proprietor. Hence the cafe is the fame as where a perfon purchafes a
garment, and, after having out it, difcovers a defect in it; in which
cafe the purchafer is not entitled to return the garment upon the feller’s
■ hands, although he [the feller] had authorized him to cut it down.—
In ihort, i f the articles prove defective only in a fmall part, the' fale is
valid, upon a favourable conftrudtion, becaufe it is incident to walnuts,
and fuch other articles, to be bad in a fmall part; (by a fmall
part is meant what is commonly the cafe, fuch as one or two in a
hundred:) but if, on the other hand, a great part prove bad, the fale
is invalid, and the purchafer is entitled to a complete reftitution of the
purchafe-money; becaufe in this cafe the feller has united together
entities and non-entities with regard to value; and the cafe is therefore
the fame as i f a perfon were to fell together freemen and
fiaves.
Curchafa L a perfon, having purchafed a Have, lhould fell him to another,
felling what and that other return the Have to him on difcovering him to be de-
chafed,which fedtive, and he agree to receive him back, on the Kdzee's iffuing a
remmedK)8 decree t0 |H | effect, founded on the proof of the defedt by witneffes,
him in con- -or on the refufal of the f rit purchafer to confirm his denial upon oath,
defta.Ce °f 3 — in that cafe the firft purchafer is entitled to return the Have to the
feller; becaufe, although it be not lawful for a purchafer, after the
fale of the article on his part, to return it to.the feller, Hill in this cafe,
the fecond fale having been annulled by the Kdzee, it becomes the fame
as if no fuch fale had ever exifted.
O b j e c t io n .— As the firft purchafer denied the defedt, and obliged
the fecond purchafer to eftablifh the fadt by witnefles, it would
appear that he is not entitled to return the Have; becaufe, if he ground
his right on the defedt, he is guilty of prevarication, fince he firft denies
the defedt, and then afferts it.
R e p l y .— The difproof of the denial by the Kdzee's decree,
founded on the proof of the fadt by witneffes, renders fuch denial of
no validity in law; hence the apparent contrariety of his denial and
aflertion
affertion is reconciled, and as the firft fale continues in force, and the
defedt is at the fame time proved, it follows that he is entitled- to return
the .Have to the feller.— If, therefore, he chufe to return him, it
is a valid rejedtion.:— but if he lhould, rather chjqfe to keep him, the
fale continues in force.— It is othervyjfe where an agent fo r fade dif-
pofesof an article, and; the purchafer returns it to the agent in. coipfe-
quence of a defedt for this, is in reality a return to the cqyftityent -,
and the agent is not required to return the article to his eonftituent,
becaufe, in this cafe, there is. only one fide, whereas in the. cafe in
queftion there are two, whence, the diffplution of the fecond fale dpes
not difiblve the firft.— In fhort, if the fecond purchafer, on the discovery
of a, defedt, return the Have, and the firft purchafer receive
him back, in confequence of a. decree of the Kdzee-, he [the firft purchafer]
is, in that cafe entitled to return him to the original feller.-^If,
on the other hand, the firft purchafer agree to receive him back without
a decree of the Kdzee., be in that cafe is not entitled to return him
to the original feller, becaufe, although the fecond fale be annulled
with regard to himfelf and the fecond purchafer, ftill it is equivalent
to a fâle de novo with, regard to all other perfons ; and the original feller
is another perfon.— It is recorded, in the Jama Sagheer, that when the
fubjedt of the fale is returned to the firft purchafer, without a decree of
the Kdzee, on account of fuch- a defect as. very rarely happens, ^fucb
as an additional finger, for inftance,) the firft purchafer has not the
power of returning it to .the original feller ; ajid .this (as our author remarks)
is a direct proof that the effedt is the fame in both cafes ; that
is, whether the defedt be of fuch a nature as may have recently happened,
or fuch as never recently happens.—4 n fome traditions it is
mentioned, that in the latter cafe the purchafer may return the
fubjedt of fale to the original feller, as there is then a certainty
that fuch defedt .did exift whilft in the hands of the original
feller.
V ol. II. H h h If