K. B. made an agreement with T. for the purchase of the output of his saw mill during the season of 1896, a memorandum being executed between them to the effect that T. sold and K. B. purchased all the lumber that he should saw at his mill during the season, delivered at Hadlow wharf, at Levis; that the purchasers should have the right to refuse all lumber rejected by their culler; that the lumber delivered, culled, and piled on the wharf should be paid for at prices stated; that the seller should pay the purchasers $1.50 per hundred deals, Quebec standard, to meet the cost of unloading cars, classification, and piling on the wharf; that the seller should manufacture the lumber according to specifications furnished by the purchasers; that the purchasers should make payments in cash once a month for the lumber delivered, less two and a half per cent.; that the purchasers should advance money upon the sale of the lumber on condition that the seller should, at the option of the purchasers, furnish collateral security on his property, including the mill and machinery belonging to him, and obtain a promissory note from his wife for the amount of each cullage, the advances being made on the culler's certificates showing receipts of logs not exceeding $25 per hundred logs of fourteen inches standard; that all logs paid for by the purchasers should be their property, and should be stamped with their name; and that all advances should bear interest at the rate of seven per cent. Before the river drive commenced, the logs were culled and received on behalf of the purchasers, and stamped with their usual mark, and they paid for them a total sum averaging $32.33 per hundred. Some of the logs also bore the seller's mark, and a small quantity, which were buried in snow and ice, were not stamped, but were received on behalf of the purchasers along with the others. The logs were then allowed to remain in the actual possession of the seller. During the season a writ of execution issued against the seller, under which all movable property in his possession was seized, including a quantity of the logs in question on the drive and at the mill, and also a quantity of lumber into which part of the logs in question had been manufactured at the seller's mill.

Held, TASCHEREAU, J., expressing no opinion, that the contract so made between the parties constituted a sale of

the logs, and, as a necessary consequence, of the deals and boards into which part of them had been manufactured.

Judgment of the Court below reversed.

Fitzpatrick, Q.C., S.-G., and L. Taschereau, Q.C., for the appellants.

Belcourt and Letellier, for the respondent.

CADIEUX v. MONTREAL GAS CO.

Contract-Notice to cancel-Gas supply shut off for non-payment of gas bill on other premises-Powers of gas company-12 V. c. 182.

An agreement to furnish gas contained an express provision that" either of the contracting parties shall have the right to cancel this contract by giving twenty-four hours' notice in writing." Notices were sent in writing to the consumer that his gas would be shut off at a certain number on a street named, unless he paid arrears of gas bills due upon another property.

Held, that such notices could not be considered as notices given under the contract for the purpose of cancelling it.

The Act to amend the Act incorporating the New City Gas Company of Montreal and to extend its powers, 12 V. c. 182, provides:

"That if any person or persons, company or companies, or body corporate, supplied with gas by the company, shall neglect to pay any rate, rent, or chargé due to the New City Gas Company, at any of the times fixed for the payment thereof, it shall be lawful for the company or any person acting under their authority, on giving twenty-four hours' previous notice, to stop the gas from entering the premises, service pipes, or lamps of any such person, company, or body, by cutting off the service pipe or pipes, or by such other means as the said company shall see fit, and to recover the said rent or charge due up to such time, together with the expenses of cutting off the gas, in any competent Court, notwithstanding any contract to furnish for a longer time, and in all cases where it shall be lawful for the said company to cut off and take away the supply of gas from

any house, building, or premises, under the provisions of this Act, it shall be lawful for the company, their agents and workmen, upon giving twenty-four hours' previous notice to the occupier or person in charge, to enter into any such house, building, or premises between the hours of nine o'clock in the forenoon and four in the afternoon, making as little disturbance and inconvenience as possible, and to remove, take, and carry away any pipe, meter, cock, branch, lamp, fittings, or apparatus, the property of and belonging to the said company."

Held, TASCHEREAU, J., dissenting, that the powers given by the clause quoted were exorbitant, and must be construed strictly; that the company had not been thereby vested with power to shut off gas from all the buildings and premises of the same proprietor or occupant, when in default for the payment of bills for gas consumed in one of them only; and that the provision that the notice to cut off must be given "to the occupier or person in charge" indicated that only premises so occupied and in default should suffer. Judgment of the Court below reversed.

St. Jean, for the appellant.

Brosseau, for the respondents.

NOVA SCOTIA.]

MULCAHEY v. ARCHIBALD.

Bankruptcy and insolvency-Transfer of property-Delaying or defeating

creditors-13 Eliz. c. 5.

A transfer of property to a creditor for valuable consideration, to prevent its being seized under execution at the suit of another creditor, and with intent to delay the latter in his remedies, or defeat him altogether, is not void under 13 Eliz. c. 5, if the transfer is made to secure an existing debt, and the transferee does not, either directly or indirectly, make himself an instrument for the purpose of subsequently benefiting the transferor.

Judgment of the Court below reversed.

Harris, Q.C., for the appellants.

McInnes, for the respondent.

ONTARIO.

Supreme Court of Judicature.

HIGH COURT OF JUSTICE.

[FALCONBRIDGE, J., STREET, J., 20TH JULY, 1898. In re MATHIEU.

Parent and child-Custody of infant-Rights of father-Discretion of Court.

Where a husband has done no wrong and is able and willing to support his wife and child, the Court will not take away from him the custody of his infant child, merely because the wife prefers to live away from him, and because it thinks that living with the father apart from the mother would be less beneficial to the infant than living with the mother apart from the father. It must be the aim of the Court not to lay down a rule which will encourage the separation of parents who ought to live together and jointly take care of their children. The discretion given to the Court over the custody of infants, by R. S. O. c. 168, s. 1, is to be exercised as a shield for the wife, where a shield is required against a husband with whom she cannot properly be required to live; it is not to be exercised as a weapon put into the hands of a wife with which she may compel an unoffending husband to live where she sees fit.

In re Agar Ellis, 10 Ch. D. 71, and In re Newton, [1896] 1 Ch. 740, specially referred to.

And where a wife, without any other reason than that she was tired of living in the country to which her husband had taken her, left him and returned to her mother's house, taking with her their daughter, aged five years, the Court made an order giving the custody of the child to the father, and allowing the mother access at reasonable times.

F. C. Cooke, for the father.

A. D. Crooks, for the mother.

[25TH JULY, 1898.

JUSTIN v. GOODISON.

Surrogate Courts-Removal of cause into High Court-Appeal from order made before removal.

Immediately upon the making of an order removing a cause or matter from a Surrogate Court into the High Court under s. 34 of the Surrogate Courts Act, R. S. O. c. 59, such cause or matter becomes an action in the High Court and ceases to be a cause or matter in the Surrogate Court; and therefore an appeal under s.36 of the Act from an order made in the Surrogate Court, before the removal, cannot be entertained if launched after the removal. The practice to be followed is the practice prescribed in High Court proceedings.

Harris v. Judge, [1892] 2 Q. B. 565, Duke v. Davis, [1893] 2 Q. B. 107, and Doll v. Howard, 11 Man. L. R. 21, followed.

Justin, for the plaintiffs.

R. U. McPherson, for the defendant.

[30TH JULY, 1898.

DONALDSON v. WHERRY.

County Court-Order in term-Reversal of verdict-Jurisdiction-Rule 615 -Appeal to High Court-R.S.O. c. 55, s. 51—Landlord and tenant-Cotenants-Release of one-Agreement-Consideration-Principal and surety Discharge of principal-Effect on surety-Reservation of remedies.

In a County Court action tried with a jury, a verdict was found for the defendant and judgment in his favour ordered by the trial Judge. Upon motion by the plaintiff to set aside the verdict and judgment and to enter judgment for the plaintiff or for a new trial, the County Court, in term, made anorder setting aside the verdict and judgment and ordering judgment to be entered for the plaintiff.

Held, that, under the provisions of s. 51 of the County Courts Act, R. S. O. c. 55, an appeal lay by the defendant