RECOVERY OF KEEP WHERE WARRANTY BROKEN. 593 



reserve ; but we are clear that the bidder has no remedy against the 

 auctioneer, whose authority to accept the offer of the bidder has been 

 determined by the vendor, before the hammer has been knocked down." 

 This tase has been taken into a Court of Error. 



It was settled by the Court of Queen's Bench, in Caswell v. Coare, 

 that unless the plaintijf licul previouslij iendered the horse, he cannot 

 recover for the kee}), because it was not the defendant's fault that the 

 plaintiff kept him ; and a rule was made absolute to reduce a £30 10s. 

 verdict (which included lOgs. for keep) to £20, the plaintiff under- 

 taking to deliver back the horse, whose warranty was broken, free 

 of all expense. And per Littledale J., in 3IacJccnzie v. HancocJc, where 

 the defendant, after due notice, refuses to receive a horse back, the 

 plaintiff may recover the keep for as long a time as may be reasonably 

 occupied in endeavouring to sell the horse to the best advantage. In 

 Ellis V. Chinnock, where a horse warranted " sound, free from vice, 

 and quiet in harness " was sold on May 7th, and refused when tendered 

 back on May 30th, the same rule was acted upon by Coleridge J., and 

 the plaintiff recovered the amount of its expenses at a livery-stable 

 from the latter period up to Eeading Fair (July 25th). Again, in 

 Chesterman v. Lamb, where the defendant had notice at the end of a 

 fortnight (July 11th) that the horse was unsound, and on September 

 16th it was sold, the whole of the horse's expenses at livery from 

 July 26th were allowed. Lord Denman C.J. said: "The question 

 whether the horse has been kept an unreasonable time before the 

 resale is a question for the jury ; " but the two reports of the case 

 differ as to whether the £9 176-. claimed for keep, included keep from 

 the time the notice of unsoundness was given, or merely the livery- 

 stable charges. 



The law upon the subject is thus laid down in " Selwyn's Nisi 

 Prius," 8tli edition, vol. i., p. 657 : As soon as the unsoundness is 

 discovered, the buyer should immediately tender the horse to the seller ; 

 and if he refuses to take him hack, sell the horse as soon as possible 

 for the best price that can be procwed, for the purchaser is entitled to 

 recover for the keep of the horse for such time only as would be 

 required to sell him to the best advantage." It may be inferred, 

 from the language of Tindal C.J., in Watson v. Benton, that the 

 expenses of keep up to the time of the offer to return an unsound horse 

 may be recovered as damages. His lordship said : " You will give as 

 damages the difference between the price paid and the real value of the 

 horse, and damages for the expense which the plaintiff was put to 

 Ity selling him that which was of no use to him for a certain time, 

 at least to the time when he offered the horse to the defendant." 



