DAMAGES. 207 



On the 27th tho action was commenced; and on the 

 16th of September, the plaintiff (having informed the 

 defendant of his intention to do so) sold the Horse hy 

 auction for twenty-three guineas. The action was brought 

 to recover the difference between that sum and 40/., the 

 price given by the plaintiff, and hkewise 9/. 176'. for the 

 Horse's Keep at Livery till the second sale. 



For the defendant it was insisted that the Horse was 

 not Unsound, and consecj^uently that nothing was due on 

 account either of the Price or the Keep. 



Mr. Justice Taunton, in leaving the case to the Jury, 

 said, " That in his opinion there had been a sufficient 

 Tender of the Horse back to tlie defendant ; that if the 

 Horse was Unsound, it was the defendant's duty to pro- 

 vide for the charges of standing at Livery ; and therefore 

 the plaintiff, in that case, would be entitled to the 9/. 17.s. 

 claimed for Keep." The Jury found a verdict for the 

 plaintiff for the whole sum demanded. A rule was obtained 

 to show cause why there should not be a new trial, or why 

 the verdict should not be reduced in respect of the Keep ; 

 the rule, however, was discharged. 



And Lord Donman, 0. J., said, "I can conceive no case Seller liable 

 where a purchaser returns a Horse, in which the seller may foi" reasonable 

 not be liable for some Keep. The law upon the subject is ^^^' 

 thus laid down in Mr. Selwyn's Law of Nisi Prius(/). 

 As soon as the Unsoundness is discovered, the buyer should 

 immediately tender the Horse to the seller ; and, if he re- 

 fuses to take him back, sell the Horse as soon as possible 

 for the best price that can be procm-ed ; for the purchaser 

 is entitled to recover for the Keep of the Horse for such 

 time only as would be required to resell the Horse to the 

 best advantage." 



" Whether the time of keeping be reasonable or not, is What is 

 a question for the Jury. But here the defendant alto- reasonable. 

 gether denied his liability. It is true that counsel would 

 have been under a disadvantage in resting the case on two 

 different grounds ; but that consideration cannot vary the 

 course which must be pursued in trying a cause. If the 

 defendant's counsel meant to rely upon the unreasonable- 

 ness of the time, he should have shown grounds for insisting 

 on that point, and taken the opinion of the Jury upon 

 it"(i7). 



(/) Selwyn's 'N. P. 12th ed. vol. (.9) CheHhrmau v. Lamb, 2 A. & 



1, p. G.')G, tit. Deceit, I. 2. E. 129. 



