they might have been discovered, but to say that every customer owes a duty to his banker to take precautions, or that every reasonably prudent man does habitually take precautions, to test the honesty of his clerks, is in my opinion an absurd proposition. . According to the appellants" (the bank) "he should have carefully examined the cheque and have noticed that there was room to insert another figure before the 2.' If bankers want to shield themselves from an act like this, they must make a special contract with their customer."

As to Young v. Grote, Swinfen Eady, L.J., says (p. 452):

"The judgment of the Court was pronounced on facts found by an arbitrator. . The arbitrator expressly found that the cus

"In my view the result of the authorities is that Young v. Grote can no longer be treated as an authority either (1) on the position of those signing cheques in blank, which the facts did not raise, or (2) on the position of those who by previous conduct or omissions, or by conduct or omissions directly connected with the cheque in question, give any opportunity to some one else to commit a forgery."

And he adds that he thinks the fate of Young v. Grote in a higher tribunal should be to be finally buried. Bray, J., says (pp. 467-8):—

Sankey, J." (the trial judge), "stated in his judgment that Young v. Grote was not a case which could usefully be cited as an authority. After full consideration of the authorities, I agree entirely with what Sankey, J., said. If the decision was founded on negligence, it was wrong. If it was founded on the doctrine as suggested by Lord Halsbury in Scholfield v. Earl of Londesborough, a "the cheques left by him to be filled up by his wife when filled up by her become his genuine orders" then there is no need to cite Young v. Grote in support of a proposition which is free from doubt. In no case in the Court

.

of Appeal or the House of Lords that I am aware of has it ever been acted upon. When referred to, various explanations have been given as to the ground of the decision, and it has always been distinguished. I think Sankey, J.'s, observations on it were quite Justified."

Sale of Goods-Breach of Condition-Waiver by sellers. Panoutsos v. Raymond Hadley Corporation

a [1896] A. C. 523; 86 L. J. (K.B.) 826.

of New York is a case in the Court of Appeal requiring notice, but of which it will suffice to reproduce the headnote:

'A contract, made in September, for the sale and shipment of 4,000 tons of flour, to be shipped to Greece not later than November 7th, provided that "each shipment shall be deemed a separate contract," and that payment should be "by confirmed bankers' credit." The buyer opened a bankers' credit which was not in fact "confirmed;" and the seller, with notice of that fact, made some shipments and received payment therefor by means of the credit, and also obtained from the buyer an extension of time to November 30th for shipment of the balance of the flour. On November 25th the seller cancelled the contract as to the shipment of the balance of the flour, without any previous notice, upon the ground that the credit was not in accordance with the contract. The Court held that the seller, by waiving for a time the breach of the condition as to a confirmed credit, was not thereby bound to act upon that credit up to the end of the contract, but that he was not entitled to cancel the contract without giving the buyer reasonable notice of his intention to cancel so as to give the buyer an opportunity of complying with the condition.'

Nuisance-Landlord and Tenant-Over-hanging yew tree-Poisoning of tenant's horses. Cheater v. Cater' is of interest on account of the principle which it raises but unfortunately does not settle, as the two judges disagreed. A landlord let a farm to a tenant, retaining in his own possession adjoining land on which was a shrubbery containing yew trees so near the farm as to overhang the boundary and during the tenancy to come within reach of the tenant's cattle and horses. The tenant's mare ate of the yew tree and died. The question was whether the landlord was liable, the case being an appeal from a County Court judge who had decided in favour of the plaintiff on the authority of Erskine v. Adeane. Now in this last case Mellish, L.J., said, obiter:

"The law of this country is that a tenant, when he takes a farm, must look and judge for himself what the state of the farm is. Just as in the case of a purchaser of a business the rule is caveat emptor, so in the case of taking the lease of property the

rule is caveat lessee; he must take the property as he finds it. I never heard that a landlord warranted that the sheep should not eat his yew trees. . . . In my opinion the lessee must take his chance of such damage, or ask for an express warranty if he thinks there is reason to fear that his cattle or sheep may be injured."

Now Lord Coleridge, J., holds that all Mellish, L.J., meant to say was that the tenant when he took the lease was bound to guard himself against damages existing at the date of the lease; he was not bound to assume that the landlord would omit to do what was proper in cutting the yew tree so as to prevent its becoming a danger. He therefore held for the tenant, the plaintiff. Rowlatt, J., on the other hand holds in favour of the landlord. He says:

The tenant took the place as he found it. He took it up to the shrubbery. Its growth was neither a trespass nor a nuisance. He took his chance as to what it consisted of. That was the view of Mellish, L.J., in Erskine v. Adeane, and I should have thought the same myself. It may be undesirable that land should be let with yew trees growing over it, but I see nothing to make it unlawful."

Contract-Marriage-Engagement ring. Jacobs v. Davis is a decision of Shearman, J., which we shall mention, but with little desire to benefit the kind of man who will find it useful. It is that when an engagement ring is given by a man to a woman, there is an implied condition that the ring shall be returned if the engagement is broken off.

There are no cases requiring notice here in [1817] P. or in [1917] 2 Ch. for September.

CANADIAN DECISIONS.10

Consent judgment-Contempt of Court. In the September 0.L.R. we may notice the decision of the Appellate Division in City of Toronto v. Toronto R. W. Co." that a judgment pronounced upon the con

9 [1917] 2 K. B. 532.

10 As most of our subscribers have ready access to the Canadian Reports, it is not deemed necessary to review the Canadian cases in the same detail as the English. Only those which seem of special interest and importance will, therefore, be noticed.

11 39 O. L. R. 310.

sent of the parties, being nevertheless a judgment of the Court, any disobedience of its directions is punishable in the same way as if it had not been based on consent. It is of greater effect than a mere agreement between the parties.

Company-By-law restricting transfer of Shares. In Hutchings v. Canada National Fire Ins. Co.12 the Manitoba Court of Appeal has followed recent decisions of our own Courts in holding that the power given by section 132 of the Dominion Companies Act, R.S.C., 1906, c. 79, to the directors of a company incorporated under that Act "to regulate the transfer of stock," does not warrant them in passing by-laws placing any further restrictions upon the transfer and registration of shares than are contained in secs. 138, 143, 145 and 146.

Insurance-Accident Policy-What is an Accident. We notice in the Quebec reports for September, a decision of the Superior Court on revision (Panneton, J., dissenting), Claxton v. Travellers' Ins. Co.,13 that an injury consisting in a hernia, not due to pre-existing disease, but caused or developed by playing golf, is "an accident" within the scope of an Accident Insurance policy, even if the assured is predisposed to hernia owing to his physical condition.

12 27 Man. 496.

13 R. J. Q. 52 S. C. 239.

A. H. F. L.

CONTEMPORARY LEGAL REVIEWS AND
PERIODICALS.1

The Law Times of August 11th contains a timely article on Soldiers' Wills, and its contents are equally applicable here. As the writer says, a soldier on active service may make a will although under the age of twenty-one; though he must be over fourteen. No formalities are necessary. Very often the will consists of a mere letter. It would seem that a mere oral will, if made by a testator in extremis, would be given testamentary effect, provided the whole matter be supported by satisfactory evidence. An attesting witness may be a legatee nevertheless. The writer raises the question, which we raised in a recent issue, whether it would not be right to extend these privileges to wills relating to land, instead of confining them to dispositions of personal property; and we think the reasons advanced against this being done have no application to Canada. We may quote, in connection with this article, the words of Blackstone (ed. 1770, I., 417) - Our law does not indeed extend this privilege so far as the civil law; which carried it to an extreme that borders on the ridiculous. For if a soldier in the article of death, wrote anything in bloody letters on his shield, or in the dust of the field with his sword, it was a very good military testament.' The privileges only extend to soldiers "in actual military service," and the following is of interest:

The question which usually gives rise to doubt is the question whether the testator has fulfilled the requirement of being on active service at the time of the making of the informal will. There are numerous decisions on this subject, which must necessarily be one of very considerable importance at the present day. The following case throws light on this point: A young man was a member of a volunteer battalion and not liable to be called up for active ser

It is by no means the intention of the C. L. T. to make this monthly feature a mere jumble of extracts. Numerous exchanges from different parts of the Empire and from the United States are examined, and attention is called, month by month, to whatever seems most striking and important in them.