BREACH OF WARRANTY. 163 



warranty was untrue, or by the fact that the horse whilst 



it is in the buyer's possession is injured without his default, 



by an accident arising from a defect inherent in the horse {t) . 



Thus, in Head v. Tattersall (t), the plaintiff bought a mare, Sead v. Tat- 



warranted to have been hunted with certain packs of *'^''*"'^- 



hounds. According to the terms of the sale, the mare, 



if objected to, was to be returned within a specified time. 



The plaintiff paid for the mare, but before removing her 



from the defendant's establishment he was informed by 



some person that the warranty was incorrect. The mare, 



whilst she was being taken away by the plaintiff's groom, 



becanie restive and received serious injury. The plaintiff 



returned her within the specified time. The warranty was 



in fact untrue. The plaintiff brought an action to recover 



the price of the mare, and it was held that nothing that had 



happened took away the plaintiff's right to return the mare, 



and that he was entitled to succeed. 



Where a horse is bought on condition that he is to be Or unsuitable. 

 returned if he does not suit, as the contract for sale is not 

 absolute, the horse may be returned, and an action brought 

 for the price, if paid, as money had and received to the use of 

 the plaintiff {ti). But the purchaser must not keep him 

 longer than is necessary for trial, nor exercise the dominion 

 of an owner over him, as by selling him {v). Such an 

 action was brought in the following case, to recover ten 

 guineas which the plaintiff had paid to the defendant for a 

 one-horse chaise and harness, on condition that it was to be 

 returned in case the plaintiff's wife should not approve of it, 

 paying 3s. Qd. per diem for the hire of it. This contract 

 was made by the defendant's servant, but his master did 

 not object to it at the time. The plaintiff's wife not approv- 

 ing of the chaise, it was sent back at the expiration of three 

 days, and left on the defendant's premises, without any 

 consent on his part to receive it ; the hire of 3-s. Qd. per 

 diem was tendered at the same time, which the defendant 

 refused, as well as to return the money. A verdict was 

 found for the plaintiff. And a rule to show cause why a 

 nonsuit should not be entered, on the ground that this 

 action for money had and received would not lie, was dis- 

 charged («). 



"Where goods are bought on condition that they should 



U) L. E., 7 Ex. 7; 41 L. J., Ex. (») Street t. Blay, 2 B. & Ad. 



4; 25 L. T., N. S. 631. 456. 



(u) Towers v. Barrett, 1 T. E. {x) Towers v. Barrett, 1 T. R. 



133. 138. 



M 2 



