TAYMON VS. MITCHELL. 501

Being of opinion, therefore, in this case, that the misrepre-
sentation, whether known to be false or not, was of matter ma-
terial to the contract, and upon which the purchaser relied, and
by which he was misled to his injury, the sale must be rescind-
ed, unless the purchaser since the sale has done, or forborne to
do, some act essential to the assertion of his rights, or unless he
is attempting to vindicate them in the wrong forum.

The rule as laid down in the books is, that where goods are
discovered not to answer the order given for them, or to be un-
sound, the purchaser ought in a reasonable time to return them
to the vendor, or to give him notice to take them back, and
thereby rescind the contract, or he will be presumed to acqui-
esce in their quality. And in the case of a breach of warranty,
he may sue upon it without returning the goods; or rescind the
contract by returning them, or the offer to return them in a
reasonable time, so that the seller is placed in statu quo; and
sue for, and recover back the purchase money, in an action for
money had and received. 2 Kent, 480; Franklin and Armfield
vs. Long, 7 G. & J., 407.

What is a reasonable time, within which the purchaser must
rescind the contract, by a return of, or offer to return, the thing
purchased, does not appear to be, stated in the books. The
time, however, is to be computed from the period when the un-
soundness of the chattel is discovered, and not from the date of
the contract.

The bill in the case alleges, that so soon as the purchaser
discovered the slaves to be unsound, that is, about one month
after the sale, and before the death of the infant, he complained
thereof to the vendor, John Mitchell, and required him to can-
cel the sale and take back the negroes, and return the consider-
ation which had been paid for them, which he refused to do.

The proof upon this point is, that in or about one month after
the sale; that is, about the 1st of June, 1848, the complainant
went to the defendant, John Mitchell, to get him to take the,
negroes back, which the defendant said he could not do—the
court would not allow him. Afterwards, on or about the 20(h *
of September, 1848, the complainant again went to the same