could not be put back in their original positions, and he dismissed the plaintiff's bill.

The cause has now come on for re-hearing, the plaintiff claiming that when he made the payment on the mortgage he was unaware of the falsity of the representations now complained of, and that the parties can be placed back in their original positions, he being willing to re-convey the undivided one-fifth share in the lands which he took under the conveyance to the members of the syndicate, and asking only for repayment of the moneys paid by him, and a decree that he is entitled to be indemnified by the defendants against any further liability upon the mortgage, which contains the usual covenant for payment of the whole of the mortgage moneys by the purchasers jointly.

In addition to the grounds on which the bill was dismissed, the defendants contend that the contract of sale was one between them on the one part and the plaintiff and the other members of the syndicate jointly of the other part, and that this contract cannot be rescinded in a suit to which all the purchasers are not parties.

Prima facie, looking at the conveyance to the purchasers, and the mortgage from them to the defendants, the transaction was a sale of all that land to all the purchasers jointly; the plaintiff's bill treats it as such throughout the defendants swear that it was ; and the evidence of what occurred at the close of the transaction seems to show that the plaintiff going in and the money being furnished for the purchase of the whole interest in the lands were necessary to the completion of the sale. On the other hand, it is true that the plaintiff paid directly to the defendants one-fifth of the whole cash payment; that he did this after the other members had made their payments; and that he says that his purchase was of a one-fifth interest in the lands. In view, however, of the circumstances mentioned, and of the fact that the plaintiff does not set out succinctly the conversation by which a bargain was made with either Carter or the defendants for the separate purchase by him of an undivided one-fifth interest in the lands, the contract of sale must be considered to have been one for the sale of the two blocks of land out and out to the members of the syndicate jointly.

Can this sale be rescinded then as to an undivided one-fifth interest in the lands in a suit by one of the purchasers against the vendors?

From the report of the case of Morrison v. Earles, 5 Ont. R. 434, it is evident that it was the opinion of Chief Justice Wilson, and Justices Patterson and Galt, of the Ontario courts, that such could be done if the transaction were such that the relation among the purchasers became that merely of joint owners and not of partners. I have the highest possible respect for any opinion of any of these three learned judges, and when they concur in one view it can be only with a great deal of diffidence that I enter upon a re-consideration of the question. Sitting in this court, however, I am not only not bound to follow their view, but I should not be justified in doing so if, in the exercise of my own judgment, however much greater weight I may feel their learning and experience should give to their opinions, I do not agree with them.

The principle upon which a court of equity acts in a case of this kind is, that the contract, if obtained by fraud, should be rescinded and annulled, provided that the parties can be restored to the position in which they stood before and at the time of the contract. "The effect of the avoidance of an agreement on the ground of fraud, is to place the parties in the same position as if it had never been made; and all rights which are transferred or created by the agreement are revested or discharged by the avoidance." Kerr on Frauds, 2nd ed. p. 366. "If when it is avoided, nothing has occurred to alter the position of affairs, the rights and remedies of the parties are the same as if it had been void from the beginning; but if any alteration has taken place, their rights and remedies are subject to the effect of that alteration.” Per Blackburn, J., in Queen v. Saddlers' Co., 10 H. L. C. 420.

Can it be said that if the plaintiff had not entered into this transaction the remaining four-fifths would have been sold to the other members of the syndicate? There is no evidence of any agreement to that effect. There appears to have been only one agreement, that between the defendants and all the purchasers. How can that be said to be annulled by a decree directing that this plaintiff be repaid the moneys paid by him, and that he convey to the defendants a one-fifth interest in the land? This would not be to annul any agreement; it would be to constitute an entirely new transaction. It may be said that it would be a just and equitable arrangement, and perhaps it would be so, but this court cannot assume to make decrees upon any such principle. The jurisdiction of this court is to annul the contract obtained

by fraud, and direct restitution, if it can equitably be done; but it cannot assume to make new contracts for parties.

Nor do I see how the parties could be placed in their original positions. Maturin v. Tredennick, 12 W. R. 740, relied on by the plaintiff's counsel, is authority only to the extent that, if the transaction is severable, inability to rescind it as to part is not fatal to the right to exercise it as to another part; but it is there held that a sale of several kinds of shares for a lump sum in one transaction cannot be set aside if the person seeking relief is unable to restore all the shares he has taken. Having found that the transaction in the present instance was one of the sale of the whole of the lands in question to several persons jointly for one sum of money, how can it be regarded as severable? Usually, an undivided one-fifth interest in land is worth much less than one-fifth of the value of the whole of the land. It is true that there is an easy method of obtaining partition, but a party is not placed in his original position if he has to go to expense for such a purpose. Even one-fifth of the whole land held separately might not be worth one-fifth of the value of the two blocks held together. These considerations show to some extent the impossibility of placing the parties again in their original position; but it appears to me that the real answer is given when we say that the defendants never agreed to sell an undivided one-fifth interest to anyone, and if they did not a decree for repayment of one-fifth of the purchase money paid, and the conveyance to them of an undivided onefifth interest in the land would not be a decree for the rescission of the contract, and it would not in any sense restore them to the position they held before or at the time of the making of the contract of sale.

In my opinion, the order dismissing the bill should be affirmed with costs.

J. S. Ewart, Q. C., for the plaintiff, reminded the court that he had, upon the argument, offered to procure conveyances from the other purchasers, and thus rescind the whole contract.

KILLAM, J.—I do not think we can make a decree to that effect, at the suit of one of the purchasers, who has not shown that he was in a position to do this when he filed his bill.

Decree affirmed with costs.

CROTTY v. THE OREGON & TRANSCONTINENTAL RAILWAY COMPANY.

Foreign corporation.—Writ for service out of jurisdiction.— Setting aside.

Held.-1. A writ of summons, in form for service in Manitoba, against a foreign corporation having no agent in the Province, is not a nullity, and (semble), the irregularity will be waived by appearance.

2. Such a foreign corporation may be sued in Manitoba for work done for the corporation there.

3. It will be assumed that a United States corporation is liable to be sued there in its corporate capacity, until the contrary be shown. 4. Service of a writ may be effected under Con. Stat. Man., c. 31, s. 32, upon a foreign corporation out of the jurisdiction, but the service cannot be made upon a mere clerk.

5. Service of such a writ may, under section 35, be authorized upon an assistant-secretary, but it must appear that service cannot be effected upon one of the proper officers of the company, and the nature of the duties of the office must be shown.

6. An order allowing service upon a foreign corporation out of the jurisdiction should be of a notice, not a copy, of the writ.

7. A writ for service in Manitoba may be issued concurrently with one for service upon an alien out of the jurisdiction.

8. An application may be made to set aside the service of a writ upon the ground that it was not served upon the proper officer of a corporation. It is not necessary to await the result of a motion to homologate the service or for leave to proceed.

George Patterson for plaintiff.

W. H. Culver, for defendant.

[27th June, 1885.]

KILLAM, J., delivered the judgment of the Court(a).—

The plaintiff sues for the value of a quantity of gravel alleged to have been taken from his lands in this Province by servants or workmen of the defendant, for use in the work of railway construction. The defendant is a foreign corporation, incorporated under the laws of the State of Oregon, having its head

(a) Present, Wallbridge C.J., Dubuc, Killam, JJ.

office in New York. The defendant had not when this action was commenced, nor has it since had, any office or place of business in Manitoba, nor was it then, nor has it at any time since, been carrying on any business in this Province.

the court.

The action was begun by an ordinary writ of summons in form for service in Manitoba, and a concurrent writ also was issued in form for service upon a British subject out of the jurisdiction of A copy of the former writ was served on one John H. Van Zile, in Manitoba, the plaintiff claiming that he was an agent of the defendant. Van Zile applied in chambers to set aside the service on the ground that he was not an agent of the defendant, and upon the return of the summons before the Chief Justice he held the service a nullity, but made no order respecting it.

The plaintiff then caused to be served in New York upon one Edward Edes, styled assistant-secretary of the defendant, a notice of the concurrent writ in the form provided for service upon an alien without the jurisdiction of the court.

The defendant then applied in chambers to set aside the writ, notice and service, and, upon the return of the summons before the late Mr. Justice Smith, he endorsed upon it the words following: Summons dismissed without costs on ground of writ of summons being a nullity." No formal order was taken

out.

The plaintiff then obtained from the Chief Justice ex parte an order authorizing service of the writ upon the defendant by service of a copy thereof and of a copy of the order, upon the Secretary or Edward Edes, assistant-secretary, at the office of the defendant in New York, and caused a copy of the concurrent writ and of the order to be served on Edes at the office in New York.

The defendant, after the expiration of the time for appealing from the order of the Chief Justice, applied to the Court for, and obtained, leave to appeal from it, but on the next day application was made in chambers by the defendant to set aside the original writ, the concurrent writ, the order of the Chief Justice and the service effected under it. On the return of the summons, the late Mr. Justice Smith ordered a stay of proceedings until the appeal from the order of the Chief Justice could be disposed of. The defendant failed to proceed with the