502 HIGH COURT OF CHANCERY.

party to get him to take them back. The first offer to return
the negroes, was before the death of the infant, who died in
July of the same year.

There is, to be sure, some contradictory proof on this point,
but the evidence of a witness affirming that he heard a state-
ment made in a conversation between parties, cannot well be
overthrown by proof that another witness was present, who did
not hear the same thing. The witness who proved the fact in
this case, stands altogether free from suspicion, and is unim-
peached as to veracity; and without intending to cast any dis-
credit upon the witness who says he did not hear the remarks,
and who I am well assured, did not hear them, I am satisfied
that they were made, and that such prior offer was made. The
answer of the defendant, John Mitchell, also denies the prior offer
to return the negroes, but I am persuaded Mr. Mitchell must
have forgotten the fact at the time his answer was prepared.

The presumptions in favor of the statement of the witness
Gantt upon this point are so strong, that I considered it my
duty to give credence to it; and hence, I assume, that about
one month from the date of the purchase, the complainant did
offer to return the negroes, and cancel the contract of sale; and
the question then is, whether this offer is sufficient to enable the
court to vacate the sale, and restore the parties to their original
condition.

It cannot, I think, be maintained, that the offer to return the
negroes within the month, was not within a reasonable time;

neither, I presume, can it well be contended, that the purchaser
is under an obligation to institute his action immediately after
the vendor refuses to take the property back and refund the
money. An offer to return the chattels in a reasonable time on
breach of warranty, is equivalent in its effect upon the remedy
to an offer accepted by the seller, and, therefore, assuming in
this case, that the offer was made in June, 1848, I am to treat
the case as if the offer had been accepted, and the negroes ac-
tually taken back by the vendor. If such had been done, there
can be no doubt that the complainant would not have lost his
remedy, by forbearing to resort to legal proceedings, until Oc-