318 



the price for which he had sold it to him. These 

 were the facts of the case, and it was held that, 



" A person who has purchased a horse warranted 

 sound, and then sold it again, and then re-pur- 

 chased it, cannot^ on discovering that the horse 

 was unsound when first sold, require the original 

 vendor to take it back again : nor can he, by rea- 

 son of the unsoundness, resist an action by such 

 vendor for the price ; but he may give the breach > 

 of warranty in evidence in reduction of damages. 



Semble : That the purchaser of a specific chattel 

 under warranty, having once accepted it, can, in no 

 instance, return the chattel, or resist an action for 

 the price on the ground of breach of warranty, 

 unless in case of fraud, or express agreement, 

 authorizing the return, or by consent of the vendor. 



But where the contract is executory only, when 

 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 thera longer than w^as necessary for the pur- 

 pose of trial, or exercised the dominion of an owner 

 over them, as by selling them." 



In delivering his judgment on this case, Lord 

 Tenterden adverted to the case of Curtis v. Hannay, 



