AND OyUS OF PROOF OF INJURY. 101 



Pullars V. Walker,(<() where a horse died in the hands of an 

 intending purchaser. On trial, Lord Cowan observed : — 

 " Fortunately the parties here are at one as regards the 

 degree of diligence which applies to the case. It is that 

 degree of diligence which applies to the hirer in a contract 

 of location. ... In this case, therefore, as in all such cases, 

 the hirer must show the cause of death and that he was 

 blameless." (6) This dictum, which thus extended the bur- 

 den of proof, was approved of in Wilson v. Orr,{c) and the 

 judgment in that case turned upon the very point of the 

 defender's inability to show the cause of the accident. A 

 farmer hired a horse for its keep, and it was proved, by 2^ost- 

 morteon examination, that it died from the effects of a blow 

 on the shoulder, received while in the lessee's custody. 

 There was no evidence as to how it happened. The horse 

 was delivered, to all appearance sound, upon the 20th of 

 April, and he was kept w^ithout work from the 20th to the 

 26th. He was worked on the 27th and 28th on the 

 defender's farm, and indicated on both da3''s, especially on 

 the second, a certain slowness and misteadiness in his work. 

 At four o'clock on the morning of the 29th, the defender 

 found the horse's shoulder festered, and led it up and down 

 the court. A veterinary surgeon saw it on 1st May, lanced 

 the swelling on the 5 th, and the horse died on the 7th. 

 Lord Justice-Clerk Moncreiff observed : — " If the subject of 

 the contract be not restored in the like good condition as 

 that in which it was received, there is a certain burden of 

 proof laid on the hirer. He must show the cause of injury 

 or death ; and, at least, produce prima facie proof thp,t the 

 cause was one for which he was not responsible," (cZ) and 

 Lord Gifford to the same effect said : — " I think it lay upon 

 the defender to do a great deal more than merely to say, ' I 



(a) PuUars v. WalJ:cr, 1858, 20 D. 1238. 

 (6) PuUars, cit. p. 1245. 



(c) Wilson V. Orr, 1879, 7 R. 266. 



(d) Wilson, cit. p. 268. 



