1869 V. UNITED TELEGRAPH pass to the consignee, and he cannot sue the carrier: Swain v. PLAYFORD Shepherd (1); Coats v Chaplin. (2) There is no analogy between the duty of telegraph companies and common carriers towards the KINGDOM public; the liability of common carriers to the public is founded COMPANY. on the custom of the realm; and they are insurers as to goods only, but not as to passengers: Readhead v. Midland Railway Company. (3) In Breese v. United States Telegraph Company (4) it was decided that telegraph companies are not common carriers. The American cases which have been cited put the liability of telegraph companies to third parties for errors in the delivery of a message on the ground of a duty to the public imposed by the statute on such companies; but the plaintiff can only maintain the action on the ground of a breach of duty arising out of a contract, and he is no party to the contract, and therefore cannot sue. [He also argued that the conditions were reasonable, and cited on this point: M'Cance v. London and North Western Railway Company (5); Harrison v. London, Brighton, and South Coast Railway Company (6); White v. Great Western Railway Company (7); MacAndrew v. Electric Telegraph Company (8); Izett v. Mountain (9); Nicholson v. Willan (10); Robinson v. Great Western Railway Company. (11)] Cur. adv. vult. July 3. The judgment of the Court (Cockburn, C.J., Lush, Hannen, and Hayes, JJ.) was delivered by LUSH, J. The plaintiff, having a cargo of ice on board a schooner of his at Grimsby, invited an offer for it from Messrs. Rice & Hellyer, merchants at Hull, and requested them to make such offer by telegraph. Accordingly, Messrs. Rice & Hellyer sent to the office of the defendants' company, at Hull, a message for transmission to the plaintiff, by which they offered to take the ice at 23s. per ton. In the reading off of the message at the defend (1) 1 Mood. & Rob. 223. (3) Ante, p. 379. (4) 45 Barbour New York Rep. 274. (5) 7 H. & N. 477; 31 L.J. (Ex.) 65. (6) 2 B. & S. 122; 31 L. J. (Q.B.) 113. (7) 2 C. B. (N.S.) 7; 26 L. J. (C.P.) 158. (8) 17 C. B. 3; 25 L. J. (C.P.) 26. (11) 19 C. B. (N.S.) 51; 35 L. J. (C.P.) 123. 1869 v. UNITED KINGDOM TELEGRAPH ants' office in London a mistake was made in the figures, and the telegram sent to the plaintiff represented the offer to be 27s., in- PLAYFORD stead of 23s., per ton. The plaintiff thereupon, in acceptance of the supposed offer, ordered the schooner to proceed to Hull with the ice and, upon her arrival there, the mistake was discovered. Messrs. Rice & Hellyer refused to receive the cargo except at 23s. per ton; and this action was brought by the plaintiff to recover the damage he had sustained by reason of the mistake, and which amounted to 397. 1s. 6d. It was stated, as a fact in the case, that where an offer made, upon the invitation of the seller, by telegraph is accepted, the cost of the telegram is allowed to the buyer on account. On delivery of the message for transmission Messrs. Rice & Hellyer signed the ordinary printed form by which the defendants stipulated that "they would not be responsible for mistakes or delays in the transmission of, nor for the non-delivery of unrepeated messages from whatever cause arising, and that half the usual price for transmission would be charged in addition for repeating the message." By statute 25 & 26 Vict. c. cxxxi. (private Act) certain powers for laying down the line were conferred on the defendants, and by s. 61 it was enacted "that the use of any telegraph and apparatus erected and formed under the provisions of this Act for the purpose of receiving and sending messages, should, subject to the prior right of use thereof for the service of her Majesty, and subject to such charges and reasonable regulations as might from time to time be made and entered into by the company, be open for the sending and receiving of messages by all persons alike without favour or preference." And s. 75 limited the charges to be made by the company to the rates specified in the schedule. It appeared that if the message had been repeated, the charge for such repeated message, according to the company's price and scale, paid by Messrs. Rice & Hellyer would have exceeded the traffic rate. It was contended on behalf of the plaintiff; first, that the defendants were liable, either as upon a contract with him made through Messrs. Rice & Hellyer as his agents, or for the breach of a duty to take due care of a message which, it was argued, became his property as soon as it was delivered to the defendants; and, secondly, that the stipulation that they would not be responsible 1869 PLAYFORD v. UNITED KINGDOM TELEGRAPH for any mistakes, however caused, unless a charge was paid which exceeded the maximum allowed by the Act, was an unreasonable regulation within the meaning of s. 61, and therefore void. As we are against the plaintiff on the first point, it is unnecesCOMPANY. sary to give any opinion upon the second. The obligation of the company to use due care and skill in the transmission of the message is one arising entirely out of the contract. There is nothing in their special Act which affects their relation either to the sender or the sendee of a message, or makes it different from what it would have been had no act of parliament been passed. We cannot agree with the judgments given in the American courts in the cases cited in the argument, that there is any analogy between a consignment of goods through a carrier and the transmission of a telegram. We cannot see how the person to whom a telegraphic message is sent can be said to have a property in the message, any more than he could have had if it had been sent orally by the servant of the sender. The only question therefore is, with whom was the contract made? And to this there can be but one answer. It was made with Messrs. Rice & Hellyer. The offer was sent by them on their own behalf and in their own interest. In so doing they acted, it is true, on the invitation of the plaintiff, but not as his agents or as representing him; and the circumstance that there was an implied understanding between them that, in the event of his accepting their offer, he should reimburse them the expense of making it, in no way alters the relation between the two parties, which was that of seller and buyers, and not that of principal and agents. It follows that the plaintiff, who is a stranger to the contract with the company, cannot maintain an action against them for the breach of it. Our judgment is, therefore, for the defendants. Judgment for the defendants. Attorney for plaintiff: Morley. Attorneys for defendants: Crosley & Burn. IN THE MATTER OF THE COPYRIGHT ACTS, 5 & 6 VICT. c. 45; 25 & 26 VICT. c. 68. GRAVES' CASE. Copyright in Works of the Fine Arts-Expunging Entry of Memorandum of By 25 & 26 Vict. c. 68, s. 1," the author of every original painting, drawing, and photograph, and his assigns,” shall have the exclusive copyright for the life of the author, and seven years after his death; by s. 4, a register of proprietors of copyright is to be kept, "wherein shall be entered a memorandum of every copyright to which any person shall be entitled under this Act, and also of every subsequent assignment of any such copyright," with certain particulars," and no proprietor of any such copyright shall be entitled to the benefit of this Act until such registration": Held, that a person to whom the copyright in a picture has been assigned by the author, of which assignment a memorandum has been duly registered, has a good title under the Act, although the original copyright of the author has not been registered. Held, also, that the Act gave a copyright in a photograph of an engraving from a picture. By 5 & 6 Vict. c. 45, s. 14, and 25 & 26 Vict. c. 68, s. 5, " if any person shall deem himself aggrieved" by any entry in the register, he may apply to one of the superior Courts for an order that such entry may be expunged or varied. W. being charged under the Acts, on the complaint of G., with the infringement of G.'s copyright in a picture, a certified copy of the entry in the register of the assignment to G. was given in evidence, under the Acts, to prove G.'s title. W. having been convicted, applied to the Court to expunge the entry, on the ground that G. had not a good title to the copyright; W. did not set up any title in himself: Held, that W. was not" a person aggrieved" within the meaning of the statutes. RULE, calling on Henry Graves to shew cause why the registering officer appointed by the Stationers' Company, for the purposes of the Act, 5 & 6 Vict. c. 45, should not expunge certain entries on the register of proprietors of copyright in paintings, drawings, and photographs, to wit, an entry bearing date the 2nd of August, 1868, of an oil painting, "A Piper and a Pair of Nutcrackers;" whereof the date of agreement and assignment is entered as of the 29th of July, 1865; names of the parties to the agreement, Louis Victor Flatow, Henry Graves; name and place of abode of proprietor of copyright, Henry Graves, 6, Pall Mall; name and place VOL. IV. 3 N 1 1869 June 12. 1869 GRAVES' CASE. of abode of author of work, Sir E. Landseer, No. 1, St. John's Wood Road: also two entries, each bearing date the 4th of September, 1866, of "My First Sermon," and of "My Second Sermon," respectively; assignment the 18th of August, 1866; names of parties to agreement, Moore, McQueen, & Co., Limited, Henry Graves & Co.; name and place of abode of author of work, John Everett Millais, of Cromwell Place, South Kensington: also two entries dated the 5th of January, 1866, of copyright in two several photographs entitled, respectively, "Waiting for the Verdict," and "The Acquittal," and an entry dated the 26th of February, 1866, of a photograph, "Finding the Text," of the copyright whereof Henry Graves, of 6, Pall Mall, is entered as the proprietor. The rule was obtained on behalf of one J. B. Walker; and it appeared from the affidavits that Walker was arrested on a magistrate's warrant, granted on an information and complaint of oneBurgess, in the employ of Graves, charging, that Walker, not being the proprietor of copyright in certain paintings, or the designs thereof, called respectively " My First Sermon," "My Second Sermon," and "A Piper and a Pair of Nutcrackers," and in certain photographs called, respectively, "Waiting for the Verdict," "The Acquittal," and "Finding the Text," unlawfully did sell divers copies thereof, knowing the same to have been unlawfully made. At the hearing of the complaint against Walker, certified copies of the several entries in the register of proprietors of copyright in paintings, drawings, and photographs, of the pictures and photographs mentioned in the rule, were produced by Graves as evidence of his property therein. As to "My First Sermon," and "My Second Sermon," Graves had purchased the copyright in the two pictures from Moore, McQueen, & Co. Limited, whose business, previously to the sale, was under the management of trustees appointed by the Court of Chancery to wind it up; and the assignment was sealed with the seal of Moore, McQueen, & Co., and signed by the committee of management; the paintings were painted by Mr. Millais, who sold them and the copyrights to Agnew & Folds, who sold them with the copyrights to Moore, McQueen, & Co., Limited. The names of the trustees of Moore, McQueen, & Co., Limited, did not appear in the registry of the assignment to Graves, nor was there any memorandum of the assignment to Moore, |