BREACH OF WARRANTY. 167 



Is no authority to show that he may return it where the 

 purchaser has done more than was consistent "with the 

 purpose of trial, where he has exercised the dominion of 

 an owner over it, by selling and parting with the property 

 to another, and where he has derived a pecimiary benefit 

 from it. These circimistances concur in the present case ; 

 and even supposing it might have been competent for the 

 defendant to return this Horse, after having accepted it 

 and taken it into his possession, if he had never parted 

 with it to another, it appears to us that he cannot do so 

 after the re-sale at a profit." 



" These are acts of o^Miership wholly inconsistent with Acts of 

 the purpose of trial, and which are conclusive as^ainst the o"^^?'^*^'? ^^- 

 defendant that the particular chattel was his own ; and it -with trial. 

 may be added that the parties cannot be placed in the 

 same situation by the return of it as if the contract had 

 not been made, for the defendant has derived an inter- 

 mediate benefit in consequence of the bargain, which he 

 would still retain. But he is entitled to reduce the 

 Damages, as he has a right of action against the plaintiff 

 for the breach of Warranty " (m). 



In another case, where the question of return was con- Confirmed hy 

 sidered, the law laid do^^-n by the Court of Queen's a later case. 

 Bench was confirmed by the Court of Exchequer. And 

 Mr. Baron Bay ley said, " One party cannot rescind the 

 contract unless the other party agrees to it. The contract 

 of Warranty was open, and entitled the plaintilf to re- 

 cover damages for the breach of it, but did not entitle him 

 to retiu-n the Horse, and rescind the contract. In Street 

 V. Bin;/ {m), the law on this subject was fully considered 

 by the Court of King's Bench, and it was there laid do^\-n 

 that a purchaser has no right to return the article, unless 

 there has been a condition in the original contract autho- 

 rizing the return, or the vendor has subsequently consented 

 to rescind the contract, or un-less the case turn out to be 

 one of fraud. According to Poicerr. Welles {n), if the con- 

 tract is still open, you cannot maintain an action for Jloncy 

 had and received ; I take the rule to be, that if the contract 

 remains open, so as to give the party a right to recover 

 damages for a breach of Warranty, he cannot maintain an 

 action of Indebitatus assiimp'iit on the ground of the failure 

 of consideration." 



(m) Street v. £la>/, 2 B. i" Ad. («) Foicer v. Welles, Cowp. 818. 



4.56. 



