IN SEARCH OF A HORSE. 861 



" But where the contract is executory only, -syhen 

 the chattel is received, as where goods are ordered 

 of a manufacturer, and he contracts to supply them 

 of a certain quality, or fit for a certain purpose, the 

 vendor may rescind the contract if the goods do not 

 answer the warranty, provided he has not kept them 

 longer than was necessary for the purpose of trial, 

 or exercised the dominion of an owner over them, as 

 by selling them." 



In delivering his judgment on this case, Lord Ten- 

 terden adverted to the case of Curtis v. Hannay, 3 

 Esp. N. P. C. 83, where Lord Eldon is reported to 

 have said, '' that he took it to be clear law, that if a 

 person purchased a horse which is warranted sound, 

 and it afterwards turned out that the horse was un- 

 sound at the time of the warranty, the buyer might, 

 if he pleased, keep the horse, and .bring an action on 

 the warranty, in which he would have a right to re- 

 cover the difference between the value of a sound 

 horse, and one with such defects as existed at the 

 time of the warranty ; or he might return the Jiorse 

 and bring an action.^ to recover the full money paid ; 

 but in the latter case the seller had a right to expect 

 that the horse should be returned in the same state 

 31* 



