337 



take the horse, but made no offer to pay for its 

 keep, the liveryman refused to deliver it, till its 

 keep was paid. Mansfield, C. J. : " The contract 

 being broken, the defendant must give back the 

 money, and the plaintiff must return the horse ; 

 but unless the plaintiff has tendered him, he cannot 

 recover for the keep, because it was not the defen- 

 dant's fault that plaintiff kept him . When the war- 

 ranty was broken, the plaintiff might instantly have 

 sold the horse for what he could get, and might 

 have recovered the residue of the price in damages." 

 In Chesterman v. Lamb, 4 Nevile and Manning^ 

 195, already mentioned, it was held that " where 

 a horse warranted sound, turns out to be unsound, 

 and is, after notice to the seller, resold by the pur- 

 chaser, the latter may recover not only the differ- 

 ence of price between the first and second sales, 

 but also the keep of the horse for a reasonable 

 time ; but the question whether the horse has been 

 kept an unreasonable time before the resale is a 

 question for the jury; and if the seller rests his 

 defence on the soundness of the horse, and does 

 not request the judge to leave the question of time 

 to the jury, the court will not, upon motion for a 

 new trial, look into the evidence upon this point." 

 In this case, the sale took place on the 26th of 

 June. On the 9th of July the lameness was dis- 



