date comes from his employer, the employer cannot grumble that he did not act upon it. Authenticity and meaning appear to me in the general law of agency, to stand on the same footing, subject, of course, to the broad difference of circumstances which are due to the difference of nature of the two. In my opinion the telegram which is only an unauthenticated copy of a document, cannot be said to be necessarily and as a matter of law, a mandate communicated in such a way that its prominence is unambiguous. On the other hand, I think that any man of business, or a jury, consulted upon the matter, would say that in a vast number of cases the internal evidence of the telegram itself, or the circumstances under which it was sent, or the relation of business between the master and the servant, would make it the duty of the servant to act on particular telegrams; and, therefore, I do not want any word that I utter to imply that any agent, whether he be a banker or otherwise, may ignore communications by telegram. At the same time I desire to say, most emphatically, that I cannot hold it as part of the doctrine of agency that a principal who has sent his agent a telegram which does not, when looked at reasonably, indicate its own authenticity, has a right to say that the agent who has on that account declined to act upon it has done so at his peril. It must be a question in each case as to whether the agent has behaved reasonably in acting or not acting upon that telegram. So much for the first point.

"With regard to the second point, as to the doctrine that there may be in law constructive notice of the meaning of a countermand which has not reached the mind of the ser vant, I agree entirely with what the Master of the Rolls has said. If it is by the negligence of the servant that the notice has not reached him, he is responsible for that negligence and for the damages that naturally follow therefrom, but that he should be, as a matter of law, disentitled to prove the fact that he did not know of something seems to me to be a doctrine which, in mercantile matters, is one which the Court will give no countenance to."

And Lord Justice Farwell said: "No one supposes that a banker or any other business man can safely disregard a telegram by neglecting to clear out his letter-box, which may contain letters and telegrams. If he does so, he does so at his peril, inasmuch as he may suffer loss himself or he may expose himself to an action for negligence. But the

plaintiff's case is not based on negligence; his case is that the mere delivery of a telegram by the post office authorities to a bank, although that telegram has by an oversight never been opened, and has, therefore, never come to the attention of the banker, operates as a countermand of payment within sec. 75, sub-sec. 1 of the Bills of Exchange Act (our sec. 74, sub-sec. 1). In my opinion that cannot be so, and I entirely agree with the Master of the Rolls as to the impossibility of applying the doctrine of constructive notice to business transactions like the present. It is a question of fact whether the payment was in fact countermanded or not. On the evidence here it is clear that the banker is simply put upon inquiry by the receipt of a telegram, and his duty is not to pay at once, but to make enquiries; and, if the mere receipt of a letter or telegram were sufficient countermand, the position of a banker in a large business would be most difficult. Supposing a mid-day post comes in with so many letters that it takes a quarter of an hour (not an unreasonable time) to open them-if during bank hours, and just as the post comes in or within five minutes afterwards, a number cf cheques are presented, is it to be said that the banker must thereupon refuse to cash any of these cheques until he has opened all his letters? On the general question of stopping by telegraph, I am disposed to think that it would depend a great deal on the custom of the bankers, and the agreement, if any, between the customers and their bankers, that business should be conducted by telegram, and this would depend on the evidence in each case."

Recent as it is, this judgment has already influenced Canadian banking law. On the strength of it, among other authorities, it was laid down in Ontario last March15 that the revocation or cancellation of the authority of a bank to part with its money must be evidenced in the same way as the authority itself; and that telegram is not sufficient to countermand the payment of a chéque.

We may say then, for the present, as far as bankers are concerned with this subject, that they are in the main in the position of the acceptor in the case of a contract by correspondence; that, although they are responsible for any negligence on their part that prevented them from receiving the message, they are not bound by it until actually acquainted with its contents; and that, if it be a message by

15 Knowles v. Bank of Montreal, 44 C. J. 31, 6.

telegraph, they are bound, upon an order, only if the telegram satisfactorily convince them of its authenticity, while, upon a countermand, they are not bound at all if the mandate to be revoked was as a cheque, in writing; at the most they are simply put upon their guard.

Montreal.

W. F. CHIPMAN.

EVIDENCE IN ACTIONS AGAINST INFANTS.

Under the earlier cases on the liability of an infant for the price of necessaries, it was a question of some doubt to what extent evidence was admissible to shew that the infant was, at the date when the goods were supplied, already sufficiently provided with articles of the same kind, so that although they were necessaries, having regard to his position in life, they were not necessaries, under the circumstances of the particular case-see Ryder v. Wombwell (L. R. 3 Ex. 90, 4 Ex. 32, 35 note). The point was, however, settled by the decision of a Divisional Court in Barnes v. Toye (13 Q. B. D. 410), and of the Court of Appeal sitting as a Divisional Court in Johnstone v. Marks (19 Q. B. D. 509), and as thus settled was embodied in section 2 of the Sale of Goods Act, 1893. It appears to be the result of that section that the plaintiff, if he is met by the defence of infancy, is bound to shew that the goods are necessaries both as regards the infant's position in life and as regards his actual requirements at the time when they are supplied, and that the burden of proof on both points is on the plaintiff; and this construction has been placed on the section by the Court of Appeal in Nash v. Inman (1908, 2 K. B. 1).

In Barnes v. Toye the Judge at the trial had directed the jury that they had not to consider the amount of clothes these being the goods in question-which the infant already had, since this had not been communicated to the tradesman; they had only to look to his position in life. In other words, he excluded from their consideration evidence that the infant was already well supplied, and Field, J., in the Divisional Court, observed that this direction was warranted by the decision of the Court of Exchequer in Ryder v. Wombwell (L. R. 3 Ex. 90), though, having regard to the judgment of Willes, J., in the same case in the Exchequer Chamber (L. R. 4 Ex. 32), the point was to be considered as an open one. The Divisional Court, however, held in Barnes v. Toye that the jury should take into consideration not merely the character of the goods, but also the question whether the defendant was in possession of such a supply of goods of the same description that he was not in want of the goods supplied. And this decision was approved in Johnstone v. Marks. "It lies upon the plaintiff," said Lord Esher, M.R., "to prove, not, that the goods

supplied belong to the class of necessaries as distinguished from that of luxuries, but that the goods supplied when supplied were necessaries to the infant. The circumstance that the infant was sufficiently supplied, at the time of the additional supply, is obviously material to this issue, as well as fatal to the contention of the plaintiff with respect to it." And Lindley, L.J.: "If he has enough of such articles, more cannot possibly be necessary to him. The law is, in my opinion, correctly stated in Barnes v. Toye.”

The law as thus determined was incorporated in section 2 of the Sale of Goods Act, 1893. That section enacts that capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property. Then follows a proviso that where necessaries are sold and delivered to an infant, he must pay a reasonable price therefor; and "necessaries" are defined as "goods suitable to the condition in life of such infant and to his actual requirements at the time of the sale and delivery." In Nash v. Inman a tailor brought an action by specially indorsed writ to recover £145, 10s., 3d., for clothes supplied to the defendant during the first year of his residence as an undergraduate at Cambridge. This was the credit price, but at the trial he claimed only £122, 19s. 6d., the cash price. He offered no evidence that the state of the defendant's wardrobe made the clothes necessary for him. The first order was obtained by the plaintiff's traveller, who called on the defendant at Cambridge, and the plaintiff's evidence was in substance limited to shewing that the clothes were supplied, and that they were charged for at the usual prices. The defendant's father, on the other hand, gave evidence that his son, on going up to the university, was amply supplied with proper clothes. The judge decided at the trial that there was no evidence to go to the jury that the goods were necessaries, and he entered judgment for the defendant. The decision went upon the assumption that the onus of proving that the defendant was not sufficiently supplied was on the plaintiff, and since he had given no evidence on this point, there was no case for the jury. The plaintiff appealed and sought to shew that the onus of proof was on the defendant, so that the judge had himself decided a question of fact which was for the jury.

But the Court of Appeal have held that, whatever may have been the former rule, the provision of section 2 of the Sale of Goods Act, 1893, has the effect of throwing the