in which cafe
theconliitu-
ent is not obliged
to receive
it back
without zfuit.
I f the defeft
be original,
the conflitu*
ent muft rer
ceive back
the article
fequence of a decree founded on his acknowledgment, the fale is abfo-
lute upon the agent, as acknowledgment is a weak proof, (that is,,
does not effedt any other than the acknowledger;) and the agent does
not aft from neceffity, in this cafe, as he had it in his power either to
have remained filent, or to have refuted taking an oath.— The agent,
however, may afterwards litigate the matter with his conftituent, and
oblige him to take back the Have on his eftablithing proof by evidence,,
or on the conftituent’ s refufal to take an oath.— It is otherwife where
the purchafer returns the flave to the agent, on his acknowledgment,
without a decree, for in this cafe he has no grounds for a fuit
againft the conftituent to compel him to retake the {lave; becaufe this-
return is a fale de nave with refpeft to a third perfon, who is neither
the purchafer nor fe lle r ; and the confiituent muft be this third perfon,.
fince none but the agent can be confidered as the feller.— The agent,
therefore, in receiving back the flave from the purchafer to whom he
had fold him, does, as it were, repurchafe him ; and hence he is debarred
from returning him to the conftituent, or litigating the matter
with him.— A return of the fubjedt of the fale, on the other hand, in-
virtue o f a decree o f the K a z e e founded on an acknowledgment o f the
feller, is An annulment o f the contract o f fale, and not a faie de novo\
becaufe although the authority of the Kazee be general, yet acknowledgment
is but weak proof.— In this cafe, therefore, as the contract of
fale is. annulled, the agent is entitled to fue the conftituent, in order
to compel him to receive back the flave: but as his acknowledgment
is infufficient proof, the conftituent cannot be compelled, to. receive
back the {lave without proof by evidence * .
If, on the other hand, the defect on account of which the purchafer
has returned the Have be of fuch a nature as cannot be fuperve-
nient, (fuch as a fuperfuous finger, for inftance,); and the return be
made to the agent in confequence of his acknowledgment of the defedt,
Meaning, p r o f to the exiflence o f the defect.
feet, without any decree of the Kdzee,— in this cafe, according to one fr.°'nl'isag?nt
■ tradition,,the conftituent is obliged, without the neceffity of eftabliffi- Ration, whe-
a fait againft him, to receive back the Have; as the return is of a . tUmed bVthe
aeterminate nature, and therefore the parties did of themfelves what Pur^1'afer ln L coniequencc
the Kdzee:would have done.— According to many traditions,.however, of his [the
the agent has here no right to fue the conftituent, in order to make kfowiedge-
hifn receive back the Have, for the reafon already Hated, that “ the ment<01 not-
“ purchafer’s returning the article to the agent, in confequence of his
“ acknowledgment, is a lale de novo, with re{pedt to others than
“ the parties themfelves; and the conftituent is not a party.”— In
regard to. the aflertion contained in the firft tradition, that “ the re-
“ turn of the fubjedt of the fale was a thing of a determinate, nature,”
it is not admitted; becaufe the right of the purchafer, at firft, waS
that the fubjedt o f the fale ffiould be in a complete and perfedt ftate;
and failing of this, his right then relates to a return of the fubjedt;.,
and afterwards it; Ihifts, and relates to a reftitution of the exadt quantity
of lofs he.may have fuftained in the price.— In this cafe, therefore,.
the return, of the fubjedt of the fale is flot. a thing of a determinate-
nature.
If the conftituent and agent difagree, the one affertlng that ‘ ‘ he had A conftituent •
“ ordered the other to fell his Have in exchange for ready money, and dited^dtlT"
“ that he had neverthelefs fold him oncredit,”—andtheother, that “ he cefpefttohis
“ [the conitituent] had merely defired him to fe ll him, and that he had...
“ faid nothing more,”—in this cafe the aflertion of the conflituent muft
be creditedbecaufe he is the perfon from whom , the order iflued;
and no argument exifts of this order being abfolut, agency being in its
original nature relative and reflritled; whence it is that if one perfon
ffiould fay to another, “ I have made you agent with regard to my
property;” the agent would not be permitted to do as he pleafed
with regard to the property, but would be reftrifted entirely to the
prefervation of it.—If, on the other hand, a dilagreement fimilar to
that