the sanction of a by-law, unless the work is obligatory repair, the doing of which would give persons injuriously affected no right to compensation, plaintiff must recover whatever damages (if any) he may be entitled to by pursuing the remedy prescribed by the legislature: Pratt v. City of Stratford, 16 A. R. 5.

But, while I may not in this action assess damages, present or prospective, so as to bind the parties, it may be that an expression of my opinion upon the evidence before me will be of use to them. It may aid them to arrive at a settlement, thus obviating the necessity of an arbitration under the statute, should means be found of proceeding with the work on Crawford avenue in a manner satisfactory to all persons interested.

I would, if acting as arbitrator, assess the damages under sec. 437 of the Municipal Act in respect of plaintiff's lot on the north-east corner of London street and Crawford avenue at $650. . . . I would, under sec. 437, assess plaintiff's net damages in respect of the west side lot at $275.

MACMAHON, J.

TRIAL.

JUNE 30TH, 1905.

STEWART v. ROGERS.

Way-Passage-way between Houses-Easement - Prescription -Leave and License-Fences-Boundary-Injunction Costs.

Action for a mandatory order directing defendant to take down and remove the fence on a lane or passage-way between the properties of plaintiff and defendant in the town of St. Mary's, and for an injunction restraining defendant from interfering with plaintiff's free right to use the passage-way for the purpose of ingress and egress to and from the rear of his premises.

G. G. McPherson, K.C., for plaintiff.

J. C. Makins, Stratford, and J. W. Graham, St. Mary's, for defendant.

MACMAHON, J.:-Plaintiff is the owner of the south half of lot 3 on the west side of James street in St. Mary's, which he purchased from Henry Whitworth in December, 1900, and on which is erected a dwelling in which he is living. Defendant is the owner of the north half of lot 3. As originally laid out, the lot was supposed to have a frontage on James street of 50 feet.

Mr. McEvoy, a surveyor, was employed to make a survey of lot 3, and he furnished to each a plan of the property, and, according to his survey, the frontage of the lot on James street is 50 feet and 7 inches, and, dividing the lot between the owners of the south and north halves, and giving to each a frontage on James street of 25 feet 3 inches, the north line of plaintiff's lot would be only 10 inches from the north side of his house, and would leave a passage-way between it and defendant's house of 8 feet, and it is over that passage-way that plaintiff claims an easement. Each house is 7 feet from the street line, and until 2 years ago there was a fence running from the fence on the street line to the corner of each house.

Henry Whitworth bought the south half of the lot in 1882, but never lived thereon himself, it being occupied by tenants. He stated that when he purchased there were gates across the so-called passage-way between the 2 houses, which he said were generally open, and the passage-way was used by his tenants.

Defendant bought the north half of the lot in January, 1887, and has lived there ever since, and says that across the passage-way there were two gates placed by his predecessor in title.

At the time defendant purchased and went into possession of the house on the north half, George Ogilvie was the tenant under Whitworth of the south half; and I find that defendant pointed out to Ogilvie where the line between the two halves of the lot was, when Ogilvie said, "If you close your gates, I shall have no way of getting in or out except through my house," and defendant promised that so long as Ogilvie lived there and behaved himself he would permit him to use the passage-way.

I find that the user of the passage-way by Ogilvie was— after defendant entered into possession of the north-half of the lot-by the leave and license of defendant

This piece of land forming the passage-way was part of the lot purchased by defendant, and he kept up and maintained the gates there for the purpose of enclosing part of his land, and he, as the owner thereof, closed the gates every night since 1887; and no prescriptive right was created for the use of this passage-way by plaintiff or his predecessors in title to the south half of lot 3.

A fence was erected many years ago from the rear of what was then supposed to be the line between the north and south halves of the lots and running east a distance of 46 feet 8 inches to a point opposite the west end of plaintiff's house, where it ended. Six years ago defendant renewed the whole fence up to the corner of plaintiff's house where the old fence had ended. The old fence was about 2 inches south of the true line, and when the new fence was built . . . it occupied the position formerly occupied by the old one. In 1905 defendant continued the fence from where it ended at the west corner of plaintiff's house to the street line of James street-a distance of 53 feet 8 inches. That piece of new fence is 2 inches on plaintiff's land.

The evidence shews that the old fence from the western limits of the lot running the 46 feet 8 inches, had been the acknowledged dividing line of the north and south halves of the lot for that distance by the predecessors in title of both plaintiff and defendant, and at least prior to the time when Whitworth purchased the south half in 1882.

Plaintiff's claim to have removed the fence which was built by defendant from the westerly boundary of the lot to where it ended opposite the west corner of plaintiff's house, must be dismissed.

As to the new fence built by defendant, above described, from opposite the corner of plaintiff's house to the street line, there must be judgment for plaintiff directing defendant to remove it 2 inches south from its present position, unless plaintiff agrees to its remaining as it is, on defendant agreeing to forego his claim to one-half the cost of the erection of the fence, for which plantiff would be liable.

Plaintiff will have a month in which to elect. If he elects to require defendant to remove that portion of the fence, the judgment in his favour will be without prejudice to any

claim which defendant may have to recover in a separate action one-half of the cost of that portion of the line fence. Plaintiff must pay to defendant the costs of the action.

DIVISIONAL COURT.

JUNE 8TH, 1905.

BAXTER v. FAULKNER.

Writ of Summons-Service out of Jurisdiction-Cause of Action-Contract-Breach-Discretion-Forum non Con

veniens.

Appeal by defendant from order of FALCONBridge, C.J., in Chambers, dated 18th April, 1905, dismissing appeal by defendant from order of Master in Chambers dated 6th March, 1905, dismissing motion by defendant to set aside the writ of summons and service on defendant out of the jurisdiction, upon plaintiff undertaking to prove at the trial that the Court had jurisdiction to entertain plaintiff's cause of action, and granting leave to defendant to enter a conditional appearance.

Plaintiff's claim indorsed on the writ of summons was to recover the amount of a money demand in respect of insurance premiums paid to defendant, by plaintiff's assignors pursuant to agreement, and alleged to have been misappropriated by defendant.

The affidavit upon which leave to issue the writ for service out of the jurisdiction was granted stated that defendant had assets within the jurisdiction to the amount of $200 at least.

Defendant supported the application to set aside the writ and service by an affidavit in which he stated that he lived in British Columbia and that any moneys received by hm from plaintiff's assignors were received there, and the breach of contract, if any, occurred there, and that he had no assets in Ontario.

H. J. Scott, K.C., for defendant.

Grayson Smith and A. Hall, for plaintiff.

The judgment of the Court (MEREDITH, C.J., BRITTON, J., TEETZEL, J.), was delivered by

MEREDITH, C.J.:-We think this appeal must be allowed. The result of the English cases, I think, is, no doubt they are not all easily reconciled,-that in order to justify the allowance under the English Rules of service out of the jurisdiction, the Court must ascertain from the contract that the intention of the parties was that what is alleged to be the act or omission constituting the alleged breach of it was to be performed within the jurisdiction. That is the test. It does not depend simply upon the principle that according to English law the debtor must seek out his creditor to pay him.

It may be that if were were in this case no circumstances to displace that rule, it might be proper to hold that the contract was to be performed in Ontario; but it seems to me that upon the facts of this case the proper conclusion is that it was not the intention of the parties that the money which the defendant might receive should be paid by him to the assignors of the plaintiff in Ontario; that the intention must have been either that it should be disbursed by the agent in British Columbia or that his duty would be fulfilled if any balance remained when he remitted it from that province to Ontario. That would be sufficient to dispose of this case. adversely to plaintiff; but I think it is quite clear that there is always a discretion in the Court as to allowing service, even if the case is one which technically comes within the Rule.

It would be, I think, most unfair-this defendant being the agent of the plaintiff in British Columbia-that he should be compelled to come here and litigate in this province the question in issue between him and his principal. It is much more reasonable that the parties should go to British Columbia, where the transactions in question took place, and the evidence is to be found, and have the matter litigated there. But it is said that the learned Chief Justice has required the plaintiff to undertake that his action shall be dismissed unless he proves a breach of the contract within Ontario. If it is a doubtful case, that is (if I may say so) a convenient course to be taken, although some Judges have expressed the opinion that the defendant is entitled to have the judgment of the Court on the question of jurisdiction on such a motion as was made in this case, instead of being dragged