338 



covered ; on the 25th of July the horse was sent 

 to Osborne's for sale, and notice given to the de- 

 fendant, with directions to remove it ; and on the 

 27th of July the action was commenced. On the 

 6th of September the defendant was informed that 

 it was intended to sell the horse. It was sold on 

 the 16th of September, and the keep of the horse 

 amounted to £9. I65., for which, and the difference 

 in price and costs of sale, amounting altogether to 

 £28. 10s., the action was brought. 



The case of M^Kenzie v. Hancock, hereafter 

 quoted, is an important case to collate with Ches- 

 terman v. Lamb. 



And in 2 Campbell, 82, the judge remarks, "I 

 remember when it was held, that an action could 

 not be maintained upon the warranty, without an 

 offer to return the horse. That doctrine is now 

 exploded, (Fielder v. Starkin, 1 H. B. 17 ; Curtis 

 r. Hannay, 3 Espin. Cas. 82;) but still, unless 

 the defendant refuses to take back the horse, the 

 plaintiff cannot complain that the expense of the 

 keep is necessarily thrown upon him.'' 



It will not fail to be noticed, that in this case, 

 the doctrine that a purchaser cannot return the 

 horse without express stipulation, as decided in the 

 case of Street v. Blay, does not appear to have been' 

 considered. 



