IN SEARCH OF A HORSE. 363 



vendor has received back the chattel, and has 

 thereby consented to rescind the contract, or has 

 been guilty of a fraud, which destroys the contract 

 altogether — See Weston v. Downes, 1 Doug. 23 ; 

 Towers v. Barrett, 1 T. R. 133 ; Payne v. Whale, 

 7 East, 274 ; Power v. Wells, Douglas 24 n. ; and 

 Emanuel v. Dane, 3 Camp. 299, where the same 

 doctrine was applied to an exchange with the war- 

 ranty, as to a sale, and the vendee held not to be 

 entitled to sue in trover for the chattel, by way of 

 barter for another received. If these cases are 

 rightly decided, and we think they are, and they 

 certainly have been always acted upon, it is clear 

 that the purchaser cannot, by his own act alone, un- 

 less in the excepted cases above mentioned, revest 

 the property in the seller, and recover the price 

 when paid, on the ground of the total failure of con- 

 sideration : and it seems to follow, that he cannot, 

 by the same means, protect himself from the pay- 

 ment of the price on the same ground. On the 

 other hand, the cases have established, that the 

 breach of the warranty may be given in evidence in 

 mitigation of damages, on the principle, as it should 

 seem, of avoiding circuity of action — Cormack v. 



