statement that "logic is a bad counsellor in politics."2 Bad logic is a bad counsellor in politics, no doubt, for both the logic and the politics sooner or later will assuredly come to grief; but sound logic is a counsellor to whose monitions the deafest utilitarian, like the most scatter-brained enthusiast, must listen in the end; and woe to the policy that attempts to run away from its warning voice. It is not M. Nys's logic, however, but his theology that has misled him. His error, as it appears to us, consists in recognising the separation between the earthly and the heavenly kingdom as a fundamentally Christian idea. It was the Church and not Christ that separated earth from heaven, and divorced the body from the soul. That there are isolated phrases ascribed to our Lord, which, in the forms in which they have come to us, and when separated from their context, countenance a distinction, which beyond all others has been the stronghold of priestcraft, not in the Christian Church alone, but in every other, is unquestionable. But the whole scope and tenor of Christ's teaching was to maintain the closest union between the two spheres the very object of His mission was to bring them together; and it is in their separation that Ultramontanism in Catholic countries, and evangelical fanaticism in Protestant