Editorial Committee of the Cambridge Law Journal

The Law of Banks and Banking and Bills of Exchange by J. D. FalconbridgeReview by: H. C. G.The Cambridge Law Journal, Vol. 6, No. 1 (1936), pp. 131-132Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4502909 .

Accessed: 14/06/2014 06:19

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating withJSTOR to digitize, preserve and extend access to The Cambridge Law Journal.

http://www.jstor.org

This content downloaded from 185.44.78.129 on Sat, 14 Jun 2014 06:19:03 AMAll use subject to JSTOR Terms and Conditions

Book Reviews. Book Reviews. 131 131

Reading the book from cover to cover has failed to reveal any defect or, having regard to the object of the work, any omission, of great sub- stance, but there are a few misprints and minor inaccuracies which should be corrected when a new edition is prepared.

On p. 55, in discussing section 51 (3) of the Administration of Estates Act, 1925, it is stated that for the section to apply the infant must have died 'unmarried'. The Act says 'without having been married': youthful widows and widowers are not concerned.

Where a gift of an entailed interest is saved by section 32 of the Wills Act, 1837, it may be that, as Mr. Bailey unequivocally asserts, the donee's will can bar the entail under section 176 of the Law of Property Act, 1925 (p. 62). But it cannot be predicated with certainty that the donee can be said to be in possession within the section.

In dealing with advancement under section 32 of the Trustee Act, 1925, it is not made clear that the section has no application to instru- ments which came into operation before 1925 (p. 80).

At p. 120, Re Chardon [1928] 1 Ch. 464 is given as authority for the rather surprising statement that 'if the purpose is non-charitable, the trust is invalid unless its terms permit the whole of the trust property to be distributed at once '. This may be justifiable, but it is certainly misleading.

P. 149, second paragraph, is, it is submitted, too wide. The author states that extrinsic evidence of the testator's actual intentions is available to solve any equivocation, whether patent or latent, in the construction of a will, citing Doe d. Gord v. Needs (1836) 2 M. & W. 129. But the judgment of Parke B. in that case and the decision in Re Gregson's Trusts (1864) 2 H. & M. 504 seem to show that this requires modification. Doe v. Needs does show that extrinsic evidence may be admitted though another part of the will shows that there is more than one person answering the description, but is it authority for any larger extension than this? At any rate such evidence cannot be admitted where a blank for a Christian name indicates a possibility that no certain object had been selected.

On the present unsatisfactory state of the authorities it can only be said that the line probably lies somewhere between Mr. Bailey's view and the common text-book statement that evidence of actual intentions is admissible only when the ambiguity beconies apparent when it is attempted to give effect to the will.

We noted the following misprints: at p. 19, 1. 30, 'it to' should be 'to it'; p. 36, 1. 25, 'embodies' should be 'embodied'; p. 45, 1. 11,

had' should be 'has'; p. 75, 1. 5, 'rule' should be 'rules'.

R. H. K.

The Law of Banks and Banking and Bills of Exchange. By J. D. FALCONBRIDGE, M.A., LL.B., K.C., Dean of the

Osgoode Hall Law School, Toronto. Fifth edition. Toronto: Canada Law Book Co. 1935. lxv and 1030 pp.

THE fifth edition of this well-known work on the law of banking and negotiable instruments is a worthy successor to the editions which have preceded it. The main reason for its preparation was the revision of

Reading the book from cover to cover has failed to reveal any defect or, having regard to the object of the work, any omission, of great sub- stance, but there are a few misprints and minor inaccuracies which should be corrected when a new edition is prepared.

On p. 55, in discussing section 51 (3) of the Administration of Estates Act, 1925, it is stated that for the section to apply the infant must have died 'unmarried'. The Act says 'without having been married': youthful widows and widowers are not concerned.

Where a gift of an entailed interest is saved by section 32 of the Wills Act, 1837, it may be that, as Mr. Bailey unequivocally asserts, the donee's will can bar the entail under section 176 of the Law of Property Act, 1925 (p. 62). But it cannot be predicated with certainty that the donee can be said to be in possession within the section.

In dealing with advancement under section 32 of the Trustee Act, 1925, it is not made clear that the section has no application to instru- ments which came into operation before 1925 (p. 80).

At p. 120, Re Chardon [1928] 1 Ch. 464 is given as authority for the rather surprising statement that 'if the purpose is non-charitable, the trust is invalid unless its terms permit the whole of the trust property to be distributed at once '. This may be justifiable, but it is certainly misleading.

P. 149, second paragraph, is, it is submitted, too wide. The author states that extrinsic evidence of the testator's actual intentions is available to solve any equivocation, whether patent or latent, in the construction of a will, citing Doe d. Gord v. Needs (1836) 2 M. & W. 129. But the judgment of Parke B. in that case and the decision in Re Gregson's Trusts (1864) 2 H. & M. 504 seem to show that this requires modification. Doe v. Needs does show that extrinsic evidence may be admitted though another part of the will shows that there is more than one person answering the description, but is it authority for any larger extension than this? At any rate such evidence cannot be admitted where a blank for a Christian name indicates a possibility that no certain object had been selected.

On the present unsatisfactory state of the authorities it can only be said that the line probably lies somewhere between Mr. Bailey's view and the common text-book statement that evidence of actual intentions is admissible only when the ambiguity beconies apparent when it is attempted to give effect to the will.

We noted the following misprints: at p. 19, 1. 30, 'it to' should be 'to it'; p. 36, 1. 25, 'embodies' should be 'embodied'; p. 45, 1. 11,

had' should be 'has'; p. 75, 1. 5, 'rule' should be 'rules'.

R. H. K.

The Law of Banks and Banking and Bills of Exchange. By J. D. FALCONBRIDGE, M.A., LL.B., K.C., Dean of the

Osgoode Hall Law School, Toronto. Fifth edition. Toronto: Canada Law Book Co. 1935. lxv and 1030 pp.

THE fifth edition of this well-known work on the law of banking and negotiable instruments is a worthy successor to the editions which have preceded it. The main reason for its preparation was the revision of

This content downloaded from 185.44.78.129 on Sat, 14 Jun 2014 06:19:03 AMAll use subject to JSTOR Terms and Conditions

182 The Cambridge Law Journal.

the Canadian Bank Act in 1934 and the incorporation in the same year of the Bank of Canada, but the learned author has also seized the oppor- tunity thus afforded to introduce into the text certain changes which undoubtedly increase its value to English as well as Canadian lawyers. There are certain features of Dean Falconbridge's treatise which, in the opinion of the writer, render it indispensable to the commercial lawyers of the Empire. We have been content in England to reproduce editions of standard works on the law of bills of exchange in which the growth and development of the rules are largely relegated in an atrophied form to footnotes and appendices so that the reader is often driven to form his own conclusions as to the effect of recent case-law on the statements con- tained in the body of the text. This is not Dean Falconbridge's method. In the edition under review the text is re-written wherever necessary and in this connexion attention may be directed, in particular, to the treatment of the liabilities of anomalous endorsers of bills of exchange, which has been elucidated recently in such cases as National Sales Car- poration v. Bernardi [1931] 2 K. B. 188. It is also interesting to note that the law relating to pledges of documents of title has been modernized in Canada, whereas the long-suffering English merchant still has to make the best of the badly drafted and incomplete provisions of the Factors Act of 1889. But perhaps the most valuable attribute of the book, so far as English lawyers are concerned, is to be found in the chapters which deal with conflicts of law arising out of negotiable instruments. This, alone, would be sufficient to establish the claim of this work to a place on the bookshelf of every teacher or practitioner who has to deal with commercial law. One may sometimes disagree with the learned author's conclusions, but he is always stimulating and very much to the point. Canadian legal decisions contain a wealth of material on matters of conflict which is too frequently ignored by English writers, and Dean Falconbridge furnishes us with the key to the repositories in which it is stored. A reflection which occurs to the writer is that more attention should be paid by English lawyers, not merely in this instance but also in general, to the case-law of Canada and to the measures of law reform which have been introduced in the Dominion. We have been rebuked in this connexion, with justice, by American critics.

In conclusion there is another feature of this very important treatise which must not be overlooked. It is probably the only work of its kind in our language which recognizes the importance of the comparative treatment of the subject. Those who have doubts as to the value of the comparative method of legal research should turn the pages of Dean Falconbridge's book and investigate the question for themselves. They cannot fail to be convinced.

H. C. G.

This content downloaded from 185.44.78.129 on Sat, 14 Jun 2014 06:19:03 AMAll use subject to JSTOR Terms and Conditions