WARRANTY. 163 



In the case of Carsewell v. Coare, where the 

 breach of warranty was proved, but no tender 

 made respecting the return of the animal, it was 

 contended that the purchaser could recover the 

 cost of the horse's keep. 



Lord Mansfield ruled " that the contract was 

 broken, and the seller must refund the money and 

 the buyer return the horse ; but if the latter had 

 not previously tendered him, he could not recover 

 for cost of keep, as the fault did not rest with the 

 seller." 



The matter would, of course, be different if the 

 seller refused to accept the horse after the buyer 

 had tendered him. 



The animal must be returned in the same con- 

 dition that it was at the time of sale, but supposing 

 lameness arises through disease that was in exist- 

 ence at the time of sale, the buyer cannot be held 

 to be responsible for such. 



When a horse depreciates in value, through 

 injury, the result of negligence, whilst in the pur- 

 chaser's custody, the vendor cannot be compelled 

 to take the animal back, so that the buyer will 

 have to be content with the recovery of a portion 

 of the purchase price. 



A horse warranted sound, but which the buyer 



II* 



