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 ing of title. And this is particularly true where the thing delivered is not capable of being used by the buyer without a more complete fulfillment of the seller’s obligations. See Kitson Machine Co. v. Holden, 74 Vt. 104, 52 Atl. 271.

Since, in our opinion, title did not pass to the defendant, it is immaterial whether the contract was properly rescinded or not. The notice of purported rescission which was promptly given was at any rate sufficient to apprise the plaintiff that the defendant refused to recognize the contract as being any longer binding upon him in view of the failure to perform on his part.

For the reasons stated, we are of the opinion that the judgment in favor of the plaintiff is erroneous, and it is reversed. The case is remanded, with directions, to enter a judgment of dismissal; defendant to recover his costs.

, C. J. and and, JJ., concur.

, J., concurs in the result.

JOSEPH WILHELM, Appellant, v. JOHN BANG, Sheriff of Dunn County, North Dakota, and State Bonding Fund, Surety, Respondents.

Sheriffs and constables—discovery of lost execution in clerk’s custody held to warrant vacation of amercement judgment against sheriff for failure to return.

Where a judgment was entered against a sheriff in amercement proceedings and where the trial judge, at the time of ordering judgment, directed a stay of execution for thirty days within which time defendant might move to vacate, and during the pendency of the motion the execution, which had been lost and the failure to return which constituted the basis for the amercement judgment, was found in the custody of the clerk of the district court among excess files kept in a storage vault with a return endorsed thereon by the sheriff, it is held sufficient facts appeared to constitute a prima facie defense to the amercement proceedings