60& INDEX.

WARRANTY—Contitlued.

4. But if a party undertakes to make a direct representation of a fact,
even though he be mistaken as to the fact, if the other party is in-
duced to act upon such representation, equity will relieve against the
act, equally as if it had been a wilful and false assertion, for the in-
jury is the same. 16.

5. Though the means of correct information be equally open to both par-
ties, yet, if either of them does or says any thing tending to impose
upon the other, and he is imposed upon, to his injury, the contract will
aot be allowed to stand. Ib.

6. In the caae of a breach of warranty, the vendee may sue upon it, with-
out 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 state quo, and sue for and recover back the purchase money,
in an action for money had and received. Ib.

7. What is a reasonable time, within which the purchaser must rescind
the contract, by a return of, or an 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 unsoundness is discovered, and
not from the date of the contract. Ib.

8. An offer to return negroes found to be unsound, made within a month
after the sale, and as soon as their unsoundness was discovered, was
held to be within a reasonable time. Ib.

9. An offer to return chattels within a reasonable time, is equivalent in its

effect upon the remedy, to an offer accepted by the seller. Ib.
See EVIDENCE, 5.
WASTE.

See JURISDICTION, 10 to 13.

MORTGAGOR AND MORTGAGEE, 4, 5.

WIFE'S RIGHT TO PERSONALTY.

1. It is not in the power of a husband in this state, by will, to deprive his
widow of that portion of his personal estate to which she is entitled by
law. Hays vs. Henry, 337.

2. Yet there can be no doubt of his right to dispose, absolutely, of this de-
scription of property during his life, independently of the concurrence
and exonerated from any claim of the wife, provided the transaction
b» not colorable merely, and be unattended with circumstances indic-
ative of fraud upon the rights of the wife. It.
See FiiATOUi.Ewr CONVETAKCES, 1.
WILL AND TESTAMENT.

1. If the interest which a creditor takes by a will, is not co-extensive with,
or of the same nature of that to which he is entitled from the testator
as his debtor, he will be entitled to both. Waters vs. Howard, 112.

2. The degree of intention necessary to raise a case of election must plain-
ly appear upon the face of the will, but the court is not to disregard
what amounts to a moral certainty of the intention of the testator. Ib.

3. Though evidence debars the will, will not be admitted to prove or dis-