320 



or recover it back if paid. It is however, ex- 

 tremely difficult, indeed impossible to reconcile 

 this doctrine v^^ith 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 war- 

 ranty to return the article, and revest the property 

 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 condition in the contract authorizing the return,, 

 or the vendor has received back the chattel, and 

 has tliereby consented to rescind the contract, or has i 

 been guilty of a fraud, which destroys the contract! 

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

 Towers t\ 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 thei 

 same doctrine was applied to an exchange with the 

 warranty, as to a sale, and the vendee held not to i 

 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, , 

 unless in the excepted cases above mentioned, I 

 revest the property in the seller, and recover the 



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