BREACH OF WAREANTY. 159 



horse should be returned in the same state as he was in 

 ■when sold, and not by any means diminished in value. And 

 Lord Eldon proceeds to say, that if it were in a worse state 

 than it would have been in, if returned immediately after 

 the discovery, the purchaser would have no defence to an 

 action for the price of the article." " It is to be implied 

 (says Lord Tenterden) that he would have a defence in 

 case it were returned in the same state, and in a reasonable 

 time after the discovery. This dictum has been adopted 

 in Mr. Starkie's excellent work on the Law of Evidence (e), 

 and it is there said that a vendee may in such a case rescind 

 the contract altogether by returning the article, and refuse 

 to pay the price or recover it back if paid." 



"It is, however, extremely difficult, indeed impossible, 

 to reconcile this doctrine with 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 warranty, 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 thereby 

 consented to rescind the contract, or has been guilty of a 

 fraud which destroys the contract altogether. In Weston v. 

 Dotvnes (/), Towers v. Barrett (g), Payne v. 'Whale (k). 

 Power T. Wells (i), and Emanuel v. Dane (j), the same 

 doctrine was applied to an exchange with a warranty as to a 

 sale, and the vendee held not to be entitled to sue in trover 

 for the chattel delivered 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, revest the 

 property in the seller, and recover the 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 oases have established, that the Evidence in 



mitigation of 



(e) Starkie on Evidence, part iv. (A) Payne v. Whale, 7 East, 274. 



p. 645. (i) Power v. Wells, Doug. 34, n 



133. 



(/) Weston Y. Bownes, "Doug. li. ij) Emanuel v. Dane, 3 Camp. 



(^) Towers v. Barrett, 1 T. R. 299. 



