No

as landlords under the terms of the agreement of the 4th May, 1900. Notice to quit was served on Lechtzier on the 29th June, 1903, and demand of possession was served upon him on the 15th July following.

The tenant attempted to prove an understanding with S. Aikins, one of the agents of the landlords, by which he should be permitted to remain on the premises until the company should build on the land. It was urged that the tenant had a colour of right to the possession of the premises, and that his right could not be tried on this application.

Held, that the tenant occupied the premises in question under a lease from week to week, that it was duly terminated by the landlord, and that the tenant continued to overhold without colour of right after written demand of possession by the landlord. Order to issue for writ of possession. costs.

If effect were given to the contention set up by Lechtzier that he should not be disturbed until the company should build on the land, he might, in case the company sold the land, or did not build upon it, be entitled to hold it perpetually. It was clear that the company did not authorize or assent to any such arrangement.

Whether there is colour of right or not, and what con; stitutes colour of right, are matters of law to be determined by the Judge: Wright v. Mattison, 59 U. S. R. 50. To constitute a colour of right there must be some bona fide question of right to be tried: Price v. Guinane, 16 O. R. 264. tenant had not shewn any claim which should be construed as a colour of right.

H. A. Robson, for the landlords.
A. J. Andrews, for the tenant.

The

BRITISH COLUMBIA,

In the Supreme Court.

[FULL COURT, 19TH JANUARY, 1903. HUTCHINS v. BRITISH COLUMBIA COPPER CO. County Court-Practice-Setting aside judgment and granting nero ment and granting a new trial on the ground that the verdict

Appeal from an order of LEAMY, CO.J., setting aside judg. of the jury was against the weight of evidence.

trial.

Held, that a County Court Judge has no power to grant a new trial merely because he is dissatisfied with the verdict: he is to be guided in granting a new trial by the same principles as the full Court.

Appeal allowed.
E. P. Davis, K.C., for the appellant.
L. G. McPhillips, K.C., for the respondents.

[FULL COURT, 8TH APRIL, 1903.

MOLEOD v. CROW'S NEST PASS COAL CO.

Practice-Test action-Substitution of another action as test action.

Appeal from an order of WALKEM, J., refusing to substitute another action for an action already ordered to be tried as a test action.

After one of a number of actions brought by different plaintiffs against the same defendants in respect of causes of action which were identical has been ordered to be tried as a test action, the Court has power to substitute another action as a test action.

Twenty-nine actions were brought by different persons against the defendants for damages caused by the death of relatives in an explosion in the defendants' coal mine, and on the plaintiffs' application an order for a test action was made, the order providing that the defendants, if dissatisfied with the result of the test action, might apply to have the other actions proceeded with, and that they might apply to have any of the actions forthwith proceeded with, if there existed any special ground of defence applicable to it, and not raised in the test action. After obtaining the order, the plaintiffs' solicitor discovered that, on account of the particular place in the mine at which McLeod was killed, a separate defence not applicable to the other cases might apply, and an application was made for the substitution of another action as the test action.

Held, reversing the decision of WALKEM, J., who held that there was no jurisdiction to substitute another action, that the object of the order, which was provisional in its nature, was to have a fair test action, and, as the one chosen would not be a fair one, another should be chosen.

Appeal allowed.
S. S. Taylor, K.C., for the appellants.
E. P. Davis, K.C., for the respondents.

{FULL COURT, 4TH NOVEMBER, 1903.

ROSS v. THOMPSON.

Water rights-Decision of Gold Commissioner-Appeal from-Evidence on

-Petition-Trial.

Appeal from decision of FORIN, Co. J., refusing to hear new evidence on an appeal before him under s. 36 of the Water Clauses Consolidation Act, which provides that the appeal should be in the form of a petition setting forth the facts and law relied on, which petition, along with an affidavit verifying it, should be filed and served, and to which the respondents should file and serve their answer.

Held, that the fact that there was to be a petition and an answer contemplated the raising of issues, and that the appeal should be a trial de novo. Appeal allowed with costs. S. S. Taylor, K.C., for the appellant. Charles Wilson, K.C., for the respondent.

[MARTIN, J., 3RD OCTOBER, 1 02

REX v. HAYES.

Criminal law-Grand jury-Constitution of—Criminal Code, s. 656-Jurors Act Amendment Act, 1899, s. 2.

Motion to quash an indictment on the ground that thirteen grand jurors had not been returned, as required by s. of the Jurors' Act Amendment Act, 1899.

A sheriff, when about to summon, pursuant to s. 48 of the Jurors' Act, one of the jurors drafted to serve on a grand jury, ascertained that the juror was demented, and did not

summon him.

12

THE CANADIAN LAW TIMES

ANNUAL DIGEST

OF CANADIAN CASES REPORTED AND

NOTED DURING THE YEAR 1903,

DECIDED IN THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, IN

THE SUPREME AND EXCHEQUER COURTS OF CANADA,

AND IN THE COURTS OF ALL THE PROVINCES,

AND

A BRIEF SUPPLEMENTARY DIGEST OF CASES DECIDED BY THE COURT OF APPEAL AND HIGH COURT OF JUSTICE FOR ONTARIO, DURING THE YEAR 1903, AND REPORTED IN VOLUME II.

OF THE ONTARIO WEEKLY REPORTER,

TOGETHER WITH

TABLE OF THE CASES DIGESTED
(With References also to the Occasional Notes for 1903.)

AND A TABLE OF THE CASES AFFIRMED, FOLLOWED, ETC., IN THE

CASES DIGESTED.

EDITED BY

EDWARD B BROWN, B.A.,

Of Osgoode Hall, Barrister-at-Law.

TORONTO:
THE CARSWELL Co., LIMITED, 30 ADELAIDE STREET East,

1904.

Entered according to Act of the Parliament of Canada, in the year one thousand nine hundred and four, by THE CARSWELL COMPANY, LIMITED, in the Office of the Minister of Agriculture.