homestead, to which the surviving spouse is entitled. It will be noted, however, that in the matter of dispositions inter vivos the husband is less restricted than at Common Law, for he is to be at liberty to dispose of all his real estate except the homestead, without his wife joining to bar her dower.

The Act will make conveyancing more troublesome in Manitoba, where heretofore husband or wife could dispose of real estate without the concurrence of the other. It will henceforth be necessary in the case of every transfer or mortgage to obtain evidence that the transferor or mortgagor is unmarried or that the property in question is not a homestead; otherwise the consent in writing of the wife or husband, as the case may be, must be obtained.

For the purpose of simplifying conveyancing in Ontario and at the same time providing more adequate protection for a widow, the writer some time ago advocated the abolition of dower as it now exists, and the introduction of legislation somewhat along the lines of the new Manitoba Act. It was suggested that the husband be permitted to dispose of all his property, real and personal, by Act inter vivos without the consent or concurrence of his wife in accordance with the present law in England, and in keeping with the wife's unlimited power with respect to her own property. On the other hand it was proposed to limit a husband's power of disposition by will to one-half of his property if he has a wife but no children, and to one-third of his property if he has both wife and children. The widow and children would have vested interests in the remainder. Provision might also be made giving the husband a similar vested interest in his wife's property.

This Act is, however, an interesting experiment, and it points in the right direction. Further comment may well be reserved until it can be seen how it works out in practice.

Toronto.

C. F. RITCHIE.

66

CURRENT COMMENTARY UPON RECENT ENGLISH AND CANADIAN DECISIONS.1

Punctuation in Wills - Bequest for "public purposes "void for uncertainty. In [1918] A. C. for April two cases require special notice. The first is Houston v. Burns, which finally establishes the essential importance of punctuation in wills. A testatrix directed her trustees to apply the residue of her estate "for such public, benevolent, or charitable purposes in connection with the parish of Lesmahagow or the neighbourhood in such sums and under such conditions as they in their discretion shall think proper." It was proved that the commas occurred in the original will, and, therefore, their lordships held that the words 'public, benevolent, or charitable purposes" could not be read conjunctively as signifying "benevolent or charitable purposes of a public nature" in connection with the parish,-in which case the bequest might have been upheld, but must be read disjunctively and, therefore, the bequest was void for uncertainty, for "public purposes" has a wider meaning than "charitable purposes," and includes much that does not fall within the latter expression, and are insufficient" because of their vagueness and uncertainty, to identify and fix the limits of the class of individuals. or objects from which the trustees are to choose "; and Lord Shaw expresses the views of all their lordships when he says (p. 348):

"In the eye of the law charity has this saving grace, that it is held to be by itself denominative of a distinct class. This extends far. But the law has taken a firmer and more rigorous line in regard to public or religious purposes. It demands from the testator the selection by himself of the particular classes of individuals or objects. The classes may be wide, but they must be

The aim of the Editor is to make this feature of the C. L. T. a really complete and conscientious review of recent English decisions likely to be of use to Canadian lawyers, so that readers of it from month to month may rely on no case important for them to be advised of, escaping their notice. Cases under the English Workmen's Compensation Act, 1906, are not considered as coming under this category.

2 [1918] A. C. 337.

definite and clear. The ambit of the classes being thus fixed by the testator, then the power of selection within that ambit may be entrusted to others. Substantially the argument of the appellants was that this law against uncertainty, now too well established to be shaken, does not apply in the present case because the uncertainty and consequent ineffectiveness of the bequest are removed by the local limitations imposed. But, my Lords, local limitations expressed by the words "in connection with the parish of Lesmahagow or the neighbourhood" do not add any definiteness to the class of purposes or objects which it was in the mind of the testator to benefit or promote. The foundation of political clubs, schools of art, a zoological garden, or an astronomical observatory in Lesmahagow, along with a thousand other things in connection with that parish or its neighbourhood, might, in the trustees' opinion, be excellent, but the bequest is void by reason of the uncertainty as to which of them or which class of them the trustees meant to favour. This is exactly the reason which invalidates the bequest where there is no geographical reference."

Company-By-law permitting Directors to refuse to register transfers. The other case in [1918] A. C. for April to which we have referred as requiring special notice is Canada National Fire Ins. Co. v. Hutchings. In it the Privy Council put at rest a point which was a good deal litigated in our Ontario Courts a few years ago, by deciding that neither sec. 132 of Part II. of the Dominion Companies Act, R. S. C. 1906, c. 79, which provides

'The directors may from time to time make by-laws, not contrary to law or to the special Act or to this Part, for (a) the regulating of the allotment of stock, . . . and the transfer of stock... :

nor sec. 138 of the same Act, which provides

'The stock of the company shall be personal estate, and shall be transferable in such manner only and subject to such conditions and restrictions as are prescribed by this Part, or by the special Act, or the by-laws of the company'

warrant the making of a by-law giving the directors an unrestricted power to disapprove transfers. The judgment specially quotes and approves of the words of MacMahon, J., in In re Imperial Starch Company,* where he says

3 [1918] A. C. 451.

4 10 O. L. R. 22, 25.

"The statute gives the company power to pass by-laws, regulating the transfer' of stock; that is: How and in what manner and with what formalities it is to be transferred. But the Imperial Starch Company has passed a by-law virtually empowering the directors to prohibit the transfer of stock; that is, unless the directors approve of the transfer it cannot be made in the books of the company. This, in effect, would prevent a holder of fully paid-up shares in the company from selling and realizing on his stock, because no purchaser could be found, if registration as owner could be prevented at the caprice of the directorate."

Damage by over-hanging trees - Landlord and Tenant-Duty of Lessor to Lessee. In [1918] 1 K. B. & P. for April.we find a case calling for mention in Cheater v. Cater." It was an action for damages for the loss of a mare through eating branches of yew trees which were growing on the defendant's land, and overhung the boundary of the plaintiff's land which he occupied under a lease from the defendant. The plaintiff did not prove that the yew trees overhung the boundary at the time of the injury to the mare to any greater extent than they had done at the date of the demise. The Court of Appeal unanimously hold that the defendant was not liable. A lessee takes the property as he finds it. The following passage from the judgment of Bankes, L.J., well expresses the views of the Court:

"I accept fully the statement of Mellish, L.J., in Erskine v. Adeane, which is in accordance with a long line of cases. He said: 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.' In the present case the plaintiff was unable to prove that there was any essential difference between the condition of the yew trees at the date of the demise and at the date when the mare ate of the branches. No attempt was made to show that there was any such difference. Upon that ground the plaintiff fails. It is therefore not necessary to consider the interesting question whether, if that had been proved, namely, that a condition of safety existed at the date of the demise and a condition of danger arose afterwards, the defendant would be liable."

5 [1918] 1 K. B. 247.

6 L. R. 8 Ch. 761.

Bankes, L.J., also observes that the cases establish that no real distinction can be drawn between damage caused by trees innocuous in themselves and damage caused by yew trees which may be poisonous. The encroachment of the boughs and roots over and within the land of an adjoining owner is not a trespass or occupation of the land which by lapse of time can become a right. It is a nuisance for any damage occasioned by which an action on the case will lie. But the relation of landlord and tenant gives rise to different considerations to those in the case of ordinary adjoining owners.

7

Master and Servant-Wrongful Dismissal-Repu diation of Contract. In re Rubel Bronze and Metal Co. and Vos is another decision of general legal interest. It is a decision of McCardie, J., which points to the conclusion that an employee may bring an action for what is termed "wrongful dismissal" against his employer, whenever the latter has unjustifiably repudiated his contract of employment. The case came up in the form of a special case stated by an umpire. The defendants, munition manufacturers, appointed the plaintiff general manager of their works for three years at a fixed salary and a commission upon the net profits of the business. After little more than a year they purported to "suspend "the plaintiff from the exercise of his duties pending an investigation as to his efficiency; compelled him to deliver up the badge he held as a person engaged in munition works on the ground that he was no longer indispensable;" and appointed another person to take charge of the works instead of the plaintiff, and took from him his business keys and informed him he must not return to the works as he was not wanted, and required him to deliver up all cash belonging to them, but-a point which raised the whole question apparently, but which the headnote omits all mention of,-they did not purport to dismiss him, nor was it found that they were 7 [1918] 1 K. B. 315.