BREACEl OF WARRANTY. ' 169. 



The right to retiirn a horse sold with a Warranty which 

 proves incorrect, is not taken away by the fact that the 

 buyer, before removing him, might have found out that 

 the Warranty was untrue, or by the fact that the Horse 

 whilst it is in the buyer's possession is injui-ed without his 

 default, by an accident arising from a defect inherent in 

 the Horse (f). Thus, in Head v. Tattersall (n), the plaintiff Head v. Tat- 

 bought a Mare, warranted to have been hunted with ^''^'^"'^^• 

 certain packs of hounds. According to the terms of the 

 sale, the Mare, if objected to, was to be retiu-ned within a 

 specified time. The plaintiff paid for the Mare, but before 

 removing her from the defendant's establishment he was 

 informed by some person that the Warranty was incorrect. 

 The Mare, whilst she was being taken away by the plain- 

 tiff's groom, became restive and received serious injury. 

 The plaintiff retm^ned her within the specified time. The 

 Warranty was in fact untrue. The plaintiff brought an 

 action to recover the price of the Mare, and it was held 

 that nothing that had happened took away the plaintifi''s 

 right to return the Mare, and that he was entitled to 

 succeed. 



"Wliere a Horse is bought on condition that he is to bo Or unsuit- 

 retm-ned if he does not suit, as the contract for sale is not ^^^^* 

 absolute, the Horse may be retm-ned, and an action 

 brought for the price, if paid, as Money had and received 

 to the use of the plaintiff (.?•). But the purchaser must 

 not keep him longer than is necessary for trial, nor ex- 

 ercise the dominion of an owner over him, as by selling 

 him (//). Such an action was brought in the following- 

 case, to recover ten guineas which the plaintiff had paid 

 to the defendant for a one Horse Chaise and Harness, on 

 condition that it was to be returned in case the plaintiff's 

 wife should not approve of it, paying 3s. Qd. per diem for 

 the hire of it. This contract was made by the defendant's 

 servant, but his master did not object to it at the time. 

 The plaintiff's wife not approving of the Chaise, it was 

 sent back at the expiration of three days, and left on the 

 defendant's premises, ^^ithout any consent on his part to 

 receive it ; the hire of 3s. Qd. jjer diem was tendered at 

 the same time, which the defendant refused, as w'ell as to 

 return the money. A verdict was found for the plaintiff. 



(;:) Head V. Tattersall, L. R., 7 Ex. 4 ; 25 L. T., N. S. 631. 



Ex. 7 ; 41 L. J., Ex. 4 ; 25 L. T., (x) Towers v. Barrett, 1 T. R. 133. 



N. S. 631. (//) Street v. Blaij, 2 B. & Ad. 



{a) L. R., 7 Ex. 7; 41 L. J., 456. 



