for infringement of copyright in respect of a part of the goods, and in consequence returned the goods covered by the second order, and refused to pay for what they so returned.

Held, that the property in the goods passed to the purchasers on the delivery on board the vessel at Boston, and that an action would thereupon lie in Ontario, which was the place for payment, for goods sold and delivered. The purchasers were entitled to inspect before accepting, but, even in a case of a sale by sample, prima facie the place of delivery is the place for inspection, and there was nothing in the contract to rebut the presumption.

Therefore the action came within Rule 162 (1) (e), being for a breach within Ontario of a contract to be performed within Ontario; and service of the writ of summons on the defendants out of Ontario was properly allowed.

Held, also, that it was not necessary for the plaintiffs, in obtaining an ex parte order allowing them to serve the defendants abroad, to disclose the facts that the defendants had refused to receive the goods, and returned them to the plaintiffs, and that they were in Ontario at the time of the application, or the facts regarding the copyright, or that the defendants had paid for all the goods which they retained

Held, lastly, that a proper discretion had been exercised in favour of an Ontario action; it was not a case in which the plaintiffs should be compelled to sue the defendants in England.

Lopez v. Chavarri, [1901] W. N. 115, distinguished.

J. T. Small, for the defendants.

W. E. Middleton, for the plaintiffs.

[MACMAHON, J., 22nd October, 1903.

In re KINNY.

Will-Charitable devises and bequests—Designation of beneficiaries—Per

petuities-Mortmain Acts.

Testator bequeathed all his property "to that Presbyterian congregation where I belong to and had my first communion, Churchtown. . .Ireland. The presiding clergyman, committee, and elders to have full control of all after me. They shall have the power to sell or rent to the best advantage. The minister and committee and ruling elders shall give me a decent funeral monument not to exceed £100 sterling, and then the widow and the orphan and neglected children to be seen after by the minister, committee, and

ruling elders, having succeeding authority to remember the poor of the church at Christmas every year, and to cheer the poor and the broken-hearted with the joy of Christ's death and sufferings, together with the presents presented by the minister, committee, and ruling elders at the Christmas time every year." By a codicil he appointed two persons executors and trustees, and vested all his property in them as trustees for the purposes mentioned in the will. He died within six months of the making the will and codicil, leaving both real and personal property.

Held, that the beneficiaries, namely, the widows and neglected children and the poor, were sufficiently well designated, and came within the meaning of s. 6 of the Mortmain and Charitable Uses Act, 2 Edw. VII. c. 2; and, the gifts being charitable, the rule against perpetuities did not apply to them. The minister, committee, and elders were the almoners named for the purpose of carrying the charitable design into effect.

Held, also, that the word " assurance" in s.-s. 6 of s. of that Act refers to a deed, not to will, and therefore leaves s. 4 of R. S. O. 1897 c. 112 untouched, and under that section a devise in favour of a charity is good, though made within six months before the testator's death.

H. W. Mickle, for the executors.

E. D. Armour, K.C., for the Presbyterian congregation of Churchtown.

A. W. Holmested, for the heirs at law and next of kin of the testator.

[STREET, J., 13TH OCTOBER, 1903.

POSTLETHWAITE v. McWHINNEY.

Writ of summons-Service out of jurisdiction-Parties-Injunction-Con. Rule 162.

An order allowing service of a writ of summons out of the jurisdiction cannot be supported under clause (e) of Con. Rule 162, unless the injunction can properly be asked as against the defendant out of the jurisdiction sought to be served.

In proceeding under clause (g) of Con. Rule 162 the defendant within the jurisdiction should be served with the writ and then an order applied for for leave to serve the defendant resident out of the jurisdiction with a concurrent writ, and failure to proceed in this way is not such an irregularity merely as can be condoned.

Collins v. North British and Mercantile Ins. Co., [1894] 3 Ch. 228, followed.

Livingstone v. Sibbald, 15 P. R. 315, Mackay v. Colonial Investment and Loan Co., 4 O. L. R. 571, 22 Occ. N. 389, and In re Jones v. Bissonnette, 3 0. L. R. 54, 22 Occ. N. 53, considered.

S. B. Woods, for the defendant.

R. B. Beaumont, for the plaintiff.

[STREET, J., 30тн Остовев, 1903.

In re REID.

Gift-Donatio mortis causa-Savings bank deposit-Delivery of pass bookEvidence-Corroboration.

The money at the credit of a savings bank depositor may pass as a donatio mortis causa by the delivery of the savings bank book by the depositor to the donee with apt words of gift, the deposit being subject to the condition that no part of it can be withdrawn without the production of the book.

Any evidence which is sufficient to prove any fact against the estate of a deceased person is sufficient to prove a donatio mortis causa; that is, any evidence which is believed and is corroborated as required by the statute may be acted upon. A. Spotton, for the executors.

W. H. Blake, K.C., for the claimant.

[STREET, J., 2ND NOVEMBER, 1903.

GRAHAM v. BOURQUE.

Chose in action-Assignment of money payable “in respect of the contract"Damages for interference with the work-Attachment of debts.

A contractor for the construction of a drain assigned to a bank as security for advances "all and every sum or sums of money now due or to become due and payable to me by (the employer) in respect of a certain contract existing between myself and the said (employer) for the construction of section three of the drain." describing it. The cost of doing the work was increased owing to the employer negligently allowing water to flow into the drain, and the contractor obtained a judgment against the employer for damages for the negligence.

Held, that the amount payable under this judgment passed to the bank as money payable in respect of the contract, and was not attachable by a judgment creditor of the contractor. W. E. Middleton, for the bank.

J. H. Moss, for the judgment creditor.

W. N. Ferguson, for the garnishees.

[THE MASTER IN CHAMBERS, 31ST OCTOBER, 1903.

TAYLOR v. TAYLOR.

Writ of summons-Substituted service-Solicitor.

After instructions to a solicitor to accept service of a writ of summons had been revoked, an order was obtained by the plaintiff for substituted service of the writ upon him.

Held, that he had no locus standi to move to set aside the order.

An error in the report of Young v. Dominion Construction Co., 19 P. R. 139, pointed out.

W. J. Elliott, for the solicitor.
H. D. Gamble, for the plaintiff.

(Affirmed on different grounds, by BOYD, C., 9th November, 1903.)

NOVA SCOTIA.

In the Supreme Court.

IN CHAMBERS.

[MEAGHER, J., 26TH OCTOBER, 1908.

HART v. BISSETT.

Parties--Joinder- Principal and agent-Order 16, Rules 4, 6.

The plaintiff brought an action against an agent and his undisclosed principal for damages for breach of contract. In the defences a point of law was raised that it was not competent to the plaintiff to join both in the same action, and the point of law was set down for hearing.

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E. P. Allison, for the plaintiff, contended that both might be joined in the same action under Order 16, Rules 4 and 6, and the plaintiff need not make his election until the trial. Russell, K.C., contra.

MEAGHER, J.-Under the old practice it was competent to the plaintiff to sue the agent in one action and the principal in another, but his remedy was limited to a judgment in one action. Having regard to these principles, Order 16, Rules 4 and 6, are wide enough to admit of the action being brought against both. The claim is not in the alternative. The plaintiff cannot recover against both, and must make his election before judgment. Honduras R. W. Co. v. Tucker, L. R. 2 Ex. 305, and the language of Collins, L.J., in Thompson v. London County Council, [1899] 1 Q. B. 845, referred to as in point.

[MEAGHER, J., 11TH NOVEMBER, 1903. CORNING v. BENT.

Will-Construction-Devise-Repugnancy.

Originating summons for construction of a will.

MEAGHER, J.-The testator, Norman H. Bent, by his will gave his wife an interest for life, or until she should marry, in his dwelling house and lot and the furniture, etc., therein, and after her death or remarriage, whichever first happened, he gave them to his children, living when he made his will or living at his decease, or born after his decease, share and share alike, and their heirs and assigns forever. The gift thus made to his children was the largest the law admits of. By subsequent clauses in his will he endeavoured fruitlessly. as I think, to take away the gift to his children, which he had bestowed by the above clause.

In the view I take of this will, it plainly offends against the principle recognized in Holmes v. Godson, 8 DeG. M. & G. 152; Shaw v. Jones-Ford, 6 Ch. D. 1; Bowman v. Oram, 26 N. S. Reps. 318; and other well known cases.

[RITCHIE, J., 24TH NOVEMBER, 1903.

WATSON v. LEUKTEN.

Bail bond-Discharge-Exoneretur.

This was an application for an order to deliver up the bond, given on the defendant's arrest, to be cancelled, the action having been dismissed.