IN SEARCH OF A HORSE. 381 



standing at livery, the plaintiff gave the defendant's 

 attorney notice that he might go and take the horse, 

 but made no offer to pay for its keep ; the liveryman 

 refused to deliver it, till its keep was paid. Mans- 

 field, C. J. : " The contract being broken, the de- 

 fendant must give back the money, and the plaintiff 

 must return the horse ; but unless the plaintiff has 

 tendered him, he cannot recover for the keep, be- 

 cause it was not the defendant's fault that plaintiff 

 kept him. When the warranty was broken, the 

 plaintiff might instantly have sold the horse for what 

 he could get, and might have recovered the residue 

 of the price in damages." 



In Chesterman v. Lamb, 4 Nevile and Manning, 

 195, already mentioned, it was held that " where a 

 horse warranted sound, turns out to be unsound, and 

 is, after notice to the seller, re-sold by the purchaser, 

 the latter may recover not only the difference of 

 price between the first and second sales, but also the 

 keep of the horse for a reasonable time ; but the 

 question whether the horse has been kept an unrea- 

 sonable time before the re-sale, is a question for the 

 jury ; and if the seller rests his defence on the sound- 

 ness of the horse, and does not request the judge to 

 33 



