100 RESTORATION TO THE LESSOR. 



it had been gently ridden and avcII used. The Court held 

 that, if the horse's malady arose from any cause for which 

 the defender ^vas not blameablc, the onus i^rohandi lay 

 upon him, and that the pursuer could not be expected to 

 prove the treatment the horse had received while in the 

 custody of the defender. This case, when contrasted with 

 Cooper V. Barton,{ct) exhibits very clearly the distinction, 

 already indicated, between the English and Scotch law — viz. , 

 that in England the onus of provmg that the lessee has been 

 negligent lies upon the lessor, whereas, in Scotland, the 

 onus is upon the lessee to disprove negligence. 



In the case of Marquis v. Ritcliie,(h) the strictness of the 

 law laid down in Binny v. Veaux (c) was somewhat relaxed. 

 The lessee, on returning a horse with its leg broken above 

 the knee, failed to bring his proof up to the standard 

 required, and the rule in Robertson v. Ogle{d) was thus con- 

 strued : — " It is incumbent on the person by whom the 

 horse has been hired, to establish that the injury sustamed 

 could not be prevented by due care and attention on his 

 part, and was occasioned by that for which he was in no 

 respect to blame." These two cases show that it would have 

 been sufficient if the lessor could establish that he was not to 

 blame, whether he could show the cause of injury or not. 

 But in Pyper v. Thomson,{e) a case in which the lessee of a 

 horse and gig established his freedom from blame, for the 

 injury it received while under his care, it was observed, 

 " that the lessee must be able to discharge himself of the 

 care he was bound to bestow on the property of the other, by 

 showing that he was not to blame in regard to the cause of 

 the injury, and must, in the general case, be able to show 

 how the injury occurred." The same doctrine was applied in 



(rt) Cooper V. Barton, 1810, 3 Camp. 5, n. In this case tlie plaintiflf proved the 

 hiring of the horse, and that it had often been ont before and had never fallen, 

 but gave no evidence of negligence, and was, accordingly, non-suited. 



(h) Marquis v, Ritchie, 1823, 2 S. 386. 



(c) Cit, supra. 



{d) Cit. supra. 



(c) Pyper v. Thomson, 1843, 5 D. 498. 



