248 



LIVERY-STABLE KEEPERS, AGISTERS, ETC. 



Seals where 

 action founded 

 in tort. 



Where Hirer 

 is answerable 

 at all events. 



Unnecessary 

 deviation. 



Where negli- 

 gence must 

 be proved. 



Where Horse 

 falls lame. 



Where the 

 Horse is ex- 

 hausted. 



dently ridden, and the defendant injured her, it was held 

 that he might plead his infancy in bar, as the action was 

 founded on a contract {c). 



But where it is clear, from the Statement of Claim, the 

 whole of which must be looked at in order to see whether 

 the action is substantially founded in tort or in contract, 

 that the plaintiff claims damages for a tort ; and that in 

 addition to breaking the contract, the defendant by driving 

 the Horse at an excessive speed, and unduly flogging and 

 otherwise illtreating and negligently and carelessly using 

 him, has committed a separate and independent wrong 

 apart from the contract, he will be liable for that wrong 

 in the action, and the plea of infancy will afford no 

 defence (r/). 



A Hirer is answerable at all events, if he keep the thing 

 hired, after the stipulated time, or use it differently from 

 his agreement {e). 



If a man Hire a Horse to go from A. to B., he ought to go 

 by the usual road, and should not unnecessarily deviate from 

 the usual and customary way. And if he make a material 

 deviation, and any damage ensues, he would appear to be 

 liable for it at all events (_/). 



Where there has been no material deviation, and the Horse 

 has not been kept after any stipulated time, there must be 

 positive proof of negligence, to fix the Hirer. For instance, 

 if an action is brought against him for using a Hired 

 Horse so negligently that it broke its knees, it will not be 

 sufficient for the plaintiff merely to show that the Horse 

 was a good Horse, and not in the habit of falling {g) . 



If the Horse falls lame on the journey, the Hirer may 

 abandon him at any place where he turns out unfit, and 

 give notice of that fact to the party letting him out, whose 

 duty it is to send for him (A). 



Where the strength of a Horse which has been Hired 

 or Borrowed is e.rJiausted, and it has refused its feed, the 

 Hirer or Borrower has no right to pursue his journey with 

 it. This was so held in Bray v. Mayne (/), where a person 

 had a Horse on trial for some days on condition that he 

 should pay 10/. for its hire if he did not like it. The 



[c) Jcnmngs v. Rioidall, 8 D. & R. 

 335. 



id) Wallcy v. EoU, 35 L. T., 

 N. S. 631. 



(e) Jones on Bailments, 121. 



(/) Hee Davis v. Garreff, 6 Bing. 



716. 



{if) Cooper V. Burton, 3 Camp. 

 5, u. 



(A) Per Pollock, C. B., Chew v. 

 Jones, 10 L. T., Ex. 231. 



(i) Braij X. Mayne, 1 Gow, 1. 



