IN SEARCH OF A HORSE. 359 



horse can be returned upon a warranty of soundness, 

 where he is discovered to be unsound, or whether 

 the only remedy open to the purchaser is to bring 

 an action for the difference of value occasioned by 

 the unsoundness : in other words, whether the breach 

 of the warranty is an annihilation of the contract. 



This question appears to have been decided in 

 the case of Gompertz v. Denton, 3 Tyrwhitt, 232 ; 

 where it was held, that " a buyer of a horse on a 

 warranty of soundness, can only recover for breach 

 of it in an action for damages ; and unless both 

 parties agree to rescind, or unless in tke original 

 contract it was stipulated to be rescinded, if any 

 breach of it took place, the buyer cannot sue the 

 seller for money had and received, as for a failure of 

 the original consideration." 



The case of Street v, Blay, 2 Barnwell and Adol- 

 phus, 456, was referred to by Lord Lyndhurst in 

 the case last quoted, and it is a very important case, 

 because the doctrine of return underwent full con- 

 sideration. The plaintiff sold a horse to the defen- 

 dant for c£43, with a warranty of soundness ; the 

 defendant sold it the same day to Bailey, for X45 ; 

 Bailey sold it the next day to Osborne ; and Osborne 



