Held (no fraud being imputed to the plaintiff) that there was not an implied warranty on his part that the furnace supplied should be fit for the purpose of a brewery; but that the defendant having defined by the order the particular machine to be supplied, the plaintiff performed his part of the contract by supplying that machine, and was entitled to recover the whole £15 15s., the price of the patent right. (5 Bingh. 583; 4 B. & Cr. 108.) Chanter v. Hopkins, 4 M. & W. 399. WITNESS. (Examination of witness on interrogatories.) The court will not grant a rule to examine a witness on interrogatories on the ground of infirmity, age, or illness; unless the affidavit of a surgeon be produced, stating the nature of the incapacity, and alleging his belief that the witness will not be able to attend the trial of the cause. Davies v. Lowndes, 7 D. P. C. 101. 2. (Objection to competency, how to be taken.) A party cannot give evidence to shew the incompetency of a witness called for the opposite party, without having taken the objection on the voir dire. Dewdney v. Palmer, 7 D. P. C. 177.

3. (Competency.) In an action on a charter-party, a person who is a partner with the plaintiffs in the ship, though not one of the registered owners, is not a competent witness for the plaintiffs, unless cross releases are executed between him and them. Jackson v. Galloway, 8 C. & P. 480.

4. (Same.) In an action by assignees of a bankrupt for money had and received, against a sheriff who has sold the goods of the bankrupt under an execution, and paid over the proceeds after notice of an alleged act of bankruptcy, the sheriff's officer who acted in the execution, if he has given the usual indemnity bond to the sheriff, is not a competent witness for the defendant, under the stat. 3 & 4 Will. 4, c. 42, s. 26. Groom v. Bradley, 8 C. & P. 500.

5. (Same.) A plaintiff claimed, as occupier of a house, to be

entitled to the use of water from a certain watering place. Her sister, who was called as a witness in support of the right, stated on the voir dire that she had been a joint owner in fee with the plaintiff of the house in respect of which the right was claimed,

and had conveyed her share to the plaintiff with the usual covenants for title. Held, that she was not a competent witness, and that indorsing her name on the record, under the stat. 3 & 4 Will. 4. c. 42, s. 27, would not render her competent. Steers v. Carwardine, 8 C. & P. 570. WOUNDING. To constitute a wound, there must be a separation of the whole skin; a separation of the cuticle only is not sufficient. Reg. v. M'Loughlin, 8 C. & P. 635.

EQUITY.

Selections from 8 Simons, Part 3.

AUDITOR. (Appointment by will.) Testator by will appointed the plaintiff to be auditor of the accounts of his estate, during the execution of the trusts of the will, with a proper salary, and in case he should become incapable or unwilling to act, testator directed his trustees to appoint another auditor of a certain description and with like remuneration. Held, that the trustees could not remove the plaintiff from his auditorship, without proof of incapacity or neglect, and that he was entitled to receive an adequate salary, to be fixed by the master. Williams v. Corbet,

8 Sim. 349. DEMONSTRATIVE LEGACY. A gift of an annuity for the life of the donee, payable out of the testator's long annuities, and which he afterwards directed to be secured on his stock of long annuities: Held to be a general legacy, with a specific fund pointed out for its payment, and a sufficient portion of long annuities was directed to be sold out to answer the annuity. Fryar v. Butter, 8 Sim. 442. FOREIGN CONTRACT. (Domicile-Construction-Satisfaction.) A., a domiciled Englishman, married a lady at the Mauritius, where the French law was in force. By their settlement, which was in the French language and form, they declared, that they intended to marry according to the laws of

England, the benefit of which they reserved to themselves the power of claiming and it was stipulated that the sum of £4000, which A. acknowledged by the settlement that he had received from his wife, should be invested for her benefit, and the income paid to her with a proviso, that, if at the time of the husband's decease such investment had not been made, the wife should be at liberty to take the sum out of his assets. A., in fact, never received the £4000, the acknowledgment by him being merely the usual form of creating an obligation by the French law. Held, upon the death of A. intestate, that the widow was entitled to have the £4000, paid out of his assets, and also to receive her distributive share of the residue. Lang v. Lang, 8 Sim. 451.

INFANT. (Maintenance.) An infant's share of a residue, amounting to £125, was on the joint petition of the infant and his father ordered to be paid to the latter, to reimburse him for the expenses of his son's outfit and passage to India, which he had borrowed money to defray. Clay v. Pennington, 8 Sim.

359.

LETTERS-PATENT. (Construction, extent of grant.) The island of Cape Breton, which is separated by a very narrow stait from Nova Scotia, was originally, and up to the year 1784, considered as forming together with it one colony. In that year it was for the purposes of government made a distinct province, and was subject to a separate governor and council of its own until 1820, when it was reunited to Nova Scotia by the name of the country of Cape Breton. In 1788, while the separation continued, the duke of York applied for a grant of mines in Nova Scotia; and it appeared in evidence, that it was the intention of Geo. 3 to have made such a grant, subject to certain reservations (which were not settled at the time), but this intention was never carried into effect. After the death of Geo. 3, and after that Cape Breton had been reunited to Nova Scotia, the duke of York renewed his application, founding it upon the intention of the late king, and upon that ground expressly the lords of the treasury, by two several minutes, recommended Geo. 4, to

make a grant to the duke of York of all mines in the province of Nova Scotia, upon certain terms, which they requested the chancellor of the exchequer to submit to the duke of York. In the first of these treasury minutes, Cape Breton was spoken of as distinct from Nova Scotia, and it was with reference to Nova Scotia so described that they mentioned the intention of Geo. 3. Letters-patent were afterwards made, by which Geo. 4, of his especial grace, certain knowledge, and mere motion, granted to the duke of York, upon certain terms, all mines in the province of Nova Scotia. Held that this description included Cape Breton, and that the clear meaning of the letters-patent was not to be controlled by the ambiguous language of the treasury minutes, more particularly as the terms recommended by the lords of the treasury had been altered in one other important particular, namely, by the substitution of 60 years for 36, as the period of the grant. Taylor v. Attorney-General, 8 Sim. 413. PARLIAMENTARY AGENT. (Privilege from arrest.) A parliamentary agent on his return from the house of lords, where he had been attending an appeal, was arrested upon an attachment for the costs of a chancery suit. Held that he was entitled, although he had not returned by the shortest road, and had stopped for refreshment, to be discharged, and that he might apply for that purpose, either to the court out of which process had issued, or to that on which he was attending when arrested. Att.-Gen. v. Skinner's Comp.; Ex parte Watkins, 8 Sim. 376; and Coop. 1. PRE-EMPTION.

(Laches.) A testator devised a house to trustees upon trust to permit his son, at any time within three months after his decease, to become the purchaser thereof, at a certain price, and to convey the same accordingly; but should the son not complete the purchase within three months, then the trustees were to sell the same by auction within twelve months of the testator's death. The son, who was himself a trustee, within two months declared verbally to his co-trustees his intention to purchase, but the trustees did not deliver the title-deeds to the solicitor who was to prepare the conveyance until the last

day of the three months, and no conveyance was made, nor was any part of the purchase money paid within the three months. Held, that the right of pre-emption was lost. Dawson v. Dawson, 8 Sim. 346.

STATUTE OF LIMITATIONS. (Mercantile accounts.) Where the bill stated that five persons who were joint owners of an estate in Java, and were as such indebted to the plaintiffs, a mercantile firm in Bombay, for moneys paid by the firm on their account and for their use as proprietors; and that subsequently, in pursuance of an arrangement by which the debt was divided among the proprietors, the defendant was debited with his proportion, and that afterwards divers sums had been received by the firm on his account, and that such an account was still open and unsettled: Held, that this was not upon the face of it a mercantile account within the exception of the statute of limitations. Forbes v. Skelton, 8 Sim. 335. USURY. (Purchase of rent charges.) Two rent charges of £21 each, secured upon and issuing out of leasehold property, were, as the deeds expressed, granted for 40 years in consideration of £400. There was evidence to show, which was taken to be true by the court, that the original application was for a loan. Held, that the transaction was usurious, it being clear that the aggregate payments on the rent charge would greatly exceed the £400 with interest thereon at five per cent. for forty years. Ferguson v. Sprang, 3 Nev. & Man. 665, commented Chillingworth v. Chillingworth, 8 Sim. 404. WILL. (Construction, substitution, presumption of death.) Testator, by will dated 1828, bequeathed a fifth of his residuary estate to W. R., E. R., and J. R., and all other the children of J. R. the elder, and the issue of such of his children as should have departed this life, such issue to take the share which their parent would have taken if living. R., not named in the will, had not been heard of since 1815. be presumed to have died before the date of the will, and that his children were entitled to the share which he would have taken if living. Rust v. Baker, 8 Sim. 443; Coop. 172.

on.

One of the children of J. gone abroad in 1809, and had Held by the court that he must