SUING ON WARRANTY. 595 



a mare of bis own and 20 gs. for a horse of defendant's, wliich, on dis- 

 covering that it was unsound, he sent back with a letter, and put both 

 letter and halter into defendant's hands, who refused to take them, and 

 turned the messenger out of his yard when he asked for the plaintiffs 

 20 gs, and mare back again. There should have been a special decla- 

 ration on the warranty, and trover did not lie for the mare, as the ex- 

 change had been effected, and the property transferred thereby. But 

 where, as in Panne v. WMIe, in reply to an action for money had and 

 received, the defendant admitted the warranty, but denied the unsound- 

 ness and refused to take back the horse or return the money, adding 

 that if the horse were unsound he would do so, and the horse was 

 proved to be a roarer and unsound, Lord ElUiilorough C.J. thought 

 that such special promise to rescind the contract and return the money 

 if the horse were unsound took this out of the general rule, and suffered 

 the plaintiff to have a verdict for the amount. 



The course tvliich a jmrchaser is to pursue, when a warranted horse 

 has proved unsound, was very fully laid down by the Court of Queen's 

 Bench in Street v. Blay. The action was in assumpsit for a horse sold 

 and delivered with a warranty by plaintiff, on Feb. 2nd, 1830, for £43, 

 to defendant, a horse dealer, who sold him to Bailey, one of his cus- 

 tomers, the same day, at a £2 profit. This new purchaser kept him a 

 day and parted with him in exchange to one Osborne, who kept him 

 a day and sold him again to the defendant for £30. No warranty 

 was given except on the first sale, and the defendant sent the horse 

 back lame to the plaintiff's premises, saying that he was unsound, on 

 February 9th; but the latter would not receive him, and brought his 

 action. 



The defendant had a verdict, and Lord Tenter den C.J. reserved the 

 question for the Court, whether or not the defendant, after having sold 

 the horse, could, upon becoming possessed of him again, return him to 

 the plaintiff and refuse payment of the price, by reason of the original 

 unsoundness. The Court of Queen's Bench made a rule absolute for 

 a new trial, or to enter a verdict for a reduced sum in lieu of damages, 

 as the defendant had a clear right of action against the plaintiff for 

 breach of warranty. They held that there was no authority to show 

 that a purchaser may return a warranted article where he has done more 

 than was consistent with the purpose of trial, as exercising dominion 

 of an owner over it, by selling and parting with the property to 

 another, and that supposing it were competent for the defendant to re- 

 turn the horse after having accepted it and taken it into his possession, 

 if he had never parted with it to another, he could not do so after a 

 resale at a profit. He could not require the original vendor to take it 



Q Q 2 



