323 



another, it appears to us that he cannot do so 

 after a resale at a profit. 



"These are acts of ownership wholly inconsistent 

 with the purpose of trial, and which are conclu- 

 sive against the defendant, that the particular 

 chattel was his own; and it 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 in- 

 termediate 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 the warranty. 

 The damages to be recovered in the present action 

 have not been properly ascertained by the jury, 

 and there must be a new trial, unless the parties 

 can agree to reduce the sum for which the ver- 

 dict is to be entered." 



I have quoted this case at great length, because, 

 confirmed as it is by the opinion of Lord Lynd- 

 hurst, already quoted, it seems to establish the 

 point beyond dispute, that the purchaser of an 

 unsound horse cannot return him, and treat the 

 contract as void, unless a special condition has 

 been inserted in the contract that he should be 

 entitled to return it. I may add, however, an 

 additional authority, which bears upon the case, 

 y2 



