BREACH OF WARRANTY. 



165 



pursued under such circumstances is to sell him by public 

 auction, for in that way the true market value, which is the 

 proper measure of damages, can best be discovered (A). 



If the buyer does not wish to tender the horse, he 

 should at any rate give notice of the breach of warranty, 

 because the not giving notice wiU be strong presumption 

 against the buyer that the horse, at the time of sale, had 

 not the defect complained of, and will make the proof on 

 his part much more difficult («'). And unless the breach 

 in such case is clearly established, the jury will naturally 

 suppose that the horse corresponded with the warranty {Ic). 



The longer the time before notice, or bringing an action 

 after discovering the breach of warranty, the greater will 

 be the difficulty in making out a good case to a jury {i). 

 But where the breach of warranty can be clearly proved, 

 the length of time before notice does not appear material. 

 For the Court of King's Bench, in a case where an unsound 

 horse was sold with a warranty of soundness, decided that 

 the buyer might maintain an action on the warranty, 

 although shortly after the sale he had discovered the un- 

 soundness, and, without giving notice of that fact to the 

 seller, had kept and used the horse for nine months as his 

 own, during which period he had given him physic, and 

 used other means to cure him ; he had also cut the horse's 

 tail. The case had been tried at the Hereford Assizes 

 before Mr. Justice Parke, who directed a nonsuit. How- 

 ever, in the ensuing term a rule was obtained to set that 

 nonsuit aside, and for new trial, the cases of Fielder v. 

 Starkie {/) and Caswell v. Coare (m) being referred to. In 

 showing cause, it was contended that Fielder v. Starkie (/) 

 was overruled, or at least quahfied, by subsequent cases ; 

 but Lord Denman, with the assent of Justices Littledale, 

 Patteson and Coleridge, said, " We think that Fielder v. 

 Starkie is not overruled. The rule must be absolute " (w). 



The seller, on receiving notice of a breach of warranty, 

 should have the horse examined by some skilful person, 

 and so ascertain the exact state of the case. If he find 

 that the warranty is broken, or that there is doubt, he had 

 better either take back the horse, or come to what terms 



Notice in- 

 Btead of ten- 

 der. 



Lengtli of 

 time before 

 notice. 



Seller should 

 have the 

 horse ex- 

 amined. 



(A) Dingle v. Sare, 7 C. B., N. S. 

 145. 



(j) Fielder v. Starkie, 1 H. Bla. 

 17; 2E. R. 700. 



(k) Foulton V. Lattimore, 9 B. & 

 C. 265.. 



II) Fielder v. Starkie, 1 H. Bla. 

 17 '; 2E. E. 700. 



(m) Casioell v. Coare, 1 Taunt. 

 566; 10 R. R. 606. 



(«) Pateshall V. Tranter, 3 A. & 

 E. 103 ; S. C, 4 Nev. & M. 649.: 



