were especially proper for determination by the foreign law. So in the Carron Iron Co. v. McLaren, 5 H. L. 416, the jurisdiction of the English Court of Chancery to interfere by injunction and restrain a suit brought in Scotland was explicitly asserted. It is, however, equally clear from recent cases that the court will not exercise such a jurisdiction unless some special ground is shown. For the same plaintiff to bring two actions for the same cause in the same country, is prima facie vexatious. Where the courts of law and the courts of equity are separate and distinct courts, for a plaintiff to institute proceedings in both, except in a limited class of cases, was always regarded as so vexatious that the defendant was entitled in a court of equity to an order of course calling upon the plaintiff to elect as to which suit he would proceed with. But where one of the actions is in a foreign country a different rule seems to prevail, and some special grounds must be shown before the court will interfere. Thus in McHenry v. Lewis, 22 Ch. D. 397, the plaintiff had sued, on behalf of himself and all other holders of certificates of bonds and shares of a railway company, the trustees of the com pany to make them liable for alleged breaches of trust. Two years before another person had begun a suit against the same trustees, the object of which was to a certain extent identical with McHenry's action. Within a month after beginning his action in England McHenry joining another person with him as a co-plaintiff, began an action in America for purposes substantially the same as those sought in his English action. The defendants made an application to restrain McHenry's English action during the pendancy of the other two actions, which was refused by Mr. Justice Chitty, and his order was unanimously affirmed by the Court of Appeal. Hyman v. Helm, 24 Ch. D. 531, was a case in which there had been dealings between the plaintiffs, merchants carrying on business at San Francisco, and the defendants, who carried on business in Manchester. Disputes arose as to the state of the accounts between them. The plaintiffs, the American merchants, in Oct., 1882, began their action in the Court of Chancery, and in April, 1883, the defendants delivered their statement of defence claiming a large balance as due them. In the end of the same month the defendants began an action in San Francisco against the plaintiffs in the English action to recover the amount alleged to be due them. The plaintiffs in the English action thereupon moved to have the San Francisco action stayed, and the motion was refused ; and an appeal was dismissed by the Court of Appeal. Re Boyse, Crofton v. Crofton, 15 Ch. D. 591, was a case in which one would think the court would be likely to interfere and restrain proceedings abroad. A decree had been made for the administration of an estate and creditors in France carried in claims for the purpose of proving them under the decree. On the administrator giving notice of his intention to cross-examine them on their claims they asked leave to withdraw them and then began suits in a French court. V. C. Malins refused to restrain them from doing so although, as he said, any judgments they might recover in the French court would be of no use to them as they could only be treated as prima facie evidence of the debt, and they must still come in and prove under the decree. In the present case the plaintiffs have, in my judgment, failed to show any special grounds for this court interfering and granting the relief sought. Where the contract was made may be an open question. The plaintiffs may have witnesses here, but on the other hand the head office of the company is in Ontario, and under its terms the loss under the policy is payable there. Under the provisions of the Ontario Judicature Act, which were proved on affidavit as foreign law, the plaintiffs can obtain in the action brought against them in Ontario all the relief which they could obtain if successful on their bill in this court. That the suit in this court was begun first is not a sufficient reason. In Hyman v. Helm not only was the English action begun first but the defendants had appeared to it and delivered their statement of defence before they began their action in San Francisco. Then the defendant may be able to obtain a more speedy determination of the questions in issue, in Ontario, than could be arrived at in the court here. In McHenry v. Lewis, Jessel, M. R., said he did not know the state of the cause lists in the United States, and it might be eminently desirable to let the action there go on with the view of getting a speedy trial, and he seems to have considered that a material element. That the plaintiffs are willing to submit to terms does not seem to be a reason for interfering. In Hyman v. Helm the plaintiffs in the English action offered to bring into court the whole amount sought to be recovered in the San Francisco action. The authorities show that the bringing a cross-action in a foreign court, or even beginning a second and concurrent action in a foreign court is not prima facie vexatious. L. J. Bowen said in Hyman v. Helm, "It lies on the persons who wish to put an end to concurrent litigation here and abroad to make out a case of oppression. I think it lies on the person who wishes to stop foreign litigation to make out a clear case." In Peruvian Guano Co. v. Bockwoldt, 23 Ch. D. at p. 232, Lindley, L.J., said, “I think the court ought to be very cautious before it interferes in cases of that kind, and for this reason :-The Court here is not and cannot be alive to all the advantages which a person may expect to derive from suing in the foreign court. This Court does not know with accuracy, unless the matter is brought to its attention, what reasons there may be for preferring one court to another. If in any case it is established that there is nothing except vexatious litigation, there is ample jurisdiction in this Court to make the order asked, but we ought to take care what we are about." I cannot say that the plaintiffs here have made out a case of oppression or that there is nothing but vexatious litigation in the institution of the suit in Ontario, and therefore, following the English authorities, I must refuse the injunction prayed for, and with costs, as the motion is not disposed of on a question of facts. MCARTHUR v. McMILLAN. Promissory note. Indorsement. Waiver of presentment. Pleading." Notes of mine."-Appropriation of payments. A note payable to the order of the defendant and indorsed "Pay to the order of McA., B. & Co." (the plaintiffs) may be declared upon as indorsed by the defendant to the plaintiffs, although the name of another indorser appears below defendant's signature; there being no explanation of the circumstances under which this other name was signed. Quere. Whether under an allegation of presentment for payment and notice of dishonor the plaintiff can prove waiver of presentment and notice. The phrase "Notes of mine" is wide enough to cover notes indorsed as well as made. The principles of appropriation of payment discussed. H. M. Howell, Q. C., and Isaac Campbell for plaintiffs. [13th July, 1885.] TAYLOR, J.—The plaintiffs sue the defendant as an indorser upon a promissory note made by the late W. N. Kennedy. The defendant objected at the close of the case that there was no evidence to support the declaration, the note produced and proved not being the note declared upon. The declaration contains only one count, and alleges that one W. N. Kennedy on the 13th day of October, 1884, by his promissory note now overdue, promised to pay, fifteen days after date, to the order of the defendant, the sum of $1,100, with interest at ten per cent. per annum, at the banking house of McArthur, Boyle & Campbell, Winnipeg, and the said defendant indorsed the said note to the plaintiffs, and the said note was duly presented for payment at the said bank, but was dishonored, whereof, the defendant had due notice yet did not pay the same. The note produced is indorsed by the defendant and S. C. Biggs, and the objection is that the latter and not the defendant indorsed it to the plaintiffs. The defendant contends that if the plaintiffs set out and rely on the note as indorsed to them by the defendant, the indorsement of S. C. Biggs must be struck out, and that this must be done before or at the trial. There is no doubt of the rule that intermediate indorsements, if not proved, must be struck out, which has the effect of discharging from liability the parties whose names are struck out. But the present is not a case of that kind. The note is made by W. N. Kennedy, payable to the order of the defendant, and then on the back of it there appears an indorsement as follows: of McArthur, Boyle & Campbell. D. H. McMillan." "Pay to the order After that comes the signature, "S. C. Biggs." Beyond the statement of Mr. Biggs when examined as a witness, "My name is on it as indorser," there is nothing to show how it came there. The note was, in fact, indorsed by the defendant to the plaintiffs and is properly declared on as so indorsed to them. The further objection was taken that notice of dishonor was not proved, and that the plaintiffs cannot rely upon the waiver by the defendant of protest and notice which was proved, because that is not specially set out in the declaration as it must be if relied on. The case of Burgh v. Legge, 5 M. & W. 418, seems to support the defendant's contention, and so does Allen v. Edmundson, 2 Exch. 719. The same thing was held in Cory v. Scott, 3 B. & Ald. 621, although in that case the judges differed in opinion. Bayley, J., held that, if notice be averred to have been given it ought to be proved, and proof of circumstances which excuse the giving of notice did not seem to be ad idem with such an averment. Holroyd, J., on the other hand considered the general allegation of notice in the declaration sufficient. Against the defendant's contention there are the cases of Cordery v. Colvin, 14 C. B. N. S. 374; Rabey v. Gilbert, 6 H. & N. 536; and in Harrison v. Bailey, 99 Mass. 620, it was held that evidence of a waiver of demand and notice is sufficient to support an allegation in the declaration of demand and notice. Numerous other American authorities to the same effect are cited in Chitty on Pleadings (16th Am. ed.) vol. 2, p. 79, note y. But the plaintiffs here, although they did prove a waiver of protest and notice signed by the defendant, are not driven to rely upon that. There is ample evidence of presentment and notice to the defendant. Not, it is true, of a formal protest and notice sent to the defendant by a notary, but that is not necessary. The book-keeper of the plaintiff's attorney was called as a witness, and he proves that on the day the note fell due, the 31st of October, he received it from the plaintiffs and presented it at the place where it is payable to the ledger-keeper in the bank, who said there were no funds, or not sufficient funds, and |