382 THE ADVENTUEES OF A GENTLEMAN 



leave the question of time to the jury, the court will 

 not, upon motion for a new trial, look into the evi- 

 dence upon this point." In this case, the sale took 

 place on the 26th of June. On the 9th of July the 

 lameness was discovered; on the 25th of July the 

 horse was sent to Osborne's for sale, and notice 

 given to the defendant, with directions to remove it ; 

 and on the 27th of July the action was commenced. 

 On the 6th of September the defendant was informed 

 that it was intended to sell the horse. It was sold 

 on the 16th of September, and the keep of the horse 

 amounted to £9. 16s., for which, and the difference 

 in price and costs of sale, amounting altogether to 

 ,£28. 10s., the action was brought. 



The case of M'Kenzie v. Hancock, hereafter 

 quoted, is an important case to collate with Chester- 

 man V. Lamb. 



And in 2 Campbell, 82, the judge remarks, "I re- 

 member when it was held, that an action could not 

 be maintained upon the warranty without an offer to 

 return the horse. That doctrine is now exploded, 

 (Fielder v. Starkin, 1 H. B. 17 ; Curtis v. Hanney, 

 3 Espin. Cas. 82 ;) but still, unless the defendant re- 

 fuses to take back the horse, the plaintiff cannot com- 



