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price when paid, on the ground of the total failure 

 of consideration : and it seems to follow, that he 

 cannot, by the same means, protect himself from 

 the payment 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 evi- 

 dence in mitigation o damages, on the principle, 

 as it should seem, of avoiding circuity of action 

 — Cormack v. Gillis, cited 7 East, 480, King v, 

 Boston, 7 East, 481 n. ; and there is no hardship 

 in such a defence being allowed, as the plaintiff 

 ought to be prepared to prove a compliance with 

 his warranty, which is part of the consideration for 

 the specific price agreed by the defendant to be 

 paid." 



" It is to be observed, that although the vendee 

 of a specific chattel, delivered with a warranty, 

 may not have a right to return it, the same reason 

 does not apply to cases of executory contracts, 

 where an article, for instance, is ordered from a 

 maimfacturer who contracts that it shall be of a 

 certain quality, or fit for a certain purpose, and 

 the article sent as such is never completely ac-- 

 cepted by the party ordering it. In this, and 

 similar cases, the latter may return it as soon as 

 he discover the defect, provided he has done no- 

 thing more, in the mean time, than was necessary 



Y 



