In the statement of defence in the present action defendants, besides making a general denial, allege in the 3rd paragraph that in the action in Berks county "the plaintiffs. by false testimony and by inflammatory and prejudicial appeal to a foreign and alien jury and against law, defeated the just claim of the defendants." The only legal ground of defence suggested in this plea is that the judgment was obtained by false testimony.

[Reference to and quotations from Johnston v. Barkley. ante 549.]

.

Referring to the defence in question and eliminating the reference to inflammatory and prejudicial appeals to a foreign jury," etc., which if true is no legal answer, the remainder of paragraph 3 should not be allowed to stand in its present form. A mere allegation that by false testimony the plaintiffs "defeated the just claim of the defendants would not be sufficient. The defence should disclose that the plaintiffs fraudulently gave, or procured to be given, the false testimony referred to, and that such false testimony was the foundation of the judgment awarded.

Paragraph of the defence, except as introductory to a denial of the jurisdiction of the Court, affords no answer to the claim.

Paragraph 5 alleges that the Court and jury had no jurisdiction to entertain or adjudicate upon any claim by the plaintiffs herein against the defendants herein.” That absence of jurisdiction of the foreign Court to pronounce the judgment sued upon should form a good defence, is in accord with the most elementary principles of justice, and whether the facts establish such want of jurisdiction must be determined by the Court in which the action upon the judgment is brought. I think, however, that the defence should state the facts relied upon sufficiently to shew that the foreign Court had no jurisdiction: see Bullen & Leake's Precedents, 5th ed., p. 906. Paragraph 5, as it stands, is not sufficient in this respect.

I do not deem it necessary to determine whether the ruling of the foreign appellate Court against defendants' objection to the jurisdiction of the trial Court is, under the circumstances so far disclosed, conclusive against defendants. as it seems to me that would be deciding upon the merits of the defence.

Paragraph 6 of the defence contains no answer in law to the claim beyond the denial of plaintiffs' claim already pleaded in the first paragraph.

I think defendants are entitled to counterclaim for the $171.20. Trevelyan v. Myers, 26 O. R. 130, is a distinct authority for the proposition that a foreign judgment is not a merger of the original cause of action, which may, notwithstanding such judgment, be sued on in this province. It foilows that it may be counterclaimed for in an action against the holder of the original claim.

I think that upon this branch of the appeal the order appealed from should be varied by allowing defendants t amend their statement of defence, if so advised, setting up the fraud and want of jurisdiction along the lines above indicated, and that the counterclaim should be restored.

As to the jury notice, . . . it should be restored should defendants amend the statement of defence as above suggested, subject to its being struck out by the trial Judge.

Costs of the appeal and below to be costs in the cause.

ANGLIN, J.

WEEKLY COURT.

RE WILDEY.

NOVEMBER 9TH, 1905.

Will-Construction-Legacy-Specific or DemonstrativeAbsence of Source of Payment Designated.

Motion by executor of will of Margaret Wildey for an order under Rule 938 determining a question arising under the will.

J. W. St. John, for the executor and for George William Wildey.

F. S. Mearns, for John K. Minchin, assignee of Edward J. Wildey.

ANGLIN, J.-The testatrix's will contained these two paragraphs:-

"I give, devise, and bequeath all my real and personal estate, of which I may die possessed of or interested in, in the manner following, that is to say: to my son George William Wildey is to be given house and lot known as No. 35 Sheridan avenue, situated in the city of Toronto, county of York, also everything contained there in furniture." etc.

"Also all moneys, notes, or valuable documents which I may die possessed of, excepting $305 in lawful money, which is to be given to my son Edward John Wildey."

Although when she died on 11th January, 1905, it was found that the testatrix had left no 66 money, notes, or valuabie documents," her entire estate consisting of the house and lot No. 35 Sheridan avenue, and its contents, it cannot be assumed that she had not such personal property when she made the provision in favour of her son Edward. Upon this latter point there is no evidence.

The question raised is, whether the legacy in favour of Edward J. Wildey, in these circumstances, must be paid out of the realty and personalty received by George W. Wildey, or lapses owing to the failure of the source from which the testatrix intended it should come.

In my opinion this bequest is demonstrative, and was intended to take effect only in the event of the testatrix having moneys, notes, or valuable documents out of which it might be paid. The preceding gift to George W. Wildey is specific. The legacy to his brother is not charged upon it. The language of the will is wholly inappropriate to create such a charge. The $305 is, I think, made payable by George W. Wildey only in the event of his receiving the "moneys. notes, or valuable documents," or their proceeds, which the testatrix intended him to have in addition to her house and its contents. From the moneys so given to George she excepts the sum of $305 for Edward.

I think this application should have been made in Court. under clause (a) or clause (b) of Rule 938, and not in Chambers. The order will, therefore, issue as a Court order. Costs of all parties-as of a motion in Chambers, however—will be paid out of the estate.

NOVEMBER 9TH. 1905.

DIVISIONAL COURT.

GREAT WEST LIFE ASSURANCE CO v. MOORING.

Principal and Agent Account Contract

Construction

-Reformation-Liability of Sureties for Agent-Alteration in Contract-Conditions of Bond.

Appeal by defendants from judgment of OSLER, J.A., 6

O. W. R. 176.

G. Wilkie, for defendants.

H. Cassels, K.C.. for plaintiffs.

MACMAHON, J.,

THE

COURT (MEREDITH, C. J.,

TEETZEL, J.), dismissed the appeal with costs.

CARTWRIGHT, MASTER.

NOVEMBER 10TH, 1905.

CHAMBERS.

BAINES v. CITY OF WOODSTOCK.

Parties-Joinder of Defendants-Causes of Action-Municipal Act, sec. 609-Rule 186.

Plaintiff, an infant, sued by his father as next friend. The statement of claim alleged that plaintiff was injured by reason of a large quantity of planks and lumber negligently piled and wrongfully left by defendants the Patricks on a street in Woodstock; and that the officials of defendant city corporation wrongfully and negligently allowed the aforesaid obstacles to remain on said street for the space of 6 months.

Plaintiff was only 3 years old. His leg was broken by the lumber falling on him while he was lawfully using the street in question, and $1,000 damages were claimed for the injury.

Defendants the Patricks moved for an order requiring plaintiff to elect against which of the defendants he would proceed.

W. M. Douglas, K.C., for the applicants.

C. A. Moss, for defendant corporation.

C. J. Holman, K.C., for plaintiff.

THE MASTER:--The motion must succeed unless this case can be successfully distinguished from Hinds v. Town of Barrie, 6 0. L. R. 656, 2 O. W. R. 995.

Counsel for plaintiff argued that this could be done on two grounds: 1st, that here the defendants were joint tortfeasors; 2nd, that the action as constituted is authorized by 3 Edw. VII. ch. 19, sec. 609 (1), (2), and (3) (0.)

On the first point the argument was that the placing of the lumber on the highway was a joint act for which both defendants are jointly responsible.

The contrary, however, seems to have been decided in Rice v. Town of Whitby, 25 A. R. 191, which shews that if the

plaintiff in the present action had been injured before the corporation had had sufficient notice of the obstruction and sufficient time for its removal, though the Patricks might have been liable, the corporation could not have been attacked.

Assuming the statement of claim to be true, then it is clear (1) that there was first a wrongful placing of the lunber on the highway by the Patricks, and (2) a breach of their statutory duty by the corporation in not removing it within a reasonable time.

The plaintiff can proceed against the city and have his action tried as provided by sec. 104 of the Judicature Act, assuming that he has given such notice (if any) as is necessary in some cases, or he can proceed against the Patricks and have his action tried by a jury.

If he adopted the first course, the city could bring in the Patricks as third parties if they saw fit to do so. But they cannot be sued in one action so long as Rule 186 stands as at present. The tort of the Patricks was in placing the lumber on the highway, for which the city is not liable; the tort of the city consists in not removing it from the highway, and for this the Patricks are not liable.

The more the question is considered the plainer it becomes that the statement of claim alleges not a joint tort but two separate and distinct, the second of which could not be committed until after the lapse of a reasonable time from the commission of the first.

2. The section of the Municipal Act of 1903 was evidently passed in the interests of municipal corporations. Had its object been to amend Rule 186, it would no doubt have been so stated, as was done in the amendment of Rule 162 (h) by 5 Edw. VII. ch. 13, sec. 22.

But there is no mention in sec. 609 of the plaintiff in any place. Opinions may differ as to whether it might not be better to amend Rule 186 as has been done with Rule 185. But until this has been done the decisions from Sadler v. Great Western R. W. Co.. [1895] 2 Q. B. 688, [1896] A. C. 450, onward, must be followed.

Cases like Tate v. Natural Gas Co., 18 P. R. 82, and Langley v. Law Society of Upper Canada, 3 O. L. R. 245, 1 O. W. R. 143, were actions on contracts and were based on Bennetts v. McIlwraith, [1896] 2 Q. B. 461, and similar But they are not even cited by counsel in Hinds v. Town of Barrie, supra, much less mentioned in the judgment

cases.