ing a direction that the case on appeal should not be settled until an appeal to the Supreme Court of Canada from the judgment of the Supreme Court of this Province refusing to set aside the winding-up order was determined, and that the company's solicitors on the company's appeal in the action against C. should act therein only on instructions of the liquidators, or their solicitor.

Held, that as there was no error or omission in the order resulting from mistake or inadvertence, the motion should be refused.

Hazen, K.C., for application. Teed, K.C., contra.

Railways-Negligence-Fire started by sparks from locomotive Joinder of plaintiffs having separate causes of action arising out of the same transaction-Evidence of cause of fire. Action for damages for loss of hay destroyed by a prairie fire alleged to have been started by sparks from a locomotive running on defendants' railway. It was found to the satisfaction of the trial judge that the fire started during or immediately after the passing of the locomotive and that there was no other possible cause for the starting of the fire.

Held, that the proper conclusion to be drawn was that the defendants were liable, notwithstanding that the sparks must have carried the fire a distance of 127 feet and that there was no evidence as to the condition of the smokestack and netting at the time.

A number of plaintiffs were joined in the action, each having a separate claim for losses by the same fire; and, at the trial, defendants' counsel claimed that they could only proceed by separate actions, and that their counsel must elect for which one he would proceed and strike out the other names from his pleadings. The separate claims of the respective plaintiffs plainly ap

peared on the face of the statement of claim, and the defendants had taken no steps to have it amended, but filed a statement of defence.

Held, without deciding whether Rule 218 of "The King's Bench Act" justified the joining of the plaintiffs in this case, that defendants, if they thought it did not, should have moved to strike out all but one of the claims before filing a statement of defence, and had lost the right to take such objection afterwards. Hoskin, for plaintiffs. Aikins, K.C., and Coyne, for defendants.

Richards, J.]

[April 16.

CARRUTHERS v. CANADIAN PACIFIC RY. Co. Railways-Obligation to fence-Railway Act, 1903 (D.), c. 58, s. 237(4)—Animals at large.

The plaintiff's claim was for damages for the killing, by one of defendants' trains, of his four horses which got on to the right of way through an opening in the fence dividing the right of way from a neighbour's field. Plaintiff kept his horses in fenced field, the entrance to which was secured by bars, but, some person having without the knowledge or permission of the plaintiff let down the bars, the horses strayed through the opening to a highway, thence through another opening into the field from which they got on to the right of way. The killing of the horses did not occur at any point of intersection of the railway with a highway. The opening in the defendants' fence through which the horses got on to the right of way had been left unprovided with a gate by defendants' negligence for about two years.

Held, that the proved facts brought the case within sub-s. 4 of s. 237 of the Railway Act, 1903 (D.), that there was nothing to shew that the animals got at large through the negligence or wilful act or omission of the owner or his agent or of the custodian of such animal or his agent, and therefore the plaintiff was entitled to recover the amount of his loss from the defendant company.

Under said sub-s. 4, it is immaterial so far as the company's liability is concerned, whether the animals killed or injured were or were not lawfully on the land from which they got on to the right of way.

Quare, whether sub-s. 4 would not apply even if the animals

had been struck at a point of intersection of the railway with a highway.

Barrett, for plaintiff. Robson, for defendants.

Richards, J.]

[April 23.

BANK OF OTTAWA v. NEWTON.

Valuation of security held by creditor-Revaluation after partial realization of security-Title to property covered by security after consent of assignee to its retention by creditor.

A trading firm owed the plaintiffs and had given security for the debt. They afterwards made an assignment under the Assignments Act, R.S.M. 1902, c. 8, to the defendant, who is an official assignee. The plaintiffs proved their claim at $5,390, valued the security at $3,612 and claimed to rank on the estate for $1,778. The defendant neither consented to their right to rank for that sum nor required them to assign the security to him. The plaintiffs realized, from part of the security, the net amount of $4,090 after which defendant served plaintiffs with a notice disputing their claim to rank for the $1,778. Plaintiffs then brought this action for a declaration that they were entitled to rank for that sum under s. 29.

Held, 1. The assignee was not entitled to the balance of the securities.

2. The plaintiffs must revalue that balance if they desired to rank on the estate at all.

3. After such revaluation, the amount for which the plaintiffs would be entitled to rank would be the balance of their original claim after deducting the sum already realized and the amount of such revaluation.

The plaintiffs' counsel argued, on the authority of Bell v. Ross, 11 A.R. 458, that the defendant, having delayed an unreasonable time to exercise the option given by s. 29, should be held to have thereby assented to the retention of the securities by the plaintiffs, and that such assent vested in them an absolute title to the assets, and that they were entitled to realize what they could out of the balance without accounting to the estate and to rank for the amount of their whole claim reduced only by the amount at which they had valued the securities.

Held, however, that that case was distinguishable, as it was decided on the special provisions of the Insolvent Act of 1875 which were quite different from those of the Assignments Act, also on the ground that under the latter Act a debtor cannot get a discharge without payment of all claims in full, whereas he might under the former.

Robson, for plaintiff's. Hoskin, for defendant.

Dubuc, C.J.]

[April 24, 1903.

SCHELLENBURG v. CANADIAN PACIFIC RY. Co.

Railways-Obligation to fence.

The meaning of the words "not improved or settled, and inclosed" in sub-s. 3 of s. 199, of the Railway Act, 1903 (D.) describing lands on either side of the railway which a railway company is not required to fence off, came again under consideration in this case. The chief justice held that the plain meaning was the same as if the words were, "not improved and inclosed, or not settled and inclosed," so that if the lands are not inclosed, there is no obligation to fence, though they may be both improved and settled or occupied.

Dreger v. Canadian Northern Ry. Co., 15 M.R. 386, 41 C.L.J. 341, not followed.

Lemon, for plaintiff. Bond, for defendants.

Perdue, J.]

MCKENZIE v. MCMULLEN.

[April 25.

Evidence-Proof of verbal agreement collateral to written contract-Warranty-Representation on condition, when treated as ground for rescission, and when as warranty only.

To an action by the plaintiffs on a lien note or agreement whereby the defendants promised to pay the plaintiffs $465 and interest and acknowledged that it was given for a pair of horses and agreed that the title, ownership and right of possession of the horses should remain in the plaintiffs until the note should be paid, with power to retake possession and sell on default of payment or on the happening of other events mentioned, the defendants pleaded that the horses had been sold to them with a verbal warranty that they were young and sound and free from

bad habits, that such warranty had been broken and that the defendants had suffered damages to the full amount of the plaintiffs' claim.

Plaintiffs claimed that evidence to prove such defence could not be admitted to contradict or add to the written contract on which they relied.

Held, that the lien note had been given simply for the purpose of securing payment to the plaintiffs and it was not intended to include in writing all the terms of the agreement between the parties, and that evidence to prove the alleged warranty and the breach of it was admissible. De Lasalle v. Guildford (1901) 2 K.B. 215, and Erskine v. Adeane, L.R. 8 Ch. 756, followed.

The judge, having found on the facts in favour of the defendants, allowed them $265 as damages for the breach of warranty, and gave plaintiffs the option of taking judgment for the balance, without costs, or of accepting defendants' offer to return the horses on the cancellation of the lien note.

The defendants having kept the horses for a considerable time and made a payment on account, it was held that the contract must be treated as executed and that any representation or condition as to the quality of the goods must now be regarded only as a warranty, for the breach of which compensation must be sought in damages and not by rescission of the contract.

Haggart, K.C., and Sullivan, for plaintiffs. Hoskin, for defendants.

Full Court.]

Province of British Columbia.

SUPREME COURT.

[Jan. 25.

STONE v. ROSSLAND ICE & FUEL CO.

Promissory notes-Extension of time for payment-Release of co-maker-Surety-Notice-Collateral security-Credit for sums realized-Appeal-Ground not distinctly raised at trial-Question of fact.

D. who was with others jointly indebted to the plaintiff on certain promissory notes in relation to the transfer of a business as a going concern, did not in his pleadings, nor at the trial, until