SALE AND WARRANTY BY AN AGENT OR SERVANT. 85 



his right to rescind the contract,(rt) even in contemplation 

 of bankruptcy. (6) The effect of rejection of a horse as dis- 

 conform to warranty is, when accepted, to rescind the contract ; 

 it bars a buyer's retention for a claim of damages,(c) and 

 even when refused, for the expenses of its keep.(<:?) In Eng- 

 land, if the seller refuse to take back the horse, the buyer 

 should sell him for the best price that can be secured, and 

 the seller is liable for his keep meanwhile for a reasonable 

 length of time, the amount of which is a jury question.(e) In 

 Scotland, as already indicated, a judicial warrant is necessary. 

 Where more horses than one are bought at a slump sum, 

 even though a separate warranty be given with each, and 

 one or more prove disconform to warranty, the whole must 

 be rejected ; but the rule is different where the parties 

 intended the contract to be serveable.(/) And where a pair 

 of carriage horses ((/) is sold, or two together, each at a lower 

 price than would have been paid if they had been sold separ- 

 ately ; both may be rejected though bought at fixed prices, 

 the bargain being considered an entire one in such cases. (A) 

 Rejection is also competent where a buyer has not seen the 

 horse, if no warranty be given ; but only on the ground of 

 its not being a merchantable animal, or in those cases of sale 

 for a specified purpose not falling under § 5 of the Mer- 

 cantile Law Amendment Act. 



66. Sale and Warranty by an Agent or Servant.(i) — 



Where authority is given to an agent or servant by his prin- 

 cipal or master to buy, sell, or warrant a horse, he cannot 



(a) Boolcer, cit. p. 319. 



(6) Ehrcnhachcr v. Kennedy, 1 R. 1135, see Lord President Inglis' observations 

 upon this matter. 



(c) Pachjett V. M'Nair, 1852, 15 D. 76 ; Melville v. Critchlcy, 1856, 18 D. 643. 



{(I) Barclay v. G^Uhrie, 1886, 3 S.L. Rev. 103. 



(c) Chcstcrmann v. Lamh, 1834, 2 A. and E. 129 ; see also Caswell v. Ooare, cit. 

 § 62, p. 84. 



(/) Sec. 2, Stewart v. M'Nicol, 1814, Hume, 701 ; Lord M'Laren in Campbell 

 V. Henderson, 1886, 23 S.L.R. 712 ; see also § 2. 



((j) Uundas v. Fairhairn, 1797, Hume, 677. 



(/i) Jlamilton v. Jlart, 1830, 5 S. 896. 



(i) See further upon a servant's authority, §§ 150-155. 



