in o- this he a deviation from the bargain:— contrary to conditional options,
or options o f infpeflian, for the rxiftencc of fuch conditions is a bar
to the fulfilment of. the bargain, aiotwithllanding feizin .may have
taken place.
In the p»r- I f a perlou purebate articles cftimable by weight, or by tneafure o f
t ic k s °ofl capacity, (fuch as filvcr or wheat, for inftance,) and he afterwards
or difeover the article to be in part defective, he is entitled, in that cafe,
cf*aïy, thé either to return the whole to the feller, or to retain the whole ; but
prove''lie- he has not the power of returning the defective part only, becaufe the
b^returncJ* uuities of articles eitimable by weight or by meafure of capacity are
the letter, .contidered as forming one individual, provided they be all of the
fame ./beats. Some have alleged that this proceeds on a luppofition of
■ the articles in queftion being contained in one veflel; but that, if they
be contained in two, the one containing the defective article may be
returned, and the other retained.
'If apart of
fuch articles
pro « the
property of
another, itill
the purchafer
is not at liberty
to return
the remainder.
I f , after the purchafe of articles eftimable hy weight, or meafure-
ment of capacity, a part of them fhould prove to be the. property of
another, the purchafer is not in that cafe allowed to return the remainder
to the feller; becaufe no injury can refult to him from his
beinc obliged to keep them, as articles of this nature may be feparated
. and divided without fuflaining any blemifh, and the proof o f part of
the fubject of the fale having been the property o f another is no impediment
to the completion of the contradt, fince that depends on the
content of theyW/rr and purchafer, and not of the perfoh who is difeovered
to be the proprietor of a part. This is where pofleffion has
been taken by the purchafer, before a part of the fubjedt is difeovered
-to be the right of another;— for if the right of property of the other
be difeovered previous to the purchafer taking pofleffion, he is, in that
cafe, entitled to return the remainder, fince a deviatiort from the con-
-■ tratl; takes place previous to the completion of the bargain. If the
.articles be not fuch as are eftimable by weight, or meafurement of
capacity,
capacity, but cloth, for inftance, then the purchafer is entitled to return
the remainder to the feller at all events, as divifion and feparation
of the article would, in this inftance, prove an injury to it.
If a perfon purchafe a female Have, and difeover that fhe has an A purchafer,
ulcer or feme other fuch ailment, and apply a remedy to it,— or, if a
perfon purchafe an animal, and difeover it to be defective, and ride upon
it on fome bufinefs of his own,— the application of a remedy in the one making uftof
cafe, or the aft of riding in the other, indicate an acquiefcence in the fcimfcifof the
defetft on the part of the purchafer, and he is therefore not entitled to P0* " °[tr£j
return either the Have or the animal on the plea of an option from the the feller,
difeovery of a defedt. It would be otherwife if he had purchafed the
animal on a condition o f option; for the objedt of fuch condition is an
experimental knowledge, which cannot be obtained but by a trial. If,
moreover, he were to ride upon the animal, not on his own bufinefs,
but merely with an intention of reftoring it to the feller, no inference
could be drawn of his acquiefcence in the defect;— and fo alfo, if he
were to ride upon the animal with an intention of giving it water or
forage-, provided, however, the riding for thefe purpofes be unavoidable,
either becaufe of the animal being unruly and ungovernable, if
not mounted, or becaufe of the purchafer himfelf being incapable of
walking.
If a perfon purchafe and take pofleffion of a Have, not knowing ifapurchafed
that he had formerly, whilft in the pofleffion of the feller, been J 7 r tg~> uiltpy aflmavpeu tfautfiIoenr
of theft, and the theft be afterwards proved, and the flave fuffer am- for a theft
putation for it in the feller’s hands, the purchafer is, in that cafe, en- w;t), the fel-
titled, according to Haneefa, to return him to the feller, and receive
back the whole ‘of the price. According to the two difeiples, the return him
purchafer is ftill to keep pofleffion of the flave, and to receive from w w rim
the feller the difference between the value whilft in his perfedt ftate, price:
and that which he bears after his hand is cut off. The feme difegree- and fo alfo, if
ment fubfifts in cafe of a flave fuffering death whilft in the pofleffion a
of