[PRACTICE.] THE UNITED STATES, V. TILLOTSON ET AL. Where the burthen of proof of certain specific defenses set up by the defendant is on him, and the evidence presents contested facts, an absolute direction from the court, that the matters produced and read in evidence on the part of the defendant were sufficient in law to maintain the issue on his part, and that the jury ought to render their verdict in favor of the defendant, is erroneous; and a judgment rendered upon a verdict purporting to have been given under such a charge will be reversed, although the record was made up as upon a bill of exceptions taken at a trial before the jury upon the matters in issue, no such trial ever having taken place, and the case having assumed that shape by the agreement of the parties, in order to take the opinion of the court upon certain questions of law. THIS Mr. Justice STORY delivered the opinion of the court: ཆ Hawkins, was ever a consummated agreement, binding on the United States, in virtue of an original authority given to him, *or was [*182 a preliminary agreement dependent for its validity upon the ratification of the war department; and if that was withheld, (which there was direct evidence to prove), the agreement was a mere nullity. The bill of exceptions does not in terms find that the agreement was It merely such a consummated agreement. states, that "on or about the 7th of June, 1820, Col. James Gadsden, then acting as the agent for fortifications at Mobile Point, and thereto duly authorized by the said war department, did enter into an agreement or contract with the said Samuel Hawkins, touching the foregoing contract, with the said Benjamin W. Hopkins, and the erection of the fort therein provided for," &c. The word "thereto" may be applied either to the next antecedent, the agency of fortifica tions, or to the subsequent clause stating the agreement. It may mean, having a due authority as agent for fortifications, or having a due authority to enter into the agreement. The recital in the agreement itself, that Col. Gadsden entered into it "in pursuance of the instruc tions of the secretary of the war department," would not be decisive of the point, supposing it to be entitled to the fullest weight as matter of recital. But the case does not rest here. In another part of the record, evidence is introduced on the part of the United States, to establish that the agreement so made had never been ratified on the part of the war department; and also to show that it was understood by that department, that without such ratification the contract was not obligatory. We allude to that part of the record where it is stated that the agreement, as soon as executed at Mobile Point, was transmitted to the war tlepartment, and that a letter was written by the authority of that department, under date of the 10th July, 1820, to the defendants, as HawkThe bill of exceptions admits the due execu- ins's sureties, inclosing a copy of the agree tion of the bond in controversy, and the breachment, and requesting them, if they would sanees stated in the declaration are answered by special notices of defense set up as bars to the suit. The burthen of proof of these defenses, in point of fact, rested on the defendants. The court is supposed to have charged the jury, that the matters produced and read in evidence on the part of the defendants were sufficient in was not ratified by the secretary of war, nor law to maintain the issue on their part, and ever acted upon, except so far as it may appear that the jury ought to render their verdict in to have been ratified and acted upon [*183 favor of the defendants. This charge can be by the said transcript" (of the treasury acmaintained in point of law only upon the sup-counts) contained in the record. position that the evidence presented no contested facts; for otherwise it would withdraw from the jury their proper functions, to deter mine the facts upon the evidence in the cause. This cause comes before us from the Circuit Court for the southern district of New York, as upon a bill of exceptions taken 181*] *to the opinion of the court, upon a trial before a jury upon the matters in issue. In reality no such trial was had; but the case assumed this shape by the agreement of the parties, in order to have the opinion of the court upon certain questions of law. must, however, consider the case exclusively upon principles applicable to it as a bill of exceptions taken at a real trial.1 We Upon the argument in this court, various im portant questions have been elaborately discussed by counsel, upon which we forbear to express any opinion, as our judgment of reversal proceeds upon a ground which renders any decision on them unnecessary. Upon examining the record, we think that there is contradictory evidence, or rather evidence conducing to opposite results, in respect to a point material to many of the specifica tions of defense, and particularly as to the matters in the third, fifth, sixth, seventh, eight and ninth. It is this: whether the contract of the 7th of June, 1820, between Col. Gadsden, as agent of the war department, and Samuel 1.—The cause was argued and determined in the court below upon a case agreed upon between the parties, containing a state of facts; but as the state of facts was not annexed to the transcript of the record, this court could not take notice of it. tion it, to send certificates of the fact, and "signify their approval, and authorize it to be carried into effect"-and it is added, "should you object, the contract will be carried on as before," that is, the original contract. It is further found by the case, that the agreement the It appears to us, that, taking this evidence together, it was not a conceded point, but a matter of controversy between the parties, whether the agreement was obligatory upon United States, and had become absolute by the assent of all the persons who had authority to perfect the same. This being so, it was a matter of fact to be decided by the jury, and the charge of the court was erroneous in withdrawing it from the consideration of the jury. For this reason it is our opinion that the judgment of the Circuit Court was erroneous, and ought to be reversed, and the cause be remanded, with directions to award a tenire facias de novo.1 [BILL OF EXCHANGE AND PROMISSORY NOTE. SALE WITH WARRANTY.] THORNTON, Plaintiff in Error, v. WYNN, Defendant in Error. ment mentioned in the declaration, and in order to dispense with the proof of the ordinary steps of diligence in presenting and demanding the note of the drawer, and giving notice to the indorser, the plaintiff offered evidence to prove that a few weeks before the institution of this suit the note in question was presented to the An unconditional promise, by the indorser of a defendant, who, being informed that Miller, bill or note, to pay it, or the acknowledgment of the drawer, had not paid the note, said "he his liability after knowledge of his discharge from knew Miller had not, and that Miller was not his responsibility by the laches of the holder, amounted to an implied waiver of due notice of to pay it; that it was the concern of the dea demand from the drawee, acceptor, or maker. fendant alone, and Miller had nothing to do Upon a sale with a warranty of soundness, or with it; that the note had been given for where, by the special terms of the contract, the vendee is at liberty to return the article sold, an part of the purchase money of a certain raceoffer to return it is equivalent to an offer accepted horse called Rattler, and that the defendant by the vendor, and the contract being thereby re- offered to take up the said note if the plaintscinded, it is a defense to an action for the pur-iff's agent would give time, and receive other chase money, brought by the vendor, and will entitle the vendee to recover it back if it has been notes mentioned in payment:" to the admission paid. and competency of which evidence the defendSo, if the sale is absolute, and the vendor after-ant objected; but the court overruled the objecwards consent unconditionally to take back the article, the consequences are the same. tion, and *admitted the evidence as [*185 But if the sale be absolute, and there be no sub-competent to support this action, without any sequent consent to take back the article, the con- further proof of demand upon the drawer or tract remains open, and the vendee must resort to his action upon the warranty, unless it be proved notice to the indorser. that the vendor knew of the unsoundness of the article, and the vendee tendered a return of it within a reasonable time. 184*] *THIS cause was argued by Mr. C. C. Lee for the plaintiff in error, and by Mr. Worthington for the defendant in error. Mr. Justice WASHINGTON delivered the opinion of the court: That the said evidence being so admitted by the court, the defendant offered evidence to prove that the said note was given for part of the purchase money of the said race-horse, then celebrated for his performances on the turf, sold by the plaintiff to the defendant, and the said Miller, the drawer of the note, for $3,000, of which $2,000 had been paid; that the plaintiff, at the time of so selling this horse, warranted him sound, and declared him capable of beating any horse in the United States, and recommended the purchasers to match him against a celebrated race-horse in New York, called Eclipse; that he also gave a representation of his pedigree, which he described as unexceptionable, and promised to procure his pedigree and send it to the defendant. And the defendant then offered evidence to prove At the trial of the cause upon the general is that the said horse, at the time of the said sale, sue, the defendant below took two exceptions was utterly unsound, and broken down, and to the opinion of the court which are to the had been broken down whilst in the plaintiff's following effect: The first states that the possession, and was reputed and proven by plaintiff gave in evidence the note and indorse-persons in the neighborhood of the plaintiff, This was an action brought by the defendant in error against the plaintiff in error, in the Circuit Court for the District of Columbia and county of Washington, upon a promissory note given by one Miller to Thornton, and by him indorsed to Wynn. The declaration contains a count upon the note, and also the common counts for money laid out and expended, and for money had and received. 1-2 H. Bl. 609; 1 Moore's Rep. C. P. 535;3 Camp. 57; | 11 East's Rep. 114; 4 Dall. 109; 4 Taunt. 93;1 Esp. 261; 6 East's Rep. 110; 1 H. Bl. 17. 2.-1 Term Rep. 405; 2 Term Rep. 703: 1 Esp. 302; 12 East's Rep. 171; 4 Cranch, 141; 2 Johns. Rep. 1; NOTE. Promise by indorser to pay, waiver of notice. An unconditional promise by the drawer or indorser of a bill or note to pay it, made after knowledge of his discharge from responsibility by the laches of the holder, amounts to a waiver of due notice of a demand from the drawee, acceptor, or maker. Sigerson v. Matthews, 20 How. 496; Morris v. Gardner, 1 Cranch, C. C. 215; Perry v. Rhodes, 2 Cranch, C. C. 37; Lundie v. Robertson, 7 East, 231: Hopes v. Alden, 6 East, 16; Porter v. Rayworth, 13 East, 417; Story, Prom. Notes, sec. 364; 2 Daniels' Neg. Instr., sec. 1093. So, an acknowledgment after maturity of the indorser's liability to pay, or a promise to pay the note or bill, or to see it paid, or an acknowledgment that it must be paid, with knowledge of the laches of the holder, is a waiver of notice, and renders the indorser liable. Duryee v. Denison, 5 John. 248; Yeager v. Folwell, 13 Wall. 12; Reynolds v. Douglass, post, 497; Bank of U. S. v. Lyman, 20 Vt. 666; Read v. Wilkinson, 2 Wash. C. C. 514; Sherman v. Clark, 2 McLean, 91; Martin v. Winslow, 2 Mas. 41; Thornton v. Stoddert, 1 Cranch, C. C. 534; Good v. Spring, 7 Mass. Rep. 449; 5 Mass. Rep. 170; 11 Johns. Rep. 180; Peake's N. P. Cas. 203; 1 Taunt. 12; 2 Term Rep. 713; 15 East's Rep. 275; Cowp. 888; Dougl. 24; 1 Term Rep. 133; 7 East's Rep. 274; 2 Taunt. 2; 14Johns. Rep. 416; 2 East's Rep. 320. 2 Cranch, C. C. 172; Cassaway v. Jones, 2 Cranch, C. C. 334; Sigerson v. Matthews, 20 How. 496; Salisbury v. Renick, 44 Mo. 554; Hughes v. Bowen, 15 Iowa, 446; Spurlock v. Union Bank. 4 Humph. 336; Hazard v. White, 26 Ark. 280; Matthews v. Allen, 16 Gray, 594; Smith v. Curlee, 59 Ill. 221; Story on Notes, 274, 275; 1 Parsons' N. & B. 594; Edwards on Bills, 650, 651, 652; Daniels on Neg. Instr., sec. 1147; Ross v. Hurd, 71 N. Y. 18; Harrison v. Bailey, 99 Mass. 620. Due presentment for payment and notice of nonpayment are conditions precedent to the liability of an indorser of a promissory note. Cayuga County Bank v. Warden, 1 Comst. N. Y. 413; S. C., 2 Seld. N. Y. 19. By omitting either of these acts, the holder loses his right of recourse to the indorser, who is thereby discharged. Spies v. Gilmore, 1 Comst. 321. These omissions of the holder may, however, be waived by a subsequent promise to pay the bill or note, if the promise is made with knowledge on the part of the drawer or indorser, that he has been discharged by the neglect of the holder. Tebbetts v. Dowd, 23 Wend. 379; Cram v. Sher As to the first, the counsel treated the note throughout as an accommodation note, and submitted to the decision of this court the ques tion, whether the indorser of such a note was entitled to call for proof of a demand of pay ment of the maker, and notice to himself? who afterwards communicated the same to the | for his accommodation; and, 2d. As amounting purchaser; and was wholly unfit for, and in- to a promise to pay the note, or at least to an capable of, the action and fatigue necessary to admission by Thornton of his liability to pay a race-horse; and that the plaintiff had wholly it, and of the right of the plaintiff to resort to failed to procure and furnish the pedigree of him, whether it was made solely for his accomthe horse as he had agreed, and that a pedigree modation, or was given for value in the ordiwas an essential term in the purchase of the nary course of trade. horse, or ordinarily is so in the purchase of such horses, without which this horse was worth nothing; and that the said Miller, as soon as it had been ascertained by repeated trials that the horse was incurably unsound, offered to return him to the plaintiff, who refused to take him back, although the former offered to lose what he had already paid for the horse, which offer was made after the note fell due. Whereupon the court instructed the jury, at the prayer of the plaintiff, that if they should be of opinion, from the said evidence, that the said horse was, at the time of the said sale, utterly unsound and broken down, and had been broken down whilst in the plaintiff's possession, and was wholly unfit for, and incapable of, the action 186*] and fatigue necessary to a race horse, but that the said facts were not known to the plaintiff at the time of the said sale, the said facts are not a sufficient defense in this action to prevent the plaintiff from recovering. Upon these instructions of the court, the jury found a verdict for the plaintiff, and the cause now comes before this court upon a writ of error. This bill of exceptions presents two questions for the decision of this court. The first is, whether the evidence offered by the plaintiff, and admitted by the court, dispensed with the necessity of proving a demand of payment of the maker of the note, and due notice to Thornton of non-payment; and, secondly, whether the court below erred or not, in stating to the jury that the alleged breach of the warranty of the horse, if proved to their satis faction, was not a sufficient defense in this action to prevent the plaintiff from recovering, unless the facts stated in the bill of exceptions were known to the plaintiff at the time of the sale. In the argument of the first question, the counsel on both sides considered the evidence offered by the plaintiff as presenting a double aspect. 1st. As authorizing a conclusion, in point of fact, that the note of hand on which the suit is brought, was made and passed to Thornton without consideration, and merely burne, 14 Me. 48; Martin v. Ingersoll, 8 Pick; Beck v. Thompson, 4 Harr. & J. 531; Farrington v. Brown, 7 N. H. 271; Porter v. Hadenpuyl, 9 Mich. 11; Blodgett v. Durgin, 32 Vt. 361: Robbins v. Pinckhard, 5 Sm. & Marsh. 51; Moore v. Tucker, 3 Ired. 347; Tobey v. Berly, 26 111. 426. | Whether this question was ever raised in the court below, or in what manner it was there treated, does not appear from the bill of exceptions. It is possible that that court may have intended nothing more by their direction to the jury than to sanction the admissibility of the evidence, and its sufficiency to authorize a verdict for the plaintiff, *without other [*187 proof of demand and notice, provided the jury should be of opinion that it warranted the conclusion that the note was given without consideration. But such is not the language of the court as stated in the bill of exceptions. The jury were informed that the evidence was competent to support the action without such further proof of demand and notice, without leaving the inference of fact that the note was given without consideration to be drawn by the jury. Had the court distinctly stated to the jury that this was such a note, and, therefore, that further proof of demand and notice was unnecessary, the incorrectness of the direction could have been doubted by no person, since the court would, in that case, have inferred a fact from the evidence, which it was competent to the jury alone to do. And yet it seems difficult to distinguish the supposed case from the one really presented by the bill of exceptions, upon the hypothesis that the court below de cided anything as to the particular character of this note, since it is very obvious that no question of fact was submitted to the consideration of the jury. It is, therefore, due from this court to the one whose decision we are revising, to conclude, that that decision did not proceed upon the assumption that this was a note drawn for the accommodation of the indorser. It remains to be considered whether the direction was correct upon the other aspect of the evidence. It is now well settled as a principle of the mand, and does not dispense with the demand itself. Backus v. Shipherd, 11 Wend. 629; Buchanan v. Marshall, 22 Vt. 561; Drinkwater v. Tebbits, 17 Me. 16; Wait's Actions and Defenses, 635; Low v. Howard, 11 Cush. 268. But nothing short of the clearest assent, express or implied, will amount to a waiver. Oswego Banking due presentment and giving notice, is an indisv. Knower, Hill & Denio, 122. Defendant's knowledge that he had not received regular notice may be inferred, as a fact, from the promise under the attending circumstances, without requiring clear and affirmative proof of knowledge. Tebbetts v. Dowd, 23 Wend. 379, and cases cited; Abbott's Trial Ev. 436; Meyer v. Hibsher, 47 N. Y. 273. A promise which is made in ignorance of the fact that no notice has been given, will not be sufficient. Jones v. Savage, 6 Wend. 658; Otis v. Hussey, 3 N. H. 346; Kennon v. Mckea, 7 Port. Ala. 175; Fleming v. McClure, 1 Brev. 428; Hunt v. Wadleigh, 26 Me. 271; Hunter v. Hook, 64 Barb. 468. A waiver of notice of demand is no waiver of de | Knowledge, on the part of the drawer or indorser, that the holder has been in default, in not makpensable element of the waiver, according to the American text-writers on the subject, and the great body of the adjudicated cases. Ford v. Dallam, 3 Cold. 67; Ticknor v. Roberts, 11 La. 14; Plum v. Bidwell, 2 La. An. 43; Walker v. Rogers, 40 Ill. 278; Van Wickle v. Downing, 19 La. An. 83; Barkerville v. Brown, 7 N. H. 271; Gawtry v. Doane, 48 Barb. 148; U. S. Bank v. Southard, 2 Harr. 473: Barkalow v. Johnson, 1 Harr. 397; Bank of U. S. v. Leathers, 10 B. Mon. 64; Walker v. Rodgers, 39 III. 279; Cheshire v. Taylor, 29 Ia. 492; Salisbury v. Renick, 44 Mo. 454; Newberry v. Trowbridge, 13 Mich. 264; Arnold v. Dresser, 8 Allen, 435; Kelley v. Brown, 5 Gray, 108: 1 Parsons N. & B. 601; Story on Bills, sec. 320; 2 Daniels' Neg. Instr., sec. 1149. resort to him, if, in point of fact, he had been guilty of such laches as would discharge him in point of law. For anything that appeared to the court below from the evidence stated in the bill of exceptions, the admissions of the defendant may have been made upon the presumption that the holder had done all that the law required of him in order to charge the indorser. That due notice was not given to the defendant he could not fail to know; but that a regular demand of the maker of the note could not be inferred by the court from the admissions of the defendant. For the reasons above stated, the judgment of the court below must be reversed, and the cause remanded for a new trial. law merchant, that an unconditional promise | intended to admit the right of the plaintiff to by the drawer or indorser of a bill, to pay it, after full knowledge of all the circumstances necessary to apprise him of his discharge from his responsibility by the laches of the holder, amounts to an implied waiver of due notice of a demand of the drawer or acceptor, and dispenses with the necessity of proving it. Such are the cases of Borrodaile v. Lowe (4 Taunt., 93), Donaldson v. Mears (4 Dall., 109), and others which need not be cited. So if, with the knowledge of these circumstances, he answer, that the bill "must be paid," "that when he comes to town he would set the matter right," that his affairs were then deranged, but that he would be glad to pay it as soon as his accounts with his agents was settled," or that he would see it paid," or if he pay a part 188*] of the bill; in all *these cases it has been decided that proof of regular notice is dispensed with. (2 Term Rep., 713; Bull. N. P., 276: 2 Campb., 188; 6 East, 16; 2 Stra., 1246.) The principle upon which these decisions proceed is explained in many of the above cases, and particularly in that of Rogers v. Stephens (2 Term Rep., 713). It is this: that these declarations and acts amount to an admission of the party that the holder has a right to resort to him on the bill, and that he had received no damage for want of notice. (See also Stark. Evid., 272.) The same principle applies with equal force to promissory notes, which, after indorsement, partake of the character of bills of exchange, the indorser being likened to the drawer, and the maker to the acceptor of a bill. The case of Leffingwell & Pearpoint v. White (Johns. Cas., 99), is that of a promissory note, where the endorser, before it became due, stated that the maker had absconded, and that, being secured, he would give a new note, and requested time. The court say that the defendant had admitted his responsibility, treated the note as his own, and negotiated for further time for payment, by which conduct he had waived the necessity of demand of the maker, and notice to himself. Taylor v. Jones (2 Campb., 105), Vaughan v. Fuller (2 Stra., 1246), and Aman v. Bailey (Bull. N. P., 276), were all cases of actions on promissory notes against the indorser. In this case, the defendant below, upon being informed that Miller, the maker of the note, had not paid it, observed, that he knew he had not, and that he was not to pay it; that it was the concern of the defendant alone, and that Miller had nothing to do with it, it having been given for part of the purchase money of a horse. These declarations amounted to an unequivocal admission of the original liability of the defendant to pay the note, and nothing more. It does not necessarily admit the right of the holder to resort to him on the note, and that he had received no damage from the want of notice, unless the jury, to whom the conclusion of the fact from the evidence ought to have been submitted, were satisfied that the defendant was also apprised of the laches of the holder in not making a regular demand of payment of the note, by which he was discharged 189*] *from his responsibility to pay it. The knowledge of this fact formed an indispensa ble part of the plaintiff's case, since without it it cannot fairly be inferred that the defendant But since the second question before mentioned has been distinctly brought to the notice of this court, has been fully argued, and must again be decided by the court below, it be comes necessary that this court should pass an opinion upon it. That question is, whether the alleged breach of the warranty of the horse, the price of which formed part of the consideration of the note, if proved to the satisfaction of the jury, was a sufficient defense in this action to prevent the plaintiff from recovering, unless the facts stated in the bill of exceptions were known to the plaintiff below at the time of the sale. The question is not whether the purchaser of a horse which is warranted sound, has a remedy over against the vendor, upon the warranty, in case it be broken, but whether, in an action against him for the purchase money, he can be permitted to defend himself by proving a breach of the warranty. The cases upon this subject are principally those where the vendee, having executed the contract on his part, by paying the purchase money, brought an action of indebitatus assumpsit against the vendor as for money had and received to his use. But it is perfectly clear that the reasoning of the court in those cases applies with equal force to a case [*190 where the breach of the warranty is set up by the vendee as a defense against an action against him to recover the purchase money. The first case we meet with on this subject, is that of Power v. Wells, of which a very imperfect report is to be seen in a short note in Dougl., 24, and in Cowp. Rep., 818. There the plaintiff gave a horse and 20 guineas to the defendant, for another horse, which he warranted to be sound, but which proved otherwise. The plaintiff offered to return the horse, which was refused, and the plaintiff brought two actions, one for money had and received, to recover back the 20 guineas which he had paid, and an action of trover for the horse, possession of which the plaintiff had delivered to the defendant. The court decided that neither action could be maintained; not the second, because the property had been changed. This case was referred to by the judge who had decided it at Nisi Prius, in the case of Weston v. Downes (Dougl., 23), which soon after came before the court of King's Bench. That was an action for money had and received, and the case was, that the plaintiff had paid a certain sum to the defendant for a pair of horses, which the defendant agreed, at the time, to The court proceeded upon this distinction in deciding the case of Payne v. Whale (7 East's Rep., 274), which followed the one just noticed. The action was to recover back monhim to the plaintiff, which he warranted sound. The plaintiff offered to return the horse upon an allegation of his unsoundness, which the defendant denied, and refused to take him back, but agreed that, if he was in fact unsound, he would take him back, and return the purchase money. The unsoundness was proved at the trial; but the court was of opinion that the action could not be supported, and distinguished this case from the preceding one by observing, that in that the plaintiff had an option, by the original contract, to rescind it on take back, if they were disapproved of, and re- | quent assent by him, the plaintiff may recover turned within a month. They were returned back his whole *money, and then this [*192 accordingly within the stipulated period, and action will lie. But if it be open, the plaintiff's another pair was sent in their stead, without demand is only for damages arising out of the any new agreement. These were likewise re- contract. turned, and accepted by the vendor, and a third pair were sent, which being likewise of fered to be returned, the vendor refused to take them back. Lord Mansfield was against the action, because the contract, being a specialey paid to the defendant for a horse sold by one, the defendant ought to have notice by the declaration that he was sued upon it. Ashhurst, J., was of the same opinion; but added, that if the plaintiff had demanded his money on the return of the first pair of horses, this action would have lain, but that the contract was continued; from which expression nothing more is understood to have been meant than that the contract remained open. The ground upon which Buller, J., thought that the action could not be maintained was, that, by refusing to take back the horses, the defendant had not precluded himself from entering into the nat-event; but here it was no part of the original 191*] ure of the contract, and that, whenever that is open, it must be stated specially. The meaning of these latter expressions is distinctly stated by the court, and particularly by this judge, in the case of Towers v. Barret (1 Term. Rep., 133), which followed next in order of time; that was also an action for money had and received. The money was paid for a horse and chaise, to be returned in case the plaintiff's wife should not approve of them. They were accordingly sent back to the defendant in three days after the sale, and left on his premises against his consent to receive them. Lord Mansfield, Ch. J., and Willis, J., distinguish this case from that of Weston v. Downes, upon the ground that that was an absolute, and this a conditional agreement, which was at an end by the return of the horse and chaise, and was no longer open. Both the judges treat the case as if the vendor had taken back the property, although, in fact, he had not consented to do so. Ashhurst, J., was of opinion that this case would have resembled that of Weston v. Downes if, in that, the plaintiff had returned the horses. It is very clear, from what was said by the same judge in that case, that his meaning in this was, if the plaintiff had returned the first pair of horses, and then demanded his money; for, he adds, that in that case there was an end of the first contract by the plaintiff's taking other pairs, and this constituted a new contract, not made on the terms of the first. But in this case the contract was conditional, and when the horse and chaise were returned, the contract was at an end, and the defendant held the money against conscience. Buller, J., is still more explicit. He says that the defendant, by the contract, had put it in the power of the plaintiff to terminate it, by returning the horse and chaise, and that the plaintiff had no option to refuse to take them back; and that, being bound to receive them, the case was the same as if he had actually accepted them. He adds, that the distinction between those cases where the contract is open, and where it is not, is, that if it be rescinded, either by the original terms of the contract, as in this case, where no act remains to be done by the defendant, or by a subse a certain contract that the horse was to be taken back, and that the subsequent promise amounted to no more than that he would take him back if the warranty were shown to be broken, which still left the question of warranty open for discussion, and then the form of the action ought to give the defendant notice of it by being brought upon the warranty. The case of Lewis v. Congrave (2 Taunt., 2) was precisely like the present, in which the same distinction, and the same principles, were recognized by the judge who tried the cause at Nisi Prius. It was an action on a bill drawn for the price of a horse, which, on the sale of him, was warranted sound, but turned out not to be so. The defendant offered to return the horse, which was refused, and the defendant left him in the plaintiff's stable without his knowledge. The judge decided, that as the plaintiff had refused to take back the horse, the contract of sale was not rescinded, and, consequently, that the defendant must pay the bill, and take his remedy by action for the deceit. But upon a rule to show cause why a new trial should not be granted, the court said, that it was clear the plaintiff knew of the unsoundness of the horse, which was clearly a fraud, and that no man can recover the price of an article sold under a *fraud. See [*193 also the cases of Fortune v. Lingham (2 Campb., 416), and Solomon v. Turner (1 Stark, 51). The result of the above case is this: If, upon a sale with a warranty, or if, by the special terms of the contract, the vendee is at liberty to return the article sold, an offer to return it is equivalent.to an offer accepted by the vendor, and, in that case, the contract is rescinded and at an end, which is a sufficient defense to an action brought by the vendor for the purchase money, or to enable the vendee to maintain an action for money had and received in case the purchase money has been paid. The consequences are the same where the sale is absolute, and the vendor afterwards consents, unconditionally, to take back the property; be cause, in both, the contract is rescinded by the agreement of the parties, and the vendee is well entitled to retain the purchase money in the one case, or to recover it back in the other. But if the sale be absolute, and there be no |