]5 REACH OF WATIUANTY. 171 



prudent for the Buyer, iu an ordinary case, to tender tlie should tender 

 Horse back to the Seller immediately on discovering sucli *^^ Horse. 

 Breach {g) ; and so entitle himself to be repaid the ex- 

 penses he has been put to in keeping him {h) ; and if the 

 Seller receive him back there Avili l)e a mutual rescission of 

 the original contract (/'). 



But where the Seller refuses to take back the Horse, Sale after 

 he should be sold as soon as possible for the best price that ^^ ^^' 

 can be procured (./). And, perhaps, the best coin-se to be 

 pm'suecl under such circumstances is to sell him by public 

 auction, for in that way tlie true market value, which is the 

 proper measure of damages, can best be discovered [k) . 



If the buyer does not wish to tender the Horse, he Notice in- 

 should at any rate give Notice of the Breach of Warranty, *l*f^'^ °* ^^^' 

 because the not giving Notice Avill be strong presumption 

 against the Buj'er that the Horse, at the time of sale, had • 

 not the defect complained of, and will make the proof on 

 his part much more difficidt (/). And unless the Breach 

 in such case is clearly established, the Jury will naturally 

 suppose that the Horse corresponded with the War- 

 ranty {m). 



The longer the time before Notice, or bringing an Length of 

 action after discovering the Breach of Warranty, the ^otict!^''''*' 

 greater will be the dithculty in making out a good case 

 to a Jmy (/). But where the Breach of Warranty can 

 be clearly proved, the length of time before Notice does 

 not appear material. For the Comt of King's Bench, iu 

 a case where an Unsound Horse Avas sold with a Warranty 

 of Soundness, decided that the Buyer might maintain an 

 action on the Warranty, although shortly after the sale 

 he had discovered the Unsoundness, and, without giving 

 Notice of that fact to the Seller, had kept and used the 

 Horse for nine months as his oa\ti, dmung which period ho 

 had given him physic, and used otlier means to cure him ; 

 ho had also cut the Horse's tail. Tlie case had been tried 

 at the Hereford Assizes before Mr. Justice Parke, who di- 

 rected a nonsuit. However, in the ensuing term a rule was 

 obtained to set that nonsuit aside, and for new trial, the 



((/) Selwyn's N. P. 8th ed., vol. i. (./) Casuxll v. Coare, 1 Taimt. 



p. 657, tit. Deceit, I. 2, cited in 5GG. 



Chcstevman v. Lamb, 2 A. & E. 129. {_/■) Bbinle v. Earc, 7 C. B., N. S. 



(/() Chrslcrman v. Lanih, 2 A. & 145. 



E. 129 ; Cross v. BartlcU, 3 M. & P. (0 Fielder y. Slarlde, 1 H. Bla. 17. 



542. ('«) Poulton v. Lattimore, 9 B. & 



(i) Weston. V. Dowiics, Doug. 24. C. 265. 



