completion of the works. Weigall for the plaintiff :---The defendant is the person whom the act intended to pay the money. Section 131 makes it quite clear that the defendant is the owner in default." Sections 131, 145, 146 are to be read together. It is unnecessary in section 145 to expressly state that such sums of money shall be a charge upon the land as it is obviously intended that that should be so; section 146 makes this more clear. Topp in reply cited R v. Clark Exparte Gunst (5 VLR 112) R. v. Swindon (4 QBD 305) Borough of Newton and Chillrell v. Batten (2 V.R. (L) 142. case rested on s. 131 the plaintiff would be concluded by authority The case mentioned in the Chief Clerks' report, that is, R v. Clarke ex parte Gunst, (5 V.L.R 412) shows this clearly. The headingto that case is as follows.-“Public Health Act No, 310 s.s 17, 57, 59.-Expense of lane set out on private property--Service of notice on owner at the time"Recovery of expenses from subsequent owner," and the head note itself is.-"Where works have to be "executed by a Local Board, the expense being "chargeable on private property if the owner at the "time be known and can be found, service of "notice affecting him does not charge the land so HIS HONOR.This matter came before me on the "as to fix with liability to pay the expenses any 11th of September last, having been set down for "person becoming owner after the work has been hearing on exceptions and further directions from "executed by the Board; The decision in that case the Chief Clerk. The action was originally brought "fully bear out the head note, and it would be conto enforce specific performance of an agreement for clusive on the point if it were not contended that the sale of land situate at Clifton Hill, or, in the “s. 145. being a recent enactment controls that decision. alternative, for damages for breach of the same. Mr.Section 145 enacts that where any lands Justice Webb, who heard the case, declared the "or premises are unoccupied and any exparties entitled to specific performance of the agree-penses incurred by any Local Board in respect of ment, and directed an inquiry before the Chief Clerk such land or premises under the provisions of this as to title. The certificate from the Chief Clerk now Act or of any Act repealed by this Act have been comes before the Court on certain exceptions taken unpaid for three years, such Local Board may, in the to the title. The Chief Clerk finds that the plain-name of the municipality, take possession of such tiff's second requisition appears not to have been suffi-land or premises, and may hold the same as against ciently answered, and he certifies that the defendant any person interested therein, and may from time to can make a good title, subject to the discharge, by time grant leases of the same subject to the provispayment of the liability to the Local Board, and that ions hereinafter contained." It will be observed that she could have done so before action brought, but s. 145 deals with a different case to that provided for refused to clear off the encumbrance by such pay-in s. 131. In this latter section the marginal note ment. The question of whether the liability of the defendant to the Local Board is a personal debt or a charge affecting the land turns upon the proper construction to be placed on sections 131. 144, 145, and 146 of 47 Vic., No. 782. If the liability does not affect the land, then it does not affect the title, and the certificate of the Chief Clerk should be amended as sought. Section 131 is a re-enactment of s. 47, No. 310, and contains a power similar to s. 150, 38 and 39 Vic., c. 55. 10 states that in case any street, &c., formed or set out on private property, or in case any lane or passage formed or set out on public property or land of the Crown in such manner as to afford means of back access to, or drainage from property adjacent to such lane or passage is not formed, &c., to the satisfaction of the Local Board, the said Local Board may from time to time, by notice to the respective owners of the premises fronting or adjoining or abutting upon such parts thereof as may require to be formed &c., require them to form &c., the same in such manner as may be approved of by the Board; and if such notice be not complied with, the Board are empowered, should they think fit, to execute the work themselves and to recover the expenses incurred thereby from the owners in default there is no contention as to the fact that the notice required by the section was served on Mrs. Bull and that the actual works were commenced before the contract of sale. The contract for the works was not completed till the end of the year. If the is, "lanes and yards to be paved," and the section provides that the lanes and yards referred to are such as afford means of back access to or drainage from property; further, the expenditure to be incurred is not to be on the property itself, but on the land used as a street, or a lane, and upon the premises fronting, adjoining, or abutting, the owner of which is liable. Now, the marginal note of s. 145 is, "Power to take possession of, and lease property on which expenses are due"; and it provides that the expenses to be incurred by any Local Board shall be in respect of such land. The land or premises referred to must be unoccupied, and the expenditure must be upon the lands or premises. The Legislature gave this power to enable the Local Boards of Health to go in upon such lands when the owner is not known or cannot be found, and fill up holes therein, and remove accumulations of filth thereon, and otherwise suppress nuisances dangerous to health, and recoup themselves the expenditure of leasing the property. Sections 144-5-6 may be considered new legislation, and were designed to meet cases where lands are unoccupied and the owners are unknown It appears to me that the authority of R. v. Clarke upon s. 131 is still the binding authority, and that the liability incurred in the present case was merely a personal liability, and I shall make the order sought for by the summons. I make no order as to costs until I deal with the general costs. Insolvency Statute, 1871, No, 379, Secs. 17, 71, and 37, Sub-sec, 2; Fraudulent Preference; Intent to dejrat and delay creditors; 13 Eliz. c. 5 ; Bona fides. Where a person, who was at the time insolvent, sold certain property to his wife with the intention of preferring certain of his creditors and of defeating the claims of others, of which intention his wife was cognisant. Held, that the transaction was not void under Sec. 71 of the Insolvency Statute 1871, No. 379, which section relates to a conveyance to a creditor; nor, under Section 37, Sub-sec. 2, since such a transaction was not in itself fraudulent ; and that the question of bona fides under 13 Eliz., c. 5 was one of fact for the jury. Appeal from order of the Judge of Insolvency on Friday, Nov. 4, 1887. This was a proceeding under the 17th Section of the Insolvency Statute, 1871, instituted by Sarah Ward, the wife of insolvent, for determining the right of property in certain goods and chattels attached by the assignee. On the 30th July, 1887, Ward was hopelessly insolvent, and pressed by his creditors. The insolvent's wife resided with him and assisted him in his trade, and at that time had separate estate over the value of £75. Immediately prior to the 30th July, according to the evidence of insolvent and his wife, he asked her to lend him money, which she declined to do without security, He then proposed to her that she should buy his business and stock, for which she agreed to give £75 by an instrument in writing. This money she paid by three promissory notes (not arrived at maturity), with which the insolvent paid all his creditors, except the three appearing in his schedule, one of whom he had stated he would not pay. Immediately after the sale, according to the evidence of insolvent and his wife, possession of the whole stock-in-trade was given to the wife, the insolvent's name was taken off the front of the shop, and insolvent went out as a commercial traveller, leaving her in possession, and not returning for some time; but the learned judge found that no substantial change in their mode of life occurred. The learned judge also found that the insolvents object and intent was to defeat and delay some of his creditors, and give a preference to others; that the wife was aware of this intent, and had notice of and participated in the Act of Insolvency, Pennell v. Reynolds C.B.N.S.709; and Cohen v. M'Gee 4, V.L.R. 545; that, consequently, the sale was void under Sec. 71, and also under Sec. 37, Sub-sec. 2; and that since the sale was secret, and there was nothing until the husband's name was taken down to show the change of ownership, that the sale was also void under 13 Eliz. c. 5, and then "dered that the trustees | 29th Sept, 1888 should retain the goods, and that Sarah Ward should pay costs. From this order Sarah Ward appealed. II. S. COLE (for the appellant).-Under 13 Eliz. c. 5, preference is allowed, provided the grantor obtains no benefit. Holbird c. Anderson, 5 T.R. 255 : Eastwick v Calland, 5 T.R. 420; Goss v. Neale, 5 Moore 19; Wood y. Dixie, 7 Q.B. 892; re Jack, 11 V.L.R. 741. Here all the money was handed over to the creditors. A conveyance is bona fide when "it is not a mere cloak for the benefit of the grantor." Alton v. Harrison, L.R. 4 Ch. Ap. 626, Sec. 71 of the Insolvency Statute only refers to assignments to creditors with the object of benefitting that creditor, here the assignment is to his wife. Sinclair v. Wilson 20 Bear. 524: Exp. Stubbins in re Wilkinson 17 Ch D. 69. The words in Sec. 37, Sub-sec. 2, mean a fraudulent conveyance with intent to defeat and delay creditors. Hasker and Morehead, 2 V.L.R. (d) 160. | WOOLF (for the trustee, respondent). The facts show this transaction was merely a juggle between She was husband and wife to defeat creditors. aware of his intentions, and the assignment is void under 13 Eliz. c. 5. Cur, ade, rult. HIGINBOTHAM, C. J. We think the learned judge was wrong in resting his decision on sec. 71 or sec. 37, subsee. 2 of the Insolvency Statute. Sec. 71 made void certain transfers of property made by an insolvent which, but for the circumstances in which they were made, or the object for which they were made were open to no objection. Amongst others it affected transfers of property made with a view of giving a creditor preference over other creditors. The transaction in this case was not and would not be considered as having been a transfer with a view of giving a creditor preference over another creditor. The transaction was one between the insolvent and his wife, and although he might have had the intention of preferring a particular creditor, and his wife might have been aware of it those facts did not make this transaction void under sec. 71 or under sec. 37 which made void transfers with intent to defeat and delay creditors. This is clearly shown by the judgment in Exp. Stubbins in re Wilkinson L.R. 17, Ch. D, 68. It was then pressed on the court that the sale was itself a fraudulent transfer, that is, that the transfer of goods to a purchaser for value with a view of using the purchase money for a voluntary preference, the purchaser knowing of this intention fraudulent conveyance or transfer within the meaning of the Act. James, L. J. said, "It appears to me that this view cannot be sustained. In truth a mere voluntary transfer impeachable only on the ground that it is a preference of a particular creditor, has never been held to be in itself a fraud or an act of bankruptcy. It may be impeached on the ground that it is voluntary, but it is impossible as it appears to me to hold that a mere voluntary transfer is of itself an act of fraud; and if that is not fraudulent within any principle of law, it would be equally impossible to say that a sale becomes fraudulent because there is an intention in the mind of the vendor to use the was a purchase money for the purpose of making a volun- Solicitors for the appellant, W. II. Lewis for the respondent, Lyons and Turner. SITTINGS IN BANCO. 4th and 5th Sept. Before Higinbotham C..J., Williams, Holroyd, J.J. IN THE MATTER OF THE VICTORIAN TROTTING CLUB Ecidence (Bye-laws) Statute 1876, Act No. 521, ss 2, 8; The operation of s 2 is confined to the method of proving bye-laws; 8 8 provides a means of testing their legality which may be utilised by any member of the public. Rule Nisi under se tion 8 of the Evidence (Byelaws) Act 1876.” No. 521 obtained by Henry Coleman calling upon the Victorian Trotting Club Ld. to show cause why a certain bye-law purporting to be made under the Articles of Association of the Company should not be quashed on the ground of being illegal and ultra vires. The bye-law was in the following terms : viz.-- No person shall after the first day of February, ISSS, carry on the business of a bookmaker within the grand-stand reserve or saddling paddock at Elsternwick-park before and until he shall have complied with the following conditions, 1. That he be registered by the V.R.C. and approved of by the committee of the Victorian Trotting Club. 2. That he pay to the committee of the said club, in advance, an annual fee of £5 5s, 3. That during the time he shall be in or upon the said lands as specified as aforesaid he shall wear a ticket to he supplied by the committee of the said club, which ticket shall be visible to the public, and shall have written thereon his name and address. Any person offending against this bye-law shall be removed from all land or lands vested in the club. By the affidavit of the relator it appeared that the land used by the Victorian Trotting Club for holding race meetings thereon formed portion of a large area which had in pursuance of the Land Act 1869 Teen permanently reserved as a site for a public park and recreation ground. On the 22nd Sept. 1880, the lard was granted by the Crown to the Board of Land and Works and to the Corporation of Brighton for certain purposes viz. to provide a park and ground at Elsternwick for public recreation &c., and by the same grant the grantees were empowered to grant leases from time to time for similar By a lease executed in pursuance of the above mentioned power and dated the 29th Sept. 1881 the land was leased to James Alfred Roberts, Phillip Garnet Dixon and Frederick Charles Goyder who subsequently executed a declaration of trust to the effect that they held the lease as trustees for the Victorian Trotting Club Ld. It further appeared that the Club had been registered as a Company under the Companies' Statute 1864" and has made the bye-law in question (inter alia) under its Articles of Association. purposes. Hood (with him Higgins) to show cause:—' The rule calls on the Victorian Trotting Club to show cause why the bye-law should not be quashed. It has been obtained under section 8 of Act No. 521. See. 2, provides that a written or printed copy of any byelaws shall be evidence until the contrary is proved, of the due making &c. of such bye-laws. Therefore the only question is whether the bye-law has been properly made. But it will be attempted, on the other side, to go beyond this question and to impugn the validity of the leases. (Hodges (by permission of the court). It will shorten matters if the arguments intended to be relied on in support of the rule be stated. A Crown grant of land has been executed in favor of the Corporation of Brighton; the Corporation has leased the land to certain persons who have made a declaration of tru-t in favor of the Victorian Trotting Club: the latter has made the bye-law complained of. It will be contended, that, under the lease, the club has no power to make the bye-law; if power is given for that purpose by the lease the lease is void. Further, the Crown grant is bad, if it gives power to make such a bye-law.) The Hodges (with him Topp), in support of the rule, were not called upon | possessed by the corporation, But section 8 gave further and distinct power to any person to test the validity of any bye-law on the ground that it was wholly or in part illegal - that was to say, not that there had not been a compliance with the conditions necessary for making the bye-law, but that it was for any reason.contrary to law or beyond the powers of the body that had made it. Therefore the relator, or the person applying, in this case under this section was entitled to show that this bye-law was beyond The relator has selected a wrong procedure. He the powers of the company by which or on whose should have brought an action for trespass if he behalf it was made. The bye-law was made under the wished to impugn the validity of the lease. If the articles of association of the Victorian Trotting Club. Crown grant has been broken he might have proceeded | That club was the beneficis holder of the land that by scire facias to have it repealed. He cannot, on the had been leased by the Board of Land and Works and present application, attack e'therone or the other. After the corporation of Brighton to lessees named in a lease the lease is executed, there is no right existing in any issued by those bodies. It was unnecessary to consider of the public to enter upon the land. Higinbotham, the question whether the Board of Land and Works C.J. Can the lessors derogate from the rights of the and the corporation of Brighton had power legally to public?] The public are not in privity with the make the lease which was now relied upon by the parties to the lease, and the lessees are entitled to company. They expressed no opinion on that point, make such by-laws for the management of the land as it was unnecessary to do so as the bye-law was of which they are in possession as they may think inconsistent with it and beyond the power of the suitable. The terms " illegality" in the 8th section Trotting Club to make under the terms of the lease, means illegality as regards the general law. That bye-law was one which forbade persons carrying United, &c., Co. 7. Koh-i-noor dc. Co., XXXX on the business of a bookmaker to come within the 3WW& AB (M) 63 Bolger v. Blackwood and others, grand stand reserve or saddling paddock at Elstern(unreported) and In re Empress Engineering Compy, wick-park before he complied with certain conditions. -16 Ch. D. 125 were cited. First he was to be registered by another company, and approved by the committee of the Trotting Club; secondly, he was to pay to the committee of the club an annual fee of £5 5s; thirdly, while he was on the land he was to wear a ticket to be supplied by the committee of the club, which ticket was to be visible to the public, and was to have written thereon his name and address. The bye law went on to provide that any person offending against it should be removed from all land or lands vested in the club. The lease to the club purported to guard to some extent, the rights of the public to use the land in accordance with the terms of the Crown grant. It conferred certain powers on the lessees upon certain conditions to be performed by the lessees of expending money in the improvement of the land. It also conferred upon the lessees certain rights to take rates of payment from the public on certain occasions. But it also protected the rights of the public by the condition that at all other times than the holding of race meetings the public shall be allowed free ingress, egress, and regress to, from, and over the land thereby leased, except such part or parts thereof as shall, with the consent in writing of the lessors, be excepted for reserves or plantations, building purposes, or otherwise. It did not appear that the consent in writing of the lessors to except any part of the land had been given. It was clear that the lessees had no power under their lease to exclude the public from any portion of the land except in accordance with the limitations imposed by the lease. It did not appear that the consent in writing to the exclusion of the public from any part had been given. The bye-law asserted the right of the club to exclude a particular HIGINBOTHAM, C. J.-A preliminary objection has been taken in this case, namely, that the facts do not bring it within the provisions of section 8 of the Evidence (Bye-laws) Act No. 521. That section enacted that "any person who shall pay into the Supreme Court the sum of £15 as security for the costs of the proceedings hereinafter mentioned may apply to the said Court for a rule calling upon the corporation by or on whose behalf any bye law shall have been made to show cause why such bye law should not be quashed, either wholly or in part, for the illegality thereof, and the said Court may make such rule absolute or discharge the same with or without costs as to the said Court shall seem meet." The bye law in this case has been made on behalf of the company called the Victorian Trotting Club Limited--a company formed under the Companies Statute 1864. By the 2nd section of the Bye laws Evidence Act No. 521, this bye-law might be proved in evidence prima facie on the production of a written or printed copy of it, with a certificate in the form given in a schedule, that the matter above written or printed was a true copy of the bye-law, and that the person giving the certificate had informed themselves of the legislative requirements necessary to giving validity to such bye-law and as to their observance, and that they believed that such requirements had been fufillled. These legislative requirements pointed to the taking of those steps which were necessary to give effect to the bye law that might be made, and which might be valid if it were under the powers section of the public whose business was not illegal, and whose presence at any part of the ground was not shown to be a nuisance, and claimed to remove them from all the land vested in the club. On that ground alone the bye-law was clearly ultra cires on the part of the body on whose behalf it was made. That was all that was necessary to say for the determination of this case, and it was unnecessary to consider the further question whether the trustees under the Crown grant had power to issue a lease such as the respondents in this case had relied upon. The rule to quash the bye-law must be made absolute with costs. WILLIAMS, J.-I concur. I had no doubt of the case from the outset. In reference to the provisions of section 2 and section 8 of the bye-laws evidence Act No. 521, those sections were passed with totally different objects, and for totally different purposes. Section 2 related exclusively to the proof of bye-laws ---how they might be proved. Section 8 provided the means for testing the illegality of any bye-law, and had nothing to do with the proof of the bye-law. Section 8 was framed on the widest terms. It said that any person who chose to pay £15 into court might apply to the Court for a rule, calling upon the corporation by or on whose behalf any bye-law shall have been made to show cause why such bye-law should not be quashed, either wholly or in part, for the illegality thereof. I think this case came within the terms of section 8, which covered more ground than section 2 did. I use the same section to meet another argument that it was only the persons interested in the land that could attack the bye-law. The section met that argument in full front. It said that any person, any member of the public, who chose to indulge the luxury of applying to have a bye-law quashed might move to have it quashed on giving security to the amount of £15. That took it outside the authority of a case in L.R., 16 Ch. D., which had been relied upon for the respondents. There was an act of Parliament here that said it could be done by any one who chose to give the security. As to the main point, he would assume that the lease was valid, and that the lessors had power to execute a lease of the description that they had executed—although he had very grave doubts whether they had the power. But, assuming that there was power to issue the lease, it gave no power to make this bye-law. The lease enjoined the lessees to admit the public to this place for purposes of recreation, and it enabled the lessees to make certain specific charges upon the public one shilling per head for the major part of the land, and 10s. 6d. per head for certain specified reserves. These were the only charges that were authorised by the lease to be made; and apart from that, it enjoined the lessees to admit the public. The lessees were authorised to make these specific charges, and no other. And if in any case the maxim of expressio unius exclusio alterius applied, it was to leases of this description. There was no power in the lease to make any other charges on the public for going on the ground for purposes of recreation than those specified in the lease. For these reasons I am of opinion that the bye-law is illegal. HOLROYD, J.--I concur. Section 2 of the By-laws Evidence Act, No 521, the production of a written or printed copy of a bye-law was made prima facie evidence of the due making and of the existence of a bye-law. That was to say, it was prima facie evidence that the formalities to the legal existence of the bye-law had been complied with. On the other hand section 8 provided means for testing the legality or illegality of the bye-law, and quashing it if it was illegal. The object of that section was not to ascertain whether the formalities which were requisite for the legal existence of the bye-law had been complied with, but to ascertain whether the contents of the bye-law were legal or not, and it provided a convenient and easy means of ascertaining that fact. It was argued that in the case of a company registered under the Companies' Statute 1864, this method could only be adopted to ascertain whether the articles of association were legal or not. The first section of the Act, No. 521, provided that the word "bye-laws" shall include articles of association. There was no doubt that the method provided by section 8 could be used to ascertain whether articles of association were valid or not. But the bye-law, or by whatever name it might be called, which was objected to, and was said to be illegal, did not depend in any degree upon the articles of association. Although there might be · power in the articles of association to make a by-law of this description, the legality of the by-law was not to be decided by the existence or the non-existence of that power at all. What the managers or directors of this corporation had done on behalf of the corporation was to make a by-law by which they purported to regulate a public recreation ground and and deal with the admission or exclusion of the public from it. But they could only make that by-law if the power had been given to them by the lease under which they claimed, and they could only make it on the assumption that the lease to them was itself lawful. I will assume that the lease was lawful, and would look to the lease itself to see what were the powers conferred on this corporation There was no power whatever conferred by the lease upon the corporation to prevent any body from carrying on any business which was usually carried on on a racecourse. There was an affidavit on behalf of the corporation, in which it was asserted that this business of bookmaking was a business usually carried on on a racecourse, it being thus admitted that it was usually carried on on a racecourse, then this corporation could not prevent people from lawfully carrying it on, and still less could it permit people to carry it on on payment of a fee. The corporation had no right to make any charges on the public except those that they were expressly authorised to impose by the terms of the lease. If the powers contained in the lease were contained in the Crown grant itself the corporation could not go beyond these powers, because there was an intermediate document which could not alter the |