The evidence in these cases consists of the testimony of O’Donnell. It appears from his statement that the exchange of horses was complete, and he gave bis note to Allen for the balance. After the lapse of six weeks, he became dissatisfied with the mare he had received from Allen, but did not pretend that he had been in any way defrauded, or that any warranty had been broken. He took his mare back to Allen, but did not propose to take back the horse Charlie that he had sold to Allen, or request that the note given by him should be cancelled. Nothing was said by either party about rescinding the contract. His proposal was that Allen should let him have another horse, or procure one for him. But as Allen had none at the time that he was willing to recommend, O’Donnell took one temporarily; and afterwards returned it and took another. The judge ruled correctly that the evidence was insufficient in law to sustain the action of O’Donnell. It had no tendency to sustain it. He also ruled correctly that as the contract *108was not rescinded, the note remained in force, and Allen was entitled to recover the amount due on it.
Exceptions overruled.