REJECTION WHERE NO TIME FIXED FOR TRIAL. 83 



the horse intact till removal. (a) When the horse is received 

 back, or the seller acquiesce in accepting the notice as a 

 rejection, there is a mutual rescission of the contract. (6) But 

 Avhere the seller refuses to take back the horse, the bu3'er to 

 preserve his remedy, is bound immediately to take steps to 

 enforce the warrandice and to obtain a judicial warrant for 

 sale of the animal from the Sheriff, meanwhile placing it in 

 neutral custody. (c) Thus m M'Bey v. Gardiner, {d) where 

 the purchaser merely intimated his rejection, and kept the 

 horse for fifty-seven days without taking any proceedings on 

 the notice, he was held barred from insisting on repetition 

 of the price. But in the case of The Caledonian Railway 

 ComjMny v. Ranldn,{e) the seller requested the buyer to 

 keep the horse and to wait a little to see whether or not it 

 would recover, and there was evidence that he was willing 

 to take it back, and in these circumstances it was held 

 that the buyer was not barred from recovering the price, 

 even althousrh he retained the horse six weeks after intima- 

 tion of rejection. 



62. Rejection where no time fixed for Trial. — If no 



time for trial be specified in the warranty, the rejection 

 must be made immediately on the discovery of the defect, or 

 at least as soon as is reasonable, for if a time elapse during 

 which by ordinary diligence the defect could be discovered, 

 the right to reject ceases. (/). Thus, where an action was 

 laid on the warranty of a horse sold at £20, the warranty 

 and unsoundness were proved, but there was no tender of 

 return. The animal was placed at a livery stable, the keeper 

 of which would not give it up without the price of its keep. 

 It was held that all the plaintiff could recover was the price 



(rt) Chapman v. Couston, 1871, 9 M. 675. 

 (6) Weston v. Doivncs, 1778, Dougl. 24. 



(c) B. Pr. 128, see Appendix ii. 



(d) iM'Bey v. Gardiner, 1858, 20 D. 1151. 



(e) Caledonian Railway Co. v. Rankin, 1SS2, 10 E. 63. 



(/) Smith Bros. v. Scott, 1875, 2 R. 601, effect of agreement on rejection. 



