Street, J. that Morrison was in insolvent circumstances; his credit Judgment. up to this time had been perfectly good; and McDonald swears that he was not aware of his circumstances, and had no reason whatever to doubt his solvency. Under these circumstances, were I to follow the view which I confess I have hitherto entertained of the meaning of sec. 2 of ch. 124, R. S. O.,* I should hold the mortgage to be void as being a transfer having the effect of giving to McDonald a preference over the other creditors of the mortgagor. I conceive, however, that I am bound to decide otherwise by reason of the construction placed upon this and the 3rd sec. of the Act by the unanimous judgment of the Court of Appeal in the late case of Johnson v. Hope, 17 A. R. 10. I might without difficulty distinguish between the facts in that case and those in the present case, but the principle is too broadly and clearly laid down to justify me in treating it as being inapplicable to the facts of the present case; that principle being, as I understand it, that unless notice of the insolvency of the transferor is brought home to the transferee, the transfer is not avoided even though its effect may be to give one creditor a preference over the others. I have no course open, therefore, in the present case but to order that the action be dismissed with costs. *2. Every gift, conveyance, assignment, or transfer, delivery over or payment of goods, chattels, or effects, or of bills, bonds, notes, securities, or of shares, dividends, premiums, or bonus in any bank, company, or corporation, or of any other property, real or personal, made by a person at a time when he is in insolvent circumstances, or is unable to pay his debts in full, or knows that he is on the eve of insolvency, with intent to defeat, delay, or prejudice his creditors, or to give to any one or more of them a preference over his other creditors, or over any one or more of them, or which has such effect, shall, as against them, be utterly void. Statement. [QUEEN'S BENCH DIVISION.] ROSE V. TOWNSHIP OF WEST WAWANOSH ET AL. Municipal corporations—By-law authorizing taking of gravel without specifying lands--Illegality-R. S. O. ch. 184, sec. 550, sub-sec. 8; sec. 338 --Injunction without quashing by-law. By sec. 550, sub-sec. 8, of R. S. O. ch. 184, the council of every township is Held, also, notwithstanding the provisions of sec. 338 of R. S. O. ch. 184, THIS action was tried before STREET, J., without a at the Goderich Assizes on 1st April, 1890. jury, The plaintiff claimed to be owner of the lands in question under the will of his father subject to the life estate of his mother, Isabella Rose. The action was brought against the corporation of the township of West Wawanosh, and certain persons acting under their authority, to restrain them from removing gravel from the land in question. The defendants claimed the right to take the gravel under a by-law of the corporation, of which the following is a copy : "MUNICIPALITY OF WEST WAWANOSH. By-law No. 3, 1889. Whereas power is given by the R. S. O. 1887 ch. 184, sec. 550, sub-sec. 8, to township councils to pass by-laws for searching for and taking such timber, gravel, stone, or other material or materials as may be necessary for mak ing and keeping in repair any road or highway belonging Statement. to or within the municipality. Be it therefore enacted by the council of the corporation of West Wawanosh, and the same is hereby enacted, that the pathmasters and other employees of the corporation of the said township of West Wawanosh be and are hereby authorized and empowered to enter upon any land within the municipality when necessary to do so, save and except orchards, gardens, and pleasure grounds, and search for and take any timber, gravel, stone, or other materials necessary for making and keeping in repair any road or highway in the township of West Wawanosh; and the right to enter upon such land as well as the price or damage to be paid to any person for such timber or materials shall, if not agreed upon by the parties concerned, be settled by arbitration. under the provisions of this Act. Passed this 11th June, 1889." This by-law had not been quashed. R. S. O. ch. 184, sec. 550-The council of every county, township, city, town, and incorporated village may pass by-laws. 8. For searching for and taking such timber, gravel, stone, or other material or materials (within the municipality) as may be necessary for keeping in repair any road or highway within the municipality; and, for the purpose aforesaid, with the consent of the council of an adjoining municipality (by resolution expressed) for searching for and taking gravel within the limits of such adjoining municipality, and the right of entry upon such lands, as well as the price or damage to be paid to any person for such timber or materials shall, if not agreed upon by the parties concerned, be settled by arbitration under the provisions of this Act. (a) But no such gravel shall be taken or removed from the premises of any person in an adjoining municipality until the price or damage has been agreed upon between the parties or settled by arbitration. The case was argued at the conclusion of the evidence. Argument. Garrow, Q.C., for the plaintiff. The by-law is clearly bad: In re Ingersoll and Carroll, 1 O. R. 488. Where the by-law is not within the competence of the council the plaintiff may maintain an action without having it. quashed: Connor v. Middagh, 16 A. R. 356. It is not necessary to quash a by-law to get an injunction, nor even to recover damages in every case. Here there is no bylaw applicable. Sec. 550, sub-sec. M. C. Cameron, for the defendants. 8, of the Municipal Act gives the power which was here exercised. I refer to Stonehouse v. Enniskillen, 32 U. C. R. 562; Harding v. Cardiff, 29 Gr. 308; 2 O. R. 329. Compensation under the Act is the plaintiff's remedy, and where there is a remedy of that kind an action will not lie: Pratt v. Stratford, 14 O. R. 260; 16 A. R. 5; Adams v. Toronto, 12 O. R. 243; Canadian Land, etc., Co. v. Dysart, 9 O. R. 495; 12 A. R. 80. The by-law, not having been quashed, the Court will not interfere by injunction: Carroll v. Perth, 10 Gr. 64; Grier v. St. Vincent, 12 Gr. 330; 13 Gr. 512; Vandecar v. East Oxford, 3 A. R. 131. Sec. 338 of the Municipal Act, R. S. O. ch. 184, shews that no action can be brought till after the by-law has been quashed, and also that one month's notice of action is necessary. I refer to Smith v. Toronto, 11 C. P. 200; Black v. White, 18 U. C. R. 362; Wilson v. Middlesex, 18 U. C. R. 348; Barclay v. Darlington, 5 C. P. 432; Carmichael v. Slater, 9 C. P. 423; Haynes v. Copeland, 18 C. P. 150; Malott v. Mersea, 9 O. R. 611; Dennis v. Hughes, & U. C. R. 444. [Argument was also heard as to the construction of the will of the plaintiff's father.] May 1, 1890. STREET, J.: I am of opinion that in passing a by-law in this form the council have not carried out what was intended by the Legislature by the section referred to in it; if so general a power had been intended it would have been easier for the Legislature to say at once that every path- Judgment. master and other employee of each municipality should Street, J. have the right to enter upon any land whenever he thought it necessary to do so and to search for and take gravel, timber, stone, and other materials. In the present case the defendants without any further preliminary proceeding began to take gravel from the plaintiff's land, and when the owner protested they justified their action by pointing to this by-law. What the Legislature did intend, I think, as I gather its meaning from the section referred to, was that the council should, as necessity arose for their doing so, exercise the right to take gravel from any parcel or parcels of land, having first declared the necessity to exist and chosen and described the land from which the gravel was to be taken, by a by-law. This by-law is therefore, I think, upon ite face illegal, because it purports to confer upon its officers powers much wider and more extensive than the statute authorizes. It was objected on the part of the defendants that even supposing the by-law to be illegal they were protected by sec. 338 of the Municipal Act from any action, because it has not been quashed. It is perhaps true that the plaintiff here might be unable until he had quashed the by-law to recover damages for any thing done under even such a by-law as this; but the damages here claimed are trifling; the substantial relief sought is an injunction to restrain the defendants from proceeding to enforce the rights they claim under this by-law. Sec. 338* does not tie the hands of a person threatened with damage under an illegal R. S. O. ch. 184, sec. 338-In case a by-law, order, or resolution is illegal in whole or in part, and in case any thing has been done under it which, by reason of such illegality, gives any person a right of action, no such action shall be brought until one month has elapsed after the by-law, order, or resolution has been quashed or repealed, nor until one month's notice in writing of the intention to bring the action has been given to the corporation, and every such action sha be brought against the corporation alone, and not against any person acting under the bylaw, order, or resolution. 38-VOL. XIX. O.R. |