EEJECTIOX. 79 



immediately ; (a) nor, where liorses have been ordered and are 

 disconform to order, does the mere fact that the buyer has 

 sold part of them before discovery of the defect bar his right 

 of rejection; but he must restore the value and not the 

 contract price of those returned, (b) 



In one case, an action was raised for the price of a mare 

 warranted " sound, quiet, and free from vice and blemish," 

 which was bought for thirty guineas, and soon afterwards 

 was discovered unsound and vicious. The buyer kept her 

 three months and gave her medical treatment. He resold 

 her, and after some time she was returned unsound by the 

 sub-purchaser. On being returned she was refused, and 

 died on the way back to the seller's stable, and on dissection 

 was found to have been unsound twelve months before her 

 death. No notice of unsoundness was given till rejection. 

 A verdict was given for the plaintiff, and on a motion for a 

 new trial the Court held the mare to have been unsound at 

 the time of the sale, that the lapse of time before she was 

 returned did not alter the nature of the contract, originally 

 false, that the failure to give notice may be a strong presump- 

 tion against the buyer, and will make his proof more 

 difficult, and that here the evidence was with the jury.(c) 

 Again an action was laid on a breach of a Avarranty of a pair 

 of coach horses, warranted " perfectly sound and free from 

 blemish and in no manner vicious, and if on trial they should 

 have any of these faults, I agree to take them back again 

 and repay the purchase money." One turned out vicious 

 and the buyer informed the seller of the fact, but kept it for 

 several months, partly on the seller's persuasion, then sent 

 it to grass, and after having had it again in harness for 

 a few days returned the pair, and demanded the price, it was 

 there held that it was incumbent on the buyer to return the 

 horse as soon as the fault was discovered, unless the seller 



(rt) B. Pr. 99 ; Street v. Blcnj, 1831, 2 B. and Ad. 456. 



(b) Jl'Cormick v. Rittmeycr, 1SG9, 7 M. 854. 



(c) Fielder v. Starkin (C.P.), 1788, 1 Hy. Blackst. 17; 1 111. 115. 



