DAMAGES. 195 



said, "That in his opinion there had been a sufficient 

 tender of the horse back to the defendant ; that if the 

 horse was unsound, it was the defendant's duty to provide 

 for the charges of standing at livery ; and therefore the 

 plaintiff, in that case, would be entitled to the 9/. I7s. 

 claimed for keep." The jury found a verdict for the 

 plaintiff for the whole sum demanded. A rule was 

 obtained to show cause why there should not be a new 

 trial, or why the verdict should not be reduced in respect 

 of the keep ; the rule, however, was discharged. 



And Lord Denman, 0. J., said, " I can conceive no case Seller liable 

 where a purchaser returns a horse, in which the seller may ^'^ reasonable 

 not be liable for some keep. The law upon the subject is ^^^' 

 thus laid down in Mr. Selwyn's Law of Nisi Prius (/). 

 As soon as the unsoundness is discovered, the buyer should 

 immediately tender the horse to the seller ; and, if he re- 

 fuses to take him back, sell the horse as soon as possible 

 for the best price that can be procured ; for the purchaser 

 is entitled to recover for the keep of the horse for such time 

 only as would be required to resell the horse to the best 

 advantage." 



" Whether the time of keeping be reasonable or not, is What is 

 a question for the jury. But here the defendant altogether reasonable. 

 denied his liability. It is true that counsel would have 

 been under a disadvantage in resting the case on two 

 different grounds ; but that consideration cannot vary the 

 course which must be pursued in trying a cause. If the 

 defendant's counsel meant to rely upon the unreasonable- 

 ness of the time, he should have shown grounds for insist- 

 ing on that point, and taken the opinion of the jury upon 



it"(^). 



In the following case, where an action of assumpsit was Keepino; the 

 brought on the warranty of a horse, it appeared that the ^°P<^ *ill ^ 

 plaintiff had tendered back the horse to the defendant, 

 and on his refusal to receive it, had kept it nearly eight 

 weeks at livery at Reading, till Reading Fair, when it was 

 sold. The plaintiff sought to recover the difference between 

 the price which he had given for the horse and the sum for 

 which he was sold, and also the expense of his standing at 

 livery. 



Mr. Justice Coleridge, in summing up, said to the jury, 

 "With respect to the keep of the horse, I am of opinion 



(/) Selwyn's N. P. 12th ed. vol. 1, (ff) Chestermcin v. Lamb, 2 A. & E. 



p. 656, tit. Deceit, I. 2. 129. 



o 2 



