336 



important to them, to refer to the cases of Baldwin 

 V. Dixon, 1 Moody and Robinson, 59 ; Larbalistier 

 V. Clarke, 1 B. and Adol. 899 ; and Morish v. Foote, 

 8 Taunt. 455, quoted in the note on the report oi 

 Biss V. Mountain. 



Since it has been established by the cases 

 already quoted, that, in the absence of an express 

 stipulation, a purchaser shall not be at liberty to 

 return if unsound, but shall only be entitled to 

 recover damages in an action upon the warranty, 

 it becomes of double importance, to ascertain the 

 extent of the damages which he may recover. 



In the case of Caswell v. Coare, 1 Taunton, 566 

 which is a leading case upon this subject, it was 

 held, that " upon the breach of the warranty of f 

 horse, if the horse is returned, the measure o 

 damage is the price paid for him ; if the horse is 

 not returned, the measure of damage is the differ- 

 ence between his real value and the price given 

 If the horse is not tendered to the defendant, the 

 plaintiif can recover no damages for the price o) 

 his keep." 



The warranty and unsoundness were proved 

 but no tender had been made of returning the 

 horse to the defendant. After the trial, the horse 

 being still standing at livery, the plaintiff gave the 

 defendant's attorney notice that he might go and 



