362 THE ADVENTURES OF A GENTLEMAN 



he was when sold, and not, by any means, dimi- 

 nished in value ;" and " that if it were in a worse 

 state than it would have been, if returned immedi- 

 ately after the discovery, the purchaser would have 

 no defence to an action for the price of the article." 

 "It is to be implied," Lord Tenter den remarks, 

 " that he would have a defence in case it were re- 

 turned in the same state, and in a reasonable time 

 after the discovery. This doctrine has been adopted 

 in Mr. Starkie's excellent work on the Law of Evi- 

 dence, part IV., p. 645 ; and it is there said, that a 

 vendee may, in such a case, rescind the contract 

 altogether, by returning the article, and refuse to 

 pay the price, or recover it back if paid. It is, how- 

 ever, extremely difficult, indeed impossible to recon- 

 cile this doctrine with those cases in which it has 

 been held, that where the property in the specific 

 chattel has passed to the vendee, and the price has 

 been paid, he has no right upon the breach of the 

 warranty to return the article, and revest the pro- 

 perty in the vendor, and recover the price as money 

 paid on a consideration which has failed ; but must 

 sue upon the warranty, unless there has been a con- 

 dition in the contract authorizing the return, or the 



