AND OiVJ/S OF PROOF OF INJURY. 90 



it. (a) In Scotland, the lessee is responsible forliis own negli- 

 gence, for that of his family, and also for that of his servants, 

 whether it occurs in the ordinary course of their employment 

 or not, and the law throws upon him the burden of proving 

 that damage to the horse, while he has the use of it, is acci- 

 dental and not negligent ; (6) in England, however, the 

 burden is on the lessor to prove negligence, (c) Thus, a 

 defendant hired a carriage and horse from the plaintiffs, the 

 defendant's coachman, in place of taking them, as was his 

 duty, to the stable, drove, for his own purposes, in another 

 direction. While he was thus engaged the carriage and 

 horse Avere injured, owing to his negligent driving. It was 

 held that there had been a breach of contract, for which the 

 defendant was liable. (cZ) Should a horse be returned in a 

 damaged condition, the lessee is bound to indemnify the 

 lessor for the damage, unless he can show that the injury 

 has been due to inevitable accident, and the later decisions 

 ]iave increased this burden of proof so far as to make it com- 

 pulsory upon the lessee to prove the cause of the accident or 

 injury, and also that he was not to blame for it. Thus, one 

 who hires a horse, if it die or fall sick, must prove not merely 

 that he rode modo debito, and no farther than agreed upon, 

 but also by what accident, defect, or latent disease it failed, 

 otherwise he must pay the price, (e) This case was followed 

 by Robertson v. Ogle,{f) where an action was raised on a 

 serviceable hired horse being returned unfit for service. 

 There was a report by two carriers and a veterinary sur- 

 geon, that over-riding and bad usage, while in the defender's 

 possession, was the cause of the damage. The defence was 

 that it was unfit for the journey when lent on hire, and that 



(a) B. Pr. 145. 



V') §§ 150-152, and cases there cited. 



(c) Cooper v. Barton, 1810, 3 Camp. 5, n. 



(d) The Coupe Company v. Maddiclc, L.R. [1891], 2 Q.B. 413, where the 

 difference between a lessee's liability to a wayfarer and to the lessor is explained. 

 See a criticism oa this case by Beven Law Mag. and Rev., 4th Ser., 283, 1. 

 See also § 155. (c) Binny v. Vcaux, 1679, M. 10,079. 



(/) Robertson v. Oylc, 1809, 15 F.C. 348. 



