drawers were held by the Privy Council only liable for the amount for which they were originally drawn, and that the Bank was liable for the fraudulent addition.

There were 3 Executors who had a Trust account with the Bank and each signed the cheques upon it. The cheques were drawn by one of them, then sent by him alternatively to the two other Co-Executors who signed them. Lastly he signed himself.

In five instances he drew the cheques so that he was able to add to the amounts; and he did so to the extent of several hundreds of pounds. These cheques were in his own favor.

The Bank pleaded that the cheques were drawn by the Customers in a manner and form so negligent that they permitted of and enabled the alterations; and it was found by the Court itself on the trial that the Bank could not, by the exercise of ordinary care and caution, have detected the fraud or have avoided paying the cheques as altered. There was nothing on them to suggest suspicion.

The question was put to the jury:

"Were the cheques drawn negligently, that is in such a way as to unreasonably expose the Banker to the risk of having to pay more than the proper amount of the cheque as drawn out by the Customer"?

The Judge said to the jury:

:

"If you draw a cheque in a manner which a jury thinks is so negligent that it induced, or caused opportunity to a person to effect a forgery so that the Bank is exposed to paying a larger sum than you the customer intended, then the Law is that if the Jury thinks that such action of the customer is negligence he, the customer, cannot com

plain against the Bank."

The Jury answered the question thus left to them in the affirmative. They found negligence.

Judgment was entered for the Bank.

The Court of Appeal in Australia approved.

The High Court of Australia however reversed this judgment, holding that "there was no evidence of negligence to be left to the jury.”

The Privy Council absolutely affirmed this last decision.

Now let me say that both the High Court of Australia and the Privy Council got awry in relying upon Schofield v. Londesborough, 1896, A. C. 514 and 65 L. J. Q. B. 593, which was a case arising out of a Bill of Exchange that had been altered after its acceptance, and it was held the acceptor was not liable for the alteration. That was right. Even the House of Lords in Macmillan v. London Joint Stock Bank upheld it.

The difference between the Acceptor of a Bill and the Customer of a Bank has been stated. There is no analogy. But it was affirmed in Schofield v. Londesborough by the House of Lords

"that it was wrong to contend that it is negligence to sign a negotiable instrument so that somebody else can tamper with it";

and the Privy Council adopted this, and without taking any cognizance of the disparity applied it to the Colonial Bank of Australia v. Marshall, and so gave its incongruous decision.

"that the mere fact that the cheque is drawn with spaces such that a forger can utilize them for the purpose of forgery is not by itself any violation of the obligation of a Customer towards his Banker."

It held there was no negligence in making out the cheques and gave Judgment against the Bank.

The unfortunate thing is that this is Law all over the Empire outside the United Kingdom. It is bad Law; and yet it must prevail till some other case arises in which the facts will enable the Privy Council itself to over-rule it. No other Court can do so.

This Judgment was delivered by Sir Arthur Wilson, but Lord Halsbury and Lord Macnaghten were present, though they delivered no judgments.

They are great lawyers, but they seem to have assented to Sir Arthur Wilson's judgment from which the House of Lords has in MacMillan & London Joint Stock Bank now taken away every fabric of either justice, or reason or even precedent on which it might have rested though, owing to our Constitution, it was unable to reverse or to completely overturn and reject it.

A statutory enactment might place the Law in a clear light, but it would certainly require the draftsmanship of a man who thoroughly understood the complexities—the danger of a too wide no less than of a too narrow provision-and who had the faculty of expressing the Law in clear, terse and perspicuous English.

B. T.

VOL. XL. C.L.T.-4

SIMPLIFICATION OF THE LAW.

Mr. Justice Russell of the Supreme Court of Nova Scotia has recently contributed some valuable and suggestive Articles on the Simplification of the Law, which are illumined with his erudition and facility of expression.

In one he described the Codification of the Law Merchant relating to Bills of Exchange and other Negotiable Instruments by Sir M. D. Chalmers, whose training and qualification for the work he highly eulogizes. Yet he points out some of its defects; and particularly the flaw in it which was revealed by the wellknown case of Vagliano Brothers v. Bank of Englanda case which he says without the Act would "have been decided with infinitely less difficulty and with fewer discordant opinions than the controversy actually evoked" in the English Courts and House of Lords.

After this survey, Mr. Justice Russell discusses the other Codification by Sir M. D. Chalmers, made by the Sale of Goods Act; and he regrets that it had not been "preceded by an experience similar to that which the draftsman had undergone for his work on

Bills and Notes." He says:

The Sale of Goods Act has had the effect of adding fully fifty per cent. to the already excessive bulk of Benjamin on Sales, and in the opinion of some of the best authorities has created more doubts than it has solved, and introduced confusion into some chapters of the law of sales, in which, after long struggle, the courts had at last brought order out of chaos. To justify these strictures would require space.

A single instance will have to suffice of the new doubts created on a subject that had, after much judicial backing and filling, become fairly well settled. According to English law a standing tree is part of the land in which it is growing, while a crop of potatoes, being produced (1) by annual labor and (2) manurance, is not part of the land, even while it still remains

to be dug. Now, a contract for an interest in land cannot be enforced by an action at law unless it be evidenced by a writing. What happens, then, if the owner of a forest agrees to sell a standing tree? Has he made a contract for an interest in land? If so, no action can be maintained by the buyer to enforce it. After much conflict and many confusing decisions, it came to be fairly well settled that the answer depended upon the question at what point of time the property was meant to pass to the purchaser. If it was to pass before the tree was severed from the soil, the contract was for an interest in land. If the property was not intended to pass until after it was severed, it was an agreement to sell goods and not to transfer an interest in land. Of course, it was not easy to say what the parties did actually intend as to the time when the property should pass, because in nine cases out of ten the question would never have occurred to them, and if so there would be no actual intention one way or other. But there were rules fairly well settled from which the intention on this point was to be legally inferred, and until the passing of the Sale of Goods Act there was no serious difficulty in advising a client as to whether his contract was for an interest in land or a mere agreement to sell a chattel. How stands the matter now? We have nothing to guide us beyond the statement in the definition that the term "goods" includes "things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale." It required more than half a century, from 1829 to 1888, to settle the law as it was settled before the Sale of Goods Act. Heaven only knows how long it will take to settle the meaning of these words of the codifying act by which the law has been unsettled, unless the Gordian knot be cut, as it is to be hoped it may be, by abandoning, as to this case, Lord Herschell's dictum for the construction of such an act, and assuming that Parliament meant, as the draftsman certainly did, to leave the law exactly as it stood before the act was passed.