D. What constitutes a sale, as to creditors of the vendee.

The plaintiffs, machinists in Connecticut, agreed to furnish one A. with a ponderous machine, weighing about eight tons, to be carted by them and put up in A.'s mill in Worcester. If it should work to A.'s satisfaction, he was to pay for it, otherwise it was to be taken away. The machine was accordingly placed in a new mill, which had been prepared to match it; but, before being fully set up, or all the material parts furnished, it was put in operation for trial. A. was not satisfied with the experiment. The same day, it was attached as his property. Held, the property had not passed to A., and the plaintiffs might maintain trespass against the officer, being sufficiently in possession of the property for this purpose. - Phelps v. Willard, xvi. 29.

E. Warranty; deceit; rescinding of a sale.

1. In an action for deceit in the sale of goods, by written contract, parol proof of warranty is admissible, only to the point of representation; and a judgment for the defendant is no bar to any action, founded on a contract made on good consideration, in regard to the subject matter, and not involving the charge of falsity or deceit. Salem, &c. v. Adams, xxiii. 256.

2. The purchaser of a chattel cannot rescind the sale without returning it, if it is of any value, or the loss of it any injury. – Perley v. Balch, xxiii. 283.

3. In an action upon a note given for the price of a chattel, by the payee, the defendant, in mitigation of damages, may set up a partial failure of consideration, deception as to its quality or value, or breach of warranty. - Ibid.

4. Where a sale of land is effected, by means of fraudulent representations of the vendor, for more than its value, and he takes back a mortgage to secure the price, the purchaser may rescind the sale, though his right of redemption is under attachment by his creditors; because the vendor is substantially in the same situation as before the sale. Holbrook v. Burt, xxii. 546.

5. Whether a sale is rescinded in reasonable time, is a question of law, the facts being admitted. — Ibid.

6. Where land is sold by means of fraudulent representations, made in relation to a matter which is the subject of a previous guaranty, but between different parties; the vendee is not bound to resort to such guaranty, but may rescind the sale. Ibid.

7. In an action against a vendee, upon a bond given for the price of the thing sold, the contract of sale being in writing, evidence is admissible of prior verbal representations made by the vendor, for the purpose of showing fraud on his part, though it would not be admissible to prove a warranty. — Ibid.

8. Evidence of fraudulent representations by a vendor is immaterial, unless the purchaser relied upon them, or if he had full means of detecting the fraud by inspection. But he will be presumed to have relied upon them, unless the contrary is proved. Ibid. Salem, &c. v. Adams. xxiii. 256.

9. Action on the case, for deceit in the sale of certain shoes. The plaintiffs offered evidence, that the boxes containing them were piled in an inconvenient place, and apparently so arranged as to prevent a fair and full examination. In answer to this, the defendants offered a witness, to testify that he had examined the same shoes at about the same time, at the same place, and under the same circumstances, with a view to purchasing, and that the defendants gave him every facility for a full examination. — Ibid.

10. If a written contract of sale contains an express warranty, and the purchaser brings an action on the case against the seller, in the old form, alleging the warranty and its falsity, and fails therein; it seems, the verdict and judgment will be a bar to assumpsit on the warranty. — Ibid.

11. Sale to the plaintiff by an auctioneer, of goods consigned to him by the defendants, on condition that no allowance should be made for damage unless applied for within three days, when the bills were to be settled. Held, neither the defendants nor the auctioneers were liable beyond the time specified for damage, though not discovered till after such time. - Atkins v. Howe, xviii. 16.

12. In an action to recover back the price of the goods, held, evidence was not admissible of a custom of merchants, for purchasers at auction to return the goods to the owners, and for the latter to receive them or make allowances, after the three days expired, if within a reasonable time of the sale.

Ibid.

13. Held, the purchaser could not object that the period of three days was unreasonably short for the purpose above stated.Ibid.

14. Barrels of mackerel, branded under the inspection laws as No. 1 and No. 2 mackerel, were sold in the spring, and described as such in the bill of parcels. Held, such description was not a warranty that the mackerel were free from rust at the time of sale, though mackerel affected by rust are not considered as No. 1 and No. 2. Winsor v. Lombard, xviii. 57.

15. Tenants in common of a vessel, not jointly engaged in buying or building ships for sale, do not stand in a relation of mutual trust in the respect to the sale of such vessel, which requires each in his dealings with the other, to communicate all the facts within his knowledge, that may affect the price or value; but they may deal with each other, as if they were owners of separate property. Matthews v. Bliss.

16. Thus one may contract with a third person to sell him the whole vessel, and afterwards lawfully bargain with the other for his share at a lower rate, without disclosing to him the former agreement. Ibid.

17. But any studied effort to conceal this fact, or any, however slight, false and fraudulent suggestion or representation, will avoid the contract, even though such representation was not the predominant motive, if it was any inducement, to the buyer. — Ibid.

18. In an action by one tenant in common against another, who had bought his share of the vessel under the above circumstances, upon the ground of fraudulent representations; held, the defendant might offer evidence tending to prove, that he gave the full value of the vessel, in order to disprove fraud, and that this evidence was proper for the consideration of the jury, upon the question of damages; but that the price at which the defendant had agreed to sell was strong, though not conclusive evidence of the value. Ibid.

School.

1. The teacher of a public school is not liable to an action by a parent, for refusing to instruct his children. Spear v. Cummings, xxiii. 224.

2. A town may change the limits of an existing school-district. -Allen v. School-District, &c. xv. 35.

3. Action against a school-district for rent of the school-room. Held, the committee by whom it was hired was competent to prove the contract, and the occupation of the room. - Ibid.

4. The action may be maintained, though the school was in part supported by private contributions, and therefore longer continued than it would otherwise be, though the teachers were not legally employed nor duly qualified, and though the town did not legally appropriate or distribute the funds raised for schools. - Ibid.

5. When a town abolishes school-districts and forms new ones; the school-houses become the property of those districts, which

include them within their limits. School, &c. v. Richardson, xxiii. 62.

6. Held, this rule applied to a wooden school-house, built by an old district, which became parts of two new ones, on land occupied by the district under a parol lease, the rent of which had not been paid. Ibid.

7. Pending an action, brought in the name of a school-district not duly organized, the district organized, and ratified the prosecution of the suit. Held, such ratification was valid and effectual. Ibid.

8. The clerk of a school-district having removed into an adjoining district in the same town, and another person being chosen in his stead; held, the former might still act as clerk. — Williams v. School, &c. xxi. 75.

9. A warrant for a regular, annual town-meeting contained articles" to choose all necessary town officers," and "to choose all necessary committees." The law allowed the election of committees in either of two modes, one of which was, (with regard to school committees) for each district to choose for itself. Held, under this warrant the town might decide which mode to adopt, and pass a vote" that each school-district choose their own committees." - Ibid.

10. The records of a school-district did not show, that at a certain meeting a prudential committee was elected. Another record was offered in evidence, which, the district clerk testified, gave a true account of the meeting, and which stated the election of such committee. He also testified, that both records were made by him, soon after the meeting, from loose memoranda made at the time of the meeting. Held, as the records were both originals, of equal authority, and not inconsistent, the election was duly proved. Ibid.

11. The defendant, as clerk of a school-district, certified to the assessors, that, at a legal meeting of the district, it was voted to raise a sum of money, which they thereupon assessed. For non-payment of this tax, the plaintiff was arrested. In an action of the case brought by him, held, the defendant was not liable, upon the ground of irregularity in the calling of the meeting which elected him, or illegality in the calling and proceedings of the meeting at which such vote was passed. Allen v. Metcalf, xvii.

208.

Scire Facias.

1. A scire facias can issue only from the court having the record upon which it is founded. Osgood v. Thurston, xxiii. 110.

-

2. A writ of scire facias against bail, founded on a judgment of the Supreme Court against the principal, was issued from the Court of Common Pleas. The defendant appeared and pleaded. Held, this did not give the latter court jurisdiction of the case, the writ being on its face a nullity; that the Supreme Court had no appellate jurisdiction; and that the writ could not be amended, by substituting, for words which imported that it issued from the court below, those which would make it a writ issued by the Supreme Court. Ibid.

3. Held, as without plea or appearance the Court would ex officio have quashed the writ, the defendant was not entitled to costs. Ibid.

4. Where an execution is returned satisfied by a levy upon property, which proves afterwards not to have belonged to the debtor, and the creditor thereupon refunds the money received by him; he may issue a scire facias upon the judgment, without first petitioning for special leave of court. Wilson v. Green, xix.

433.

5. If a writ of scire facias against a trustee be lost, the plaintiff have leave to file a copy. may Sturtevant v. Robinson,

xviii. 175.

6. If an office copy cannot be had, but a paper is produced, which, the plaintiff's attorney makes affidavit, is in part a copy from a scire facias against another trustee in the same suit, and in part made out from memory, and, as he believes, is an exact or substantial copy of the writ; leave may properly be granted to file such paper. Ibid.

Sea.

1. The rule settled in Massachusetts, that in all creeks, coves, and other places upon salt water where the sea ebbs and flows, the proprietor of the upland owns the flats to low-water mark, or to the distance of one hundred rods, if the sea ebbs farther than that; applies to the shores of the open sea. - Sale v. Pratt, xix. 191.

2. An owner of flats cannot claim title beyond a creek in which the sea ebbs and flows, and from which the tide does not wholly ebb. Sparhawk v. Bullard, 1 Met. 95.