Garson v. Canadian Credit Men's Trust Assn. Ltd.

J.-The appellants applied to me, on the 27th of April, 1928, for leave to appeal from the judgment .N of the Supreme Court of Nova Scotia in banco of the 31st of March, 1928, dismissing their appeal from the judgment of Mr. Justice Carroll on a case stated by the parties. Migit J.

The appellants had purchased for $1,600, which they paid, the stock-in-trade of one Crouse at a bulk sale, the requirements of the Nova Scotia: Bulk Sales Act (c. 202, R.S.N.S., 1923) not having been complied with. They afterwards sold the goods thus purchased for $2,000, which proceeds were not ear-marked and were disposed of by them in the usual course of business. The questions at issue are whether the bulk sale was fraudulent and utterly void under the Bulk Sales Act, and whether the trustee in bankruptcy could recover from these appellants the sum of $2,000, being an amount equal to the amount realized on the re-sale of the said stock-in-trade.

Both courts answered these questions adversely to the appellants, the court in banco, as to the second question, basing its judgment on sections 29, subs. 1, and 33 of the Bankruptcy Act.

(These numbers are those of the office consolidation of the Act; the sections are now numbered 60 and 66 in chapter 11, R.S.C., 1927).

Among other questions, the meaning of the word " settlements " in section 29 (now section 60 of the Bankruptcy Act) appears to be here involved, the point being whether this word should receive the same construction as that given to it under the English Bankruptcy Act (4 & 5 Geo. 5, c. 59, s. 42, 1914).

See In re Plummer (1), and other decisions noted in Duncan's treatise on Bankruptcy, p. 329, note 1.

I think that the questions involved in this case are of sufficient importance to justify me in granting special leave to the appellants to appeal to this court. I therefore give them this leave. Whether there should be a stay of proceedings pending the appeal is however a matter left to my discretion, and, in view of all the circumstances of the case and of the fact that the sum involved, if it can be claimed by the trustee, represents by far the greater part of the assets of the bankrupt estate, I would make the stay of proceedings conditional upon the appellants giving, within fifteen days from this date, or such other time which a judge of this court may on proper cause being c vshown grant to the appellants, proper security to the satis- ' faction of the registrar that they will pay the amount which has been adjudged against them, in the event of the appeal nat J. to this court being dismissed. Otherwise, stay of proceedings shall be refused.

As to security for the costs of the appeal to this court, the provisions of subs. 4 of s. 174 of the Bankruptcy Act (R.S.C., 1927) shall govern. Costs of this application to be costs in the cause.

Application granted. KIVENKO v. YAGOD

APPEAL from the decision of the Court of King's Bench, appeal side, province of Quebec (1), affirming the judgment of the Superior Court, at Montreal, Bond J., and maintaining a writ of habeas corpus issued at the demand of the respondent for the possession and custody of his minor child.

The respondent seeks, by means of a writ of habeas corpus, to recover from the appellant the custody and possession of his minor child, a little girl about six years of age. The child was born in December, 1921, and her mother died in Toronto, where she had gone for medical treatment, on the 1st April, 1922. At the time of the death of the mother the child was with her, and the respondent, who was then residing in Montreal, went to Toronto and brought the child back. 'Together they lived with the appellant who is an uncle of the respondent, until the latter, in October, 1923, married a second time. At the time of his wife's death, and for some time thereafter, the respondent was in poor financial circumstances, and the appellant and his wife were anxious to take care of the child for him as they had become very much attached to her. Partly through the intervention of Rabbi Cohen, of Montreal, an agreement was ultimately drawn up regarding the child, and it is principally on the strength of this agreement that the appellant contests the present petition. In his return to the writ, the appellant asserts a right to the custody of the child on the ground that it was entrusted to him and his wife when the child was only twelve weeks' old; that the child was so entrusted to him by the mother and father of the child; and the last words of her mother before she died were to the effect that the child was to remain with the appellant and his wife who were to bring her up and keep her in their custody. He further alleges that in the year 1923, before Rabbi Cohen, the parties hereto agreed in writing that the child was to remain forever in the custody of the appellant under certain conditions, which the appellant has always fulfilled.

In his petition for a writ of habeas corpus the respondent alleges the relationship, and asserts his right to the possession and custody of his child. It is admitted that the respondent is the father of the child, and it is common ground that unless he has surrendered his rights or forfeited the same, he is entitled to the custody.

The Superior Court maintained the writ of habeas corpus, holding that the right of a father to the custody of his minor child was absolute and that, upon the evidence, this right had not been destroyed or obliterated by the father's conduct, character, mode of life, temperament or circumstances. That judgment was affirmed by the appellate court.