F. was a member of the partnership known as "The Ottawa Cold Storage and Freezing Company," which was liable to the plaintiffs upon certain promissory notes, and that the plaintiffs had authorized the writers to undertake that the plaintiffs would not attempt to hold F. liable for the notes, or any of them, as a partner in the company.

Held, upon the evidence, 1. There was no ground for differing from the conclusions of the trial judge that the defendant F. was a partner in both branches of the business.

2. In the solicitors' letter there was a sufficient reservation of the plaintiffs' rights against the partnership and those who were undoubtedly members of it to prevent the letter from being treated as having any greater effect than a covenant not to sue; the language afforded a strong presumption that the parties were dealing with the liability of F., and not with the liability of the other two; and the surrounding circumstances, with reference to which it must be construed, led to the same conclusion; and therefore the debt as security for which the warehouse receipts were given to the plaintiffs were not extinguished, and the plaintiffs were entitled to the benefit of the securities, if otherwise valid.

3. There was a negotiation of a note and an actual advance at the time of the acquisition of each warehouse receipt; no doubt, on most occasions when a discount was effected, the account was overdrawn, but that was in the course of dealing, and the circumstance did not deprive the transaction of its character of a negotiation of the note for the proceeds were placed freely at the disposal of the customers, and the drawings on the account continued as before. Halsted v. Bank of Hamilton (1896-7), 27 O.R. 435, 24 A.R. 152, 28 S.C.R. 235, distinguished.

4. The firm by which the warehouse receipts were given was not the firm to which they were given, M. being a member of the latter and not of the former; and G., in signing the warehouse receipts on behalf of the storage business, was not giving receipts "as of his own property," within the meaning of s. 2(d) of the Bank Act. Since the Judicature Act, there exists no reason why if two firms have a common partner an action should not be maintained by one against the other.

5. On the evidence, the plaintiffs had shewn that the goods were not in the warehouse when possession was taken.

Judgment of MEREDITH, J., reversed.

Aylesworth, K.C., and Glynn Osler, for plaintiffs, appellants. H. M. Mowat, K.C., and G. F. Henderson, for defendants.

A. E. AMES & Co. v. CONMEE.

[Oct. 1.

Broker-Purchase of shares on margin-Hypothecation by broker-Conversion-Bought note-Account.

The judgment of the majority of a Divisional Court, 41 C.L.J. 571; 10 O.L.R. 159, was affirmed on appeal.

C. Millar, for defendant. W. N. Tilley, for plaintiffs.

Teetzel, J.]

ELECTION CASES.

[Oct. 15.

RE PORT ARTHUR AND RAINY RIVER PROVINCIAL ELECTION. PRESTON V. KENNEDY.

Parliamentary elections-Controverted election petition-Scruting-Supplementary particulars-General Rules 20, 24Invalid votes-Transfer certificates obtained without request.

The word "particulars" in Rule 24 of the General Rules respecting the trial of election petitions means particulars of "votes intended to be objected to," this being the language in Rule 20, and is not confined to further details of particulars already given.

Where for the purposes of a scrutiny the respondent had fyled and served particulars of votes objected to by him, and the scrutiny had been begun but not completed he was allowed (upon terms) to add new particulars of other votes objected to.

Semble, that the votes of persons who voted on transfer certificates obtained from the returning officer without any personal or written request were invalid.

H. M. Mowat, K.C., for respondent. Hellmuth, K.C., and W. J. Elliott, for petitioner.

HIGH COURT OF JUSTICE.

Anglin, J., Trial.]

FLYNN v. KELLY.

[June 25.

Contract-Proof of making-Telegraph-Original message— Destruction-Absence of proof-Secondary evidence-Admissibility of transcript received-Mistake-Agency of telegraph company-Failure to prove contract-Sale of goods -Refusal to accept-Non-delivery of part.

The plaintiffs, who were dealers in canned fruits in Ontario, wrote to the defendants in British Columbia a letter quoting prices of various canned goods. Proof of the loss of this letter was given, and secondary evidence of its contents received. It concluded with a request to the defendants to order by telegraph at the expense of the plaintiffs. The defendants telegraphed an order for specified quantities of goods. The message as received by the plaintiffs specified "three fifty Lombard plums," and the plaintiffs shipped 350 cases of plums, and the other goods specified, with the exception of 250 gallons of pears, which they proposed to send later. The defendants refused to accept the goods shipped, because they said they had ordered only "fifty Lombard plums," and because the pears were not sent. The defendants alleged that the telegraph company had made a mistake in the transmission of the message, but the original message as delivered by the defendants to the company at Vancouver was not proved.

Held, that assuming the mistake to be proved by proper evidence, the defendants were not responsible for it, for, even if the telegraph company were the defendants' agents, the authority of the agents was limited to the transmission of the message in the terms in which the defendants delivered it; and the document handed to the company for transmission was the original order which must be proved to establish the contract.

Henkel v. Pape (1870) L.R. 6 Ex. 7 and Kinghorne v. Montreal Telegraph Co. (1859) 18 U.C.R. 60 followed.

The fact of the destruction of the message delivered by the defendant to the telegraph company was not shewn, and, though secondary evidence of the contents was given by the defendants, it was inadmissible, and there was therefore no evidence that the transcript delivered to the plaintiffs was incorrect.

But the burden of proving the contract was upon the plaintiffs; and the admission of the transcript in evidence without

objection did not render its terms binding upon the defendants. It was not evidence of the order given by the defendants; it was relevant and admissible primary evidence to prove that the order had in fact been transmitted and delivered to the plaintiffs; but its admission in evidence did not excuse the plaintiffs from making proof of the order by production of the original or by proof of its destruction or loss and secondary evidence of its contents.

Moreover, although secondary evidence was given of a portion of the contents of the plaintiffs' letter quoting prices, the plaintiffs had omitted to prove what were the prices quoted, and this material element of a contract was lacking.

Held, also, that the non-delivery of the pears ordered would have justified the defendants' rejection of the other goods sent. M. Brennan, for plaintiffs. A. C. McMaster, for defendants.

Mabee, J.]

[June 29. RE ALMONTE BOARD OF EDUCATION AND TOWNSHIP OF RAMSAY. Public schools-Municipal by-law altering boundaries of school sections-Motion to quash-Forum-6 Edw. VII. c. 53, s. 29, sub-s. 4(0.).

A motion to quash a by-law of a municipality altering the boundaries of a school section, upon the ground that the by-law is invalid, must since the statute 6 Edw. VII. c. 53, s. 29, sub-s. 4 (0.), be made to the judge of the country or district Court in which the section is situate, and not to the High Court, which has jurisdiction only upon an appeal as provided by the enactment.

G. Wilkie, for the Board of Education. W. E. Middleton, for the township corporation.

REX v. FERGUSON.

Boyd, C.] [Sept. 19. Criminal law-Prosecution under Ontario Act-Application to police magistrate by Attorney-General to state case-Time.

Sec. 900 of the Criminal Code is now available for the review of all summary convictions under Ontario law, by virtue of the amendment to R.S.O. 1897, c. 90, by 1 Edw. VII. c. 13, s. 2 (0.).

An application by the Attorney-General to a magistrate to state a case in regard to a prosecution under an Ontario statute need not be made within the time limited by R.S.O. 1897, c. 90, s. 9, which applies only to appeals to the general sessions, but should be made within a reasonable time, no time being limited by s. 900, and no rules having been made under s. 533 of the Code.

J. R. Cartwright, K.C., for Attorney-General. J. B. Davidson, for defendant.

Mulock, C.J. Ex.D., Anglin, J., Clute, J.]

LUCAS v. PETTIT.

[Sept. 24.

Animals-Escape of bees-injury to neighbour-NegligenceScienter-Danger from number and situation of bees-Findings of jury.

The defendant placed a large number of hives of bees upon his own land within one hundred feet of the plaintiff's land. While the plaintiff was at work with two horses upon his own land the bees attacked and stung the horses so that they died, and also stung and injured the plaintiff. In an action to recover damages for his loss and injury, the jury found, inter alia, that the bees were in ordinary flight at the time of the occurrence; that they were the defendant's bees; and that the defendant had reasonable grounds for believing that his bees were, by reason of the situation of his hives, or their numbers, dangerous to persons or horses upon the highway or elsewhere than on the defendant's premises.

Held, that the doctrine of scienter, or notice of mischievous propensities of the bees, had no application, nor could the absence of negligence, other than as found by the jury, relieve the defendant; it was his right to have on his premises a reasonable number of bees, or bees so placed as not unfairly to interfere with the rights of his neighbour, but if the number was unreasonable, or if they were so placed as to interfere with his neighbour in the fair enjoyment of his rights, then what would otherwise have been lawful became an unlawful act; the finding of the jury meant that the bees, because of their number and situation, were dangerous to the plaintiff; and the defendant was liable for the injury flowing directly from his unlawful act. Judg ment of MAGEE, J., affirmed.