3 classes, and plaintiffs were not allowed to controvert this assumption. They were, therefore, directed to proceed on any 3 which they might prefer. No doubt they would elect to proceed on one of each class.

It does not seem, therefore, that, as a matter of pleading, the joinder of the 4 patents is irregular or embarrassing. Whether they can be more conveniently tried together or separately, and whether with or apart from the other causes of action, will be determined in due course.

Having lately had to consider this important and sometimes difficult question of joinder of causes of action, I have reached the following result as to this case.

All claims for wrongs alleged to have been committed by all the defendants jointly and subsequently to the incorporation of the defendant company, can be joined, but no others. The individual defendants cannot be attacked in this action for anything done by them prior to the birth of the Business Systems Company. The statement of claim must be amended so as to conform to this ruling, both in the statement itself and in the prayer for relief. If the paragraphs which set out the alleged wrongful acts of the individual defendants before the incorporation of the defendant company, are to be allowed to remain, it must be only as a matter of inducement, as already pointed out, and it must be made quite clear that these are in no way in issue in the present action, so that (for instance) no discovery can be had in respect of them.

I regret much that plaintiffs find it somewhat difficult to frame their action so as to comply with the Rules. The frequent use of companies has tended to make this more perplexing. It is not easy to separate in one's mind a company from those who compose it or control it; but they are as distinet as twin brothers, however alike they may be. An order will issue that plaintiffs amend their statement of claim within a week or 10 days, and that defendants have 10 days after service of the amended statement of claim to serve their statement of defence.

The motion has not been wholly successful, but such a measure of relief has been obtained that I think the costs must be to defendants in the cause.

CARTWRIGHT, MASTER.

NOVEMBER 3RD, 1905.

CHAMBERS.

SPARROW v. RICE AND BARTON.

Writ of Summons-Service out of Jurisdiction-Service on Co-defendant in Jurisdiction

Partnership-Rule 162

(g)-Action" Properly Brought" in Ontario.

Motion by defendant Barton to set aside order for service out of the jurisdiction of notice of writ of summons and service of the writ thereunder upon defendant Barton, under Rule 162 (g).

R. McKay, for defendant Barton.

C. A. Moss, for plaintiffs.

THE MASTER:-The parties are all foreigners, and the action is for alleged breach of a contract to be performed in the province of Quebec. Plaintiffs are for some reason de sirous of having judgment in this province. They issued a writ here and succeeded in serving Rice. Then they obtained the usual ex parte order for service on Barton, which, it is now sought to set aside.

The parties are sued as individuals and not as partners, so that the argument based on Rule 222 does not apply. I agree with the construction of that Rule contended for by Mr. Moss-that, even if the partnership still existed (which it was said it does not), it is not obligatory to sue the firm -the separate partners can be sued as individuals, as was done here, at a plaintiff's option.

Then it was argued that the words of sub-sec. (g) “properly brought" should receive a strict construction, and that it was not intended to apply to a case like the present. Here it was contended that the action on its face was not "properly brought" in this province. With this I am not able to agree. As was said by Osler, J.A., in Murphy v. Phoenix Bridge Co., 18 P. R. 495, at p. 497, "the contention of the defendants that no action would lie in the Courts of this country, because they cannot under our Rule be sued as foreigners out of the jurisdiction, is not maintainable." He then goes on to quote from Jackson v. Spittall, L. R. 5 C. P. 542, 549, which is to the effect that though every fact arose abroad and the dispute was between foreigners, yet the

Courts would clearly determine the cause if in its nature transitory, and if the defendant had been' served with a writ while in England.

How far such a judgment would be of any practical benefit is for plaintiff's to consider. That it is thought to be useful is shewn by their submission to the necessity of giving security for costs.

So far as appears at present, the action is properly brought here. If the contrary can be shewn hereafter, no doubt this Court will dismiss it with costs.

The motion therefore fails and is dismissed with costs to plaintiffs in the cause.

The defendant Barton will have two weeks' further time to put in his defence.

CARTWRIGHT, MASTER.

CHAMBERS.

NOVEMBER 3RD, 1905.

GREER v. SAWYER-MASSEY CO.

Venue Motion to Change Action to Rescind Contract— Construction of Proviso in Contract as to Place of Trial -Jury Notice.

Motion by defendants (1) to strike out the jury notice. and (2) to change the venue from Orangeville to Hamilton. Grayson Smith, for defendants.

C. A. Moss, for plaintiff.

THE MASTER:-This action is of the same character as that of Dulmage v. White, 4 0. L. R. 121.

Plaintiff purchased a threshing machine, etc., from defendant company in September, 1904, and gave certain notes in payment. The two first of these came due in January,

1905.

The machine was not satisfactory to plaintiff, and certain dealings and correspondence took place in respect thereto. Plaintiff alleges in the statement of claim that defendants' agent agreed to cancel the original agreement, which contained the usual conditions and warranties, and return the notes if the machine could not be made satisfactory; and that, after a second test, defendants' agent admitted that nothing could be done with the machine. Plaintiff claims: (1) to have the notes cancelled and delivered up; (2) to have the September agreement cancelled and the

registration vacated; (3) damages for breach of warranties and agreements; (4) return of freight paid by plaintiff; and (5) further relief.

For defendants it was argued that this action is governed by the proviso in the September agreement: "Any Division Court action hereunder shall be entered, tried, and finally disposed of in the 1st or 9th Division Court of the county of Wentworth, and any other action shall be tried at Hamilton."

For plaintiff it was strenuously argued that this was not an action under that agreement, but on the alleged new oral agreement to cancel the first agreement and return the notes. But it does not seem to me that this can prevail. It was not until defendants had commenced an action in a County Court on the two first notes that this action was brought; and an order was therein made staying that action until the present action was disposed of; and the notes are now made the subject of a counterclaim.

An action brought to set aside an agreement and have notes given thereunder returned, and for damages for breach of warranties and agreements therein set forth to the amount of $1,000, seems clearly an action brought “hereunder."

The fact that plaintiff in his statement of claim alleges that, under a new oral agreement, the original written contract was rescinded, does not make his action less an action in respect of the written agreement or "thereunder."

in

Even if I were of a contrary opinion, it would be my duty to follow the decision of my predecessor Dulmage v. White, supra. I would do this in deference to Cruso v. Bond, 9 P. R. 111, at p. 117 (and see S. C.. 1 O. R. at p. 387), and also in obedience to the principle of sec. 81 (2) of the Judicature Act.

To hold otherwise would be an invitation to purchasers. under such agreements to forthwith commence proceedings for rescission, as has been done in this case. In this way a purchaser could have the action tried in his own county or at any other place which the Rules would allow. Being of this opinion, it is unnecessary to go into any question of the preponderance of convenience.

There remains the question as to the regularity of plaintiff's jury notice. I am of opinion at present that it is not irregular under the decision in Sawyer v. Robertson, 19 P. R. 172, by reason of the 3rd and 4th paragraphs of the prayer for relief. It is not necessary to decide this, how

ever, as defendants are willing, if plaintiff so desires, that the case should go to trial at the Hamilton winter assizes, when the trial Judge can exercise his discretion. As these winter assizes will be practically a continuation of the nonjury sittings, which only begin on 18th December, no time will be lost by the apparent delay.

As the success on the motion has been divided, and as the construction of the agreement on the question of venue was at least open to argument, I make the costs costs in the cause to the successful party.

MEREDITH, J.

NOVEMBER 3RD, 1905.

WEEKLY COURT.

RE MCNICOL.

Wili-Construction-Devise of West Half of Lot with Limi tations-Codicil Substituting East Half-Implication of Limitations-Estate.

Motion by John McNicol under Rule 938 (a) for an order determining certain questions arising upon the will and codicil of Colin McNicol, deceased.

R. S. Robertson, Stratford, for John McNicol.

G. G. McPherson, K.C., for executors and for Mary McNicol and others.

E. Sydney Smith, K.C., for Archibald McNicol.

J. R. Meredith, for infants.

MEREDITH, J.:—

By the will the testators son John had been given certain rights in the west half of a farm lot-it had been, roughly stated, given for the benefit of him and his wife and family. The other half of the same lot had been, by the will, given, again roughly speaking, to another son or for his benefit.

For some reason, not appearing in the codicil or will, but which, doubtless, the circumstances surrounding the testator at the time when the codicil was made, and their difference from those existing when the will was made, if brought to light by evidence, would make plain, he desired to change the half lots from the one to the other of the beneficiaries; to give the east half where in his will he had given the west half and vice versa.

The mode taken to effect this purpose was a somewhat crude one; but not crude or uncertain enough to cause to