
    Elisha Dyer and Another versus Nathaniel Lewis and Another.
    Where one sold a vessel, and in the bill of sale described her as of certain dimensions and burden, when, in truth, she was of less dimensions and burden, it was held, that the purchaser could not maintain an action of the case against the seller, as for a false affirmation and promise.
    This was an action of the case, in which the plaintiffs declared that the defendants, being owners of the schooner Morning Star, in consideration that the plaintiffs at the special instance and request of the defendants, would buy the said schooner, affirmed and promised to the plaintiffs, that she was of such length, depth, and breadth, and of the burden of sixty-nine tons ; and that the plaintiffs, giving credit to the said affirmation and promise, at the request of the defendants, did buy the said schooner, for the sum of 1600 dollars. Yet the defendants, not regarding their said promise, but contriving to defraud the plaintiffs in this behalf, subtilely deceived them in this, that the said schooner at the time aforesaid was not of the length, depth, and breadth, nor of'the burden aforesaid; but was of such *a length, depth, and breadth, and of the [ * 285 ] burden only of sixty-one tons; and so the defendants, by means of their said false affirmation and promise, had greatly injured and defrauded the plaintiffs.
    The defendants pleaded that they never promised, &c.; on which an issue was joined, and tried before Parker, J., at the last November term in this county.
    At the trial, the plaintiffs produced a bill of sale of said schooner from the defendants, not under seal, which stated her to be of the largest admeasurement mentioned in the declaration, with a warranty of the property, and also a deposition of one Bishop, proving that the vendors, by their agent at the time of the bargain and sale, represented and promised the plaintiffs that the vessel was in fact of such dimensions and burden; also the depositions of sundry persons, which proved that she was of less dimensions and burden than she was represented to be.
    
      The judge instructed the jury that the said evidence was not sufficient to entitle the plaintiffs to their verdict for damages, and did not maintain the issue on the part of the plaintiffs, observing that there was no evidence that the defendants knew of the difference in the admeasurement, or that their affirmation to the plaintiffs respecting the same was untrue.
    The jury returned a verdict for the defendants, and the plaintiffs filed their exceptions to the directions of the judge, and on that ground moved for a new trial.
    And now Parker, in support of his motion,
    cited the case of Suart vs. Wilkins, 
       to show that this was the proper form of declaring; and he relied on the evidence of Bishop, to prove an express warranty, and the other evidence stated, to show the breach of the warranty. 
    
    
      
      
        Doug. 18.
    
    
      
       1 Salk. 3, 211. — 2 Comyns on Contract, 274.
    
   Sewall, J.,

likened this to the case of Powell vs. Clark. (Ante, Vol. 5, 355.)

Thurston, of counsel for the defendants, was stopped by the Court.

Per Curiam,

(absente Parsons, C. J.), Let judgment be entered on the verdict, 
      
      
         [Vide Hastings vs. levering, 2 Pick. 214. —Ed.]
     