RITCHIE, J., held, that the order should be for the entry of an exoneretur on the bond, not for the delivery up of the bond, following the old practice (Allison v. Desbrisay, Cochrane 19), there being no specific Rule in the Nova Scotia Judicature Act, on the subject.

MANITOBA.

En the King's Bench.

[BAIN, J., 2ND NOVEMEER, 1903.

In re SLATER.

Infant-Custody of illegitimate child-Rights of mother-Exercise of judicial discretion-Abandonment of child—Agreement-Forisfamiliation.

Application by the mother for the custody of an illegitimate child, a boy 12 years of age. The mother, who was only 17 when the child was born, was unable to support him, and arranged with one J. Setter to take the child, and he had been with Setter ever since. At the time she gave the child to Setter she executed a document which set forth that she "doth hereby give, grant, release, and abandon unto the said party of the second part forever her said male child and all her right and title as the mother of the said child to the custody, control, and possession of said child from henceforth." Setter on his part agreed that he would maintain, care for, and educate the child. The mother subsequently married and had five children. The boy had been maintained and brought up by Setter and his wife as their own, and the mother had never interfered with their control of the child or shewn any interest in him until a few weeks before the application, when she made a demand on them for his custody; she alleged that he was made to do work which was too hard for one of his years, and that Setter had not carried out his undertaking to have him educated. It did appear the boy had never attended school, but the nearest school was five miles off; he had been taught at home by Mrs. Setter. The Setters were in comfortable circumstances; they had no children of their own; and had brought the boy up with the same care that they would have bestowed on a child of their

own.

Held, that the application should be refused. The interests of the child would be better served by leaving him with the Setters than by handing him over to his mother. The right of the mother to the custody of the child cannot be regarded as an absolute one, and the Court has full authority to consider the best interests of the child: Regina v. Nash, 10 Q. B. D. 454; Barnardo v. McHugh, [1891] A. C. 388.

The agreement the mother made with Setter to make over the child to him was not one that could be legally enforced against her, even if she had been of age when she executed it: Andrews v. Salt, L. R. 8 Ch. 622.

Setter took the child and had maintained him, relying on her agreement to abandon all claim to him; for eleven years the mother had taken no interest in the child, and had allowed Setter to suppose that she intended to stand by her agreement; under these circumstances the Court would require to be very clearly satisfied that it would be to the advantage and benefit of the child that he should be returned to the mother's custody, before exercising discretion in her favour.

A. J. Andrews, for the applicant.

J. R. Haney, for Setter.

[RICHARDS, J., 21ST AUGUST, 1908.

BANK OF BRITISH NORTH AMERICA v. BOSSUYT. Banks and banking-Discount of notes-Excessive rates of interest-Pay. ment by cheques on overdrawn account, afterwards met-Excess not

recoverable.

The plaintiffs, a banking corporation subject to the provisions of the Bank Act, discounted, at their branch at Dawson, notes made by the defendant, one of their customers there, and also allowed him to overdraw his current account. The notes were payable on demand, and purported to bear interest at 20 per cent. per annum. The defendant also agreed to pay interest at that rate on his overdraft: afterwards the rate was reduced to 18 per cent. The defendant from time to time gave the plaintiffs cheques to pay interest accrued; when the cheques were given the accounts they were drawn against had already been overdrawn. But each account was at some date after the giving and charging up of such cheques on it changed into a credit balance in the defend ant's favour by deposits or by collections made by the plaintiffs for the defendant's account. Those cheques covered such interest up to the 31st January, 1902.

The plaintiffs credited themselves with interest at 24 and 18 per cent. up to 31st January, 1902, and alleged that it was paid them by the above cheques.

The defendant contended that the giving of the cheques was not payment of the interest, but that they constituted at the most mere promises to pay, there being, to the plaintiffs' knowledge, when they were given, no funds at defendant's credit to pay them.

Held, that judgment should be entered for the plaintiffs, with a reference to the Master to take the accounts. The defendant did not recall the cheques or stop payment of them. They were given to the plaintiffs as creditors of the defendant, and not as his bankers. They were in effect directions to the plaintiffs as the defendant's bankers to pay the amounts to themselves as his creditors as soon as there should be available funds at his credit with them, as his bankers, to pay them with, and they were in fact paid out of such funds when available; and the defendant could not recover the excess over seven per cent.

From the 31st January, 1902, the plaintiffs could charge the defendant with interest at the rate of five per cent. only, that being the legal rate.

J. S. Tupper, K.C., and G. D. Minty, for the plaintiffs.
A. Haggart, K.C., and H. Whitla, for the defendant.

[PERDUE, J., 10TH OCTOBER, 1903.

In re CANADIAN PACIFIC R. W. CO, AND LECHTZIER.

Landlord and tenant-Overholding tenant -“ Colour of right."

Summary application for possession of land under the Landlord and Tenant Act, R. S. U. 1902 c. 93.

An agreement dated the 4th May, 1900, was entered into whereby Lechtzier acknowledged that he was a weekly tenant of the premises in question to C. S. Hoare, and agreed that his lease might be terminated at any time by "the party of the first part" (evidently an error for "the party of the second part ") or by J. Osborne or J. A. M. Aikins, whom Lechtzier acknowledged to be the agents for that purpose of the party "of the first part," meaning Hoare. At that time. the property was vested in Hoare, but he was merely a trustee

for the railway company. Afterwards the property was conveyed to the company. At the time the notice to quit was served Lechtzier was tenant of the premises to the company

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. No 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 constitutes 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. The tenant had not shewn any claim which should be construed as a colour of right.

In the Supreme Court.

[FULL COURT, 19TH JANUARY, 1903.

HUTCHINS v. BRITISH COLUMBIA COPPER CO. County Court-Practice-Setting aside judgment and granting new trial. Appeal from an order of LEAMY, Co.J., setting aside judg ment and granting a new trial on the ground that the verdict of the jury was against the weight of evidence.

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.

MCLEOD

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 substi tute 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.