208 PLEADING, EVIDENCE AND DAMAGES. 



Keeping the 111 tlio following case, where an action of Assiimpsii was 

 Horse till brought on the Warranty of a Horse, it appeared that the 

 plaintiff had tendered back the Horse to the defendant, 

 and on his refusal to receive it, had kept it nearly eight 

 weeks at Livery at Reading, till Reading Fair, when it 

 was sold. The plaintiff sought to recover the difference 

 between the price which he had given for the Horse and 

 the sum for which he was sold, and also the expense of his 

 standing at Livery. 



Mr. Justice Coleridge, in summing up, said to the Jury, 

 " With respect to the Keep of the Horse, I am of opinion 

 that if a person has bought a Horse with a Warranty, 

 which has been broken, and he tenders the Horse to the 

 seller, and the seller refuse to receive it back, the buyer is 

 entitled to keep it a reasonable time till he can sell it, and 

 for that time he may, against the seller, recover the ex- 

 pense of keeping it ; but he must not keep it as long as he 

 chooses. All that he is allowed to do is to keep it for a 

 reasonable time till he can fairly sell it, and for that time 

 he ought to be allowed for keeping it. If it was a good 

 thing for the sale of the Horse to keep it till Reading 

 Fair, you will find your verdict for the amount claimed ; 

 but if you think the Horse ought to have been sold within 

 a week or a fortnight, or some other short time, you will 

 deduct so much of the claim as goes beyond the time." 

 The Jury gave the plaintiff a verdict for the whole 

 amount (h). 

 Expense con- In the case of Coxy. Walker (/), where an action was 

 ^^^H^* ^^ brought for a Breach of the Warranty of a Horse sold as 

 ranty. sound, the special damage alleged in the Declaration was 



the plaintiff's expense incurred by reason of the Warranty, 

 and his loss of gains and profits in reselling the Horse ; 

 and the only plea was a denial of the Unsoundness. It 

 appeared that the plaintiff had bought the Horse of the 

 defendant for 100/., and had been offered 140/. for him, 

 but the Horse, proving Unsound, the plaintiff had been 

 obliged to give up the bargain, and sell him for 49/. 7s. 

 Lord Denman, C. J., directed the Jury that the plaintiff 

 w^as entitled to recover the difference between the Price at 

 w^hich he was finally sold, and the actual Vcdiie of the 

 Horse if he had been sound at the time of such sale ; and 

 he left to the consideration of the Jmy, as a measure of 



{h) ElUfi V. Chhmocl:, 7 C&P. (i) Cox \. Walker, cited per Lord 



169. Denman, C. J., in Clare v.Maynard, 



G A. & E. 523. 



