this may be, on the 7th of October, Facey, the owner of the property, was travelling in the train from Kingston to Porus, when Harvey et al. sent a telegram after him from Kingston addressed to him "On the train for Porus" in these words, "Will you sell us Bumper Hall Pen? Telegraph lowest cash price, answer paid." On the same day Facey replied by telegram, "Lowest price for Bumper Hall Pen £900." Harvey replied accepting the property at that figure. The question, and the only question dealt with by the Board was as to the meaning of this correspondence by telegraph. The telegram to which Facey was replying indicated in express terms that Harvey wished to elicit from the owner an offer of the property. He had no mere idle, or rather, impertinent curiosity as to the price at which Facey would be willing to sell the place to somebody else, or the price at which he held it if he did not wish to sell it to anybody at all. Facey must have known, when he sent his reply, that it would be read by the receiver as an offer to sell the property at that price. Even if the correspondence had been by letters through the post office this would have been the natural interpretation, and any intelligent and fairminded jury would have said that this was what was intended by the parties. How much more certainly is this the proper interpretation to place upon a correspondence by telegraph where every idle word is penalized and communications are as brief as they can be made consistently with being intelligible. Not so, however, is the correspondence read by the Privy Council. The owner of the property is by their judgment permitted to say to his correspondent: I knew that you wished me to make an offer of my property and that this was your reason for asking me the price. When I told you that my lowest price was £900 I had every reason to assume that you would understand my reply to your enquiry as an offer to sell to you at that figure. So would any ordinary business man in any ordinary business transaction. But if you will examine your telegram closely, you will perceive that you asked me two distinct questions and that I answered only one of them. I told you that my price was £900, but if you will closely scrutinize my telegram, you will see how careful I was not to say that I was ready to sell at that figure. I am a “pretty smart dog," as you will have discovered, and the probability is that in the future when you deal with me, you will conconstruct your sentences more cutely and parse mine more

carefully before you arrive at your conclusions. If you had said, “What is the lowest price at which you will sell me Bumper Hall Pen?" you would have caught me out, for my answer would have been precisely the same as it was and I would have been bound. If I had said, "Yes, my lowest price is £900,' which is precisely what I meant to say, you would have had an offer of the property and your reply would have been an acceptance of an offer to sell, instead of being a mere offer on your part to purchase.

"Language is an invention to conceal thought. Words are not to be understood in the sense in which ordinary persons in like circumstances, and in view of all the circumstances, would read them, but may be understood in some narrow, so long as it is a strictly grammatical sense which happens to suit the convenience of a tricky correspondent." This is not "Crowner's Quest law." This is Privy Council law. For Colonial courts it is final and binding, unless, indeed, it can be regarded as a mere finding of fact, which would perhaps leave it open to a jury of business men, in a similar case, to find in accordance with the obvious intentions of the parties. It seems, however, to be regarded by Sir William Anson as a decision on a point of law, and it was probably so intended. As such it has already begun to work mischievous results.

A case comes from British Columbia: Little v. Hanbury, 14 B. C. 18, in which the defendant telegraphed, "Propose to go in from Alert Bay over to west coast of island, hunt elk; guarantee one month's engagement at least from arrival here, give earliest date you could arrive here. Paget recommends. State terms, wire reply." Plaintiff telegraphed, "Five dollars per day and expenses," whereupon, defendant telegraphed, "All right; please start on Friday." This was held, on the authority of Harvey v. Facey, to be no contract. Perhaps it was not. But it would seem under the facts as stated, that when the plaintiff, without saying anything about the "earliest date at which he could arrive," wired his terms, "Five dollars a day and expenses," he was offering to go as soon thereafter as was reasonable under the circumstances in contemplation of both parties. It may be an arguable question whether "all right" was an acceptance of that offer, the request to start on Friday having reference to the performance and not the formation of the contract, or whether the latter words were not a statement of the condition on

which the defendant was willing to accept, which would require the assent of the other party to conclude a contract. This, however, is not the point of the decision. The ruling is that under Harvey v. Facey the telegram of the plaintiff was not an offer to go at "five dollars a day and expenses," but merely a quotation of terms.

"Thus it is that the Books of the Privy Council, as the prayer-book says of the Apocryphal Scriptures, are read "for example of life and instruction of manners." Would that it were permissible to pursue the words of the Article and add, "but yet doth it not apply them to establish any doctrine."

A copy of this article with a personal letter was sent to Sir Frederick Pollock for insertion in the Law Quarterly Review, but he was away from home. A note was received from him at a later date merely saying that the Court by which the case had been decided was a very strong Court, to which I ought to have replied that the judgment was a very strong judgment. After the lapse of a few years the history of Cooke v. Oxley began to repeat itself. I do not know just when Sir Frederick began to think there was something wrong about the decision, but in the 8th edition of his work on Contracts there is a footnote to the effect that "it would not be safe to rely on this, except in closely similar circumstances." The note in the 9th edition goes further and states that this case "does not seem to be generally approved."

Meantime the authors of Crustula Juris had their fling at it in the following doggerel:

HARVEY V. FACEY, [1893] A. C. 552.

"Twas Bumper Hall Pen that they christened the place,
Far away o'er the seas in the isle of Jamaica,
And Kingston's good Mayor looked over the ground,
And said to his Council, "I guess we will take her."

Now Larchin M. Facey, he spoke for the owner,
And he was a-making by railway for Porus,
And so the Town Council a telegram sent,
And that was what led to the trouble before us.

"Will you sell us the place? Name your lowest cash price."
Thus wired the Mayor, or someone did for him,
Clearly business was meant and the Mayor in earnest,
The question was sent by request of the quorum.

Now, mark you the answer, for here comes the trouble,

"My lowest cash price will be nine hundred pounds.”

66

We will buy at your price" wired the Mayor and Council, And thus like a contract you all say it sounds.

But jump not too fast; there is room for a quibble,
And the lords of the Council will soon sniff it out,
Did he offer to sell, or perhaps only nibble
The bait that was set for too clever a trout.

Mark his name, for he now says he was only larkin',
No offer was made, he was only in fun,

He gave them his price, it is true, but remember,
Two questions were asked, and he answered but one.

Well was he named "Facey," for never such cheek
Received commendation in British dominions,
And well may we hope we shall live till the day
When the Queen's Council Board will regret such opinions.

For what did he mean when he gave them his price?
If he wanted no trade, he could say so, or then,

At least hold his tongue and not wire a message
With only one meaning for sensible men.

WILLIAM FIRTH

The Third Attorney-General of Upper Canada, 1807-1811.

BY THE HONOURABLE MR. JUSTICE RIDDELL.

(Concluded.)

A little later in the same year, Firth applied to Castlereagh for a Chief Justiceship; Allcock, who had been Chief Justice of Upper Canada, and then Chief Justice at Quebec, died of a "malignant fever;" the custom was to offer the Chief Justiceship at Quebec to the Chief Justice of Upper Canada; and Firth did not wish to contravene the prior claim of Mr. Scott, Chief Justice of Upper Canada," but asked for that Chief Justiceship which should finally become vacant. He set out with some particularity and a little ostentation his "idoneity" and his claims: and procured a letter of recommendation from Gore with whom he had not yet fallen out." The application was unsuccessful: Scott preferred to remain in Upper Canada,25 and Jonathan Sewell, the Attorney-General, received the Quebec appointment.

"Firth's letter to Lord Castlereagh from York, April 4. 1808. Can. Arch. Q. 311, 2, p. 428. Gore's letter to Castlereagh of same date, Can. Arch. Q. 311, 1, p. 133-he says: "Since he came into this Province he has acted as a man of honour and a gentleman and I believe him firmly attached to the Laws and Constitution of England," but Firth's first account for fees had not yet been presented. April 3, 1808, Gore wrote to Cooke, Can. Arch. Q. 311, p. 65-" The Attorney-General is pushing hard to be made a Chief Justice. He had been with me about six months. I believe him to be a very honest and a very capable man. I am no judge of his professional abilities. Should you promote Mr. Firth, Lord Castlereagh has a situation of £1,500 a year to give away. Do not misconceive me: I do not presume to recommend Mr. Firth-I only speak of him as I think he merits."

"Scott wrote to Gore, March 26, 1808, Can. Arch. Q. 311. 1, 57, that he had heard of Allcock's death, that when he was appointed Attorney-General of Upper Canada he had been told by UnderSecretary King, by direction of the Duke of Portland, that he might expect to succeed to the Chief Justiceship of Upper Canada, and also to the Chief Justiceship of Lower Canada; but although the latter was superior in emolument, he preferred to remain in Upper Canada, as he could not express himself in French with any degree