82 ACTS BARRING REJECTION. 



to do SO "when that should be done has been considered an 

 act barring rejection. Thus, where a horse "warranted sound 

 soon after sale showed symptoms of staggers, the buyer 

 "would not physic him but bled him, and twenty-eight days 

 after, on the seller's refusal of him, put him to a livery stable 

 and he died, the seller was held not bound to repay.(ct) Again, 

 a buyer of a mare warranted " sound in every way " blistered 

 her throat for cough and docked her tail while the cold was 

 still upon her. He did not call in a veterinary surgeon for 

 ten days, and the mare died twelve days after the sale ; the 

 buyer was held barred by his treatment of the mare from 

 suing for recovery of the price. (6) Again, where a purchaser 

 worked a horse Avithout objection for six weeks, it having 

 meanwhile been in the hands of a third party, the seller was 

 held not bound to take it back.(c) And Lord Chief- Justice 

 Tenterden, while commenting on Lord Eldon's dictum that 

 where a horse is returned upon a seller, it must be in the same 

 state as when sold and not diminished in value,(c?) observed 

 that a purchaser may return a warranted horse in the 

 ordinary case, and further said, "There is no authority to show 

 that the purchaser may return it where he has done more 

 than was consistent Avith the purpose of trial, where he has 

 exercised the dominion of an owner over it by selling and 

 parting with the property to another, and where he has 

 derived a pecuniary benefit from it ; ... he cannot do so 

 after resale at a profit." (e) 



If, however, it would injure the horse to send it back, 

 notice should immediately be given that it is to be kept at 

 the seller's risk ; and it would be better in such a case to 

 remove it into neutral custody, to lie at the seller's order ; 

 but a buyer acting as custodier for the seller nuist keep 



(a) Wilson v. Marshall, 1812, Hume, 697. 



(b) Newlands v. Lcggat, 1885, 12 R. 820; but see Patcshall v. Tranter, 1835, 

 3 A. and E. 103. 



(c) Pollock V. Macadam, 1840, 2 D. 1026. 



(d) Curtis V. Ilannay, 1800, 3 Esp. 83. 



(e) Street v, Blaj, 1831, 2 B. and Ad. 456, 463. 



