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obliged to bring an action for deceit; nor would an action of covenant be proper. Ib. WARRANTY. (Remedy for breach of.) Upon the sale of a

horse with a warranty or representation of soundness, the plaintiff may declare upon a warrantizando vendidit, alleging a scienter of the falsity of the warranty, and, in such case, he may recover, either upon the express contract, if proved, or, if the scienter be proved, he may recover for the deceit. Vail v. Strong, 10 Vermont, 457. WAY. (Burden of proof in action for injury by defect of.) In an action against a town for an injury sustained by the overturning of the plaintiff's carriage, on a highway in such town, the burden of proof is on the plaintiff to show, that he was driving with ordinary skill and diligence at the time when the accident happened. Adams v. Carlisle, 21 Pick. 146. WILL. (Contested from imbecility.) Where the validity of an

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alleged will is contested on the grounds of imbecility of mind and undue influence on the testator, it is not error to charge the jury, that "facts and circumstances were the primary evidence on which they must rely, and not the opinion of witnesses as to the soundness or capacity to make a will; nor is it error to charge in such case that "the influence exercised in procuring a will which is sufficient to set it aside, must be such as destroys free agency. There must be imprisonment of the body or mind; and that unless the jury were satisfied that there was such physical force exerted, arising from actual duress, or imprisonment of the body, or such mental force, arising from threats, as prevented free agency, they were not to consider the influence exerted by the testator's daughter as improper, or sufficient to invalidate the will." Brown v. Molliston, 3 Wharton, 129.

2. (Containing two repugnant clauses.) It is a general rule, that when a will contains two clauses, totally inconsistent and incapable of being reconciled, the latter shall have a preference. Lewis's Estate, 3 Wharton, 162.

WITNESS. (Where interest is balanced.) The plaintiff sold

goods to A on a credit; A immediately sold them again to the defendant; and the plaintiff brought replevin for them, on the ground that they had been obtained of him through the fraud of A and the defendant. Held, that A's interest in the suit was precisely balanced, and consequently that he was a competent witness for the defendant. Bucknam v. Goddard, 21 Pick. 70. 2. (Competency of judge of probate.) On an appeal from a decree of a judge of probate respecting the estate of a deceased person, on the ground of his being interested in the estate and therefore ousted of jurisdiction over it, the judge is a competent witness to prove that he is not interested. Sigourney v. Sibley, 21 Pick. 101.

3. (Competency.) If, by the terms of a contract to pay the debt of a third person, the original debtor is discharged, he is not a competent witness for the plaintiff to prove such contract. Anderson v. Davis, 9 Vermont, 136.

4. (Same.) Testimony may be given to show that a violent quarrel existed between the party and a witness, introduced against him, without inquiring of the witness, as to the quarrel. Pierce v. Gilson, 9 Vermont, 216.

5. (Attending several days.) When a witness attends, if he is wanted for a further day, his fees must be tendered each day, for the succeeding day, but it is not necessary that he be each time served with a subpoena. Mattocks v. Wheaton, 10 Vermont, 493.

6. (Release by administrator to heir.) In an action brought by an administrator to recover a debt due the estate, the heir is not a witness on his releasing his interest in the debt. The administrator, also, should release him from cost. Baxter, Adm'rx. v. Buck, 10 Vermont, 548.

III.-MISCELLANEOUS CASES.

In the Court of King's Bench, for the District of Quebec, in vacation, October 24, 1839.

ROBERT GILLESPIE AND OTHERS AGAINST J. B. FORSYTH AND OTHERS. Where the first mate of a vessel was unable to read and write, and was not a navigator, but was a good seaman, it was held, that the vessel was not thereby rendered unseaworthy.

In this case, which was tried before Mr. Justice BowEN and a special jury, the following facts appeared in evidence.

To

On the 11th of June, 1837, the schooner Industry, Cook, master, of the burthen of one hundred and fifty-six tons, sailed from Quebec with a cargo bound to Montego Bay, in the island of Jamaica, having besides the master, a crew of ten men including the mate, and also a supercargo. On the arrival of the schooner at Montego Bay, the supercargo discharged the master for some cause which does not appear, and had his own name indorsed upon the certificate of registry as master; but previous to the sailing of the vessel upon her return voyage to Quebec, the mate, John Dixon, was appointed master by the supercargo, and his name indorsed upon the certificate of registry as master. supply the place of Dixon, one of the seamen was appointed mate by him. The individual so appointed was fully competent to discharge all the duties of mate depending upon seamanship, but he could not write, and was not what is called a navigator, nor was there any other person on board capable of navigating the vessel excepting the master. The master and supercargo had previously made diligent search and inquiry for a person possessing such qualification, and without success. Several masters of ships testified that although it is desirable that mates of vessels should possess the knowledge of navigation as well as the skill of seamen, yet that it not unfrequently happens that they are without this knowledge, and that it is not essential to the discharge of their duties as mates, which they consider as requiring rather skill

in seamanship than knowledge in navigation. The vessel on her return voyage was wholly lost in the gulf of Florida, in a violent storm which she suffered there, but not from any fault or insufficiency of the mate, nor from any want of skill or knowledge of the master. She had been insured at the Canada Marine Insurance Company for £1200 on a policy made before she left Quebec, for the voyage out and back. On her return cargo there had been insured at the same office £2000 by a policy wherein Dixon, the new master's name, is given, the latter insurance having been effected after the change of master, and after that change was known at Quebec. The insurance as well on the ship as on the cargo is now resisted by the Canada Marine Insurance Company, on the ground that the vessel was not seaworthy at the time of her sailing from Montego Bay, she not having on board a mate of competent qualifications, as is alleged, nor any person capable of taking the command of her in the event of any accident happening to disqualify the master.

The case was conducted by Messrs. Black and Aylwin for the plaintiffs, and by Messrs. Gairdner and Vaufelson for the defendants; and the jury were charged as follows, by

Mr. Justice BowEN.-After the lengthy and patient examination which the case now submitted to your decision and verdict has undergone, this being the third day of the trial, I shall endeavor to condense the observations which it is my duty to make into as small a compass as possible. The case is one of much interest, and perfectly novel in the courts of this country-of much interest, as carried on between parties of such high respectability as the plaintiffs and defendants, and the sum at stake being large; novel, inasmuch as questions relating to marine insurance could not have arisen here before the formation of the Canada Marine Insurance Company, which is but of recent date-and also novel, as involving a question which has not hitherto received a formal decision in any of the British or American courts of judicature. The action is in assumpsit, and brought to recover a sum of £2,000, on a policy of insurance effected with the Canada Marine Insurance Company, by the plaintiffs, on the twenty-third of Sep

tember, 1837, on goods per the barge Industry, Dixon, master, at and from Montego bay, in the island of Jamaica, to the port of Quebec, which vessel was lost in the gulf of Florida. To this demand, the defendants, being advised that the vessel was not seaworthy when she sailed from Montego bay, have pleaded the general issue, and you, gentlemen, have now a case to decide in which much conflicting testimony has been adduced by most highly respectable and intelligent witnesses on both sides. The defendants, however, much to their credit, have shown no disposition to throw obstacles in the way of the plaintiffs; on the contrary they have made ample admissions narrowing down the case chiefly to this inquiry, namely, whether to constitute the vessel seaworthy at the time of her departure from the island of Jamaica, it was or was not necessary that she should have on board a mate competently skilled in the science of navigation, capable in the case of sickness or death of the master, to navigate the vessel in safety to her port of destination. The defendants have been censured for raising this objection, and refusing to pay off the loss. I think the censure not merited, the directors of the company acting for the stockholders, if they were advised and conscientiously believed, considering the nature of the voyage and the very hazardous navigation in the gulf of Florida, that the vessel was not seaworthy, have merely exercised a right common to all, that of having the opinion of a court, and jury of intelligent merchants, upon the particular facts of the case. With these preliminary observations, I shall now proceed to state to you, gentlemen, what I understand to be the law of the case, and I do not hesitate to say, that there is no rule of law, no decision of any of the tribunals of Europe or America to be met with, declaring in terms, that under no circumstances can a vessel proceeding to sea be held seaworthy, unless she have on board at the time of her departure, a second person skilled in navigation. In every case, therefore, that arises, it becomes a mixed question of law and fact, under the peculiar circumstances in which the voyage is undertaken, the size of the vessel, the probable duration of the voyage, and above all, the intricacy and danger of navigation in particular places, whether

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