LOAN. 103 



journey, and put it into a stable, and it was taken ill 

 and died, in consequence of want of proper treatment by 

 the hostler, it was held that a person who hires a horse 

 is not responsible for the culpa of those (hostlers of inns 

 and others) to whom in the course of a journey he properly 

 entrusts it. (a) 



Where one gets possession of a horse, on the pretence of 

 hiring it, and then offers it for sale, it is relevant to infer a 

 charge of obtaining goods on false pretences, if not of 

 theft ;(6) but in England if the sale is not effected the 

 actual conversion of property has not taken place, and 

 there is no felony, (c) 



76. Loan. — When the use of a horse is given without hire, 

 either on time or for a special occasion, the contract is one of 

 commodate or loan, {d) The loan is not complete till delivery, 

 and when a horse is lent, the property remains with the lender, 

 and so does the risk, unless the borrower be in fault, (e) 

 The loan being gratuitious, and the beneficial use being for 

 the borrower's benefit, he is bound to take reasonable 

 care;(/) but he is not liable for inevitable accident occur- 

 ring in the use of the horse under the terms of the con- 

 tract, or in ordinary use ; {g) but he is liable for neghgence, his 

 own, or that of one using the horse with his authority ; (Ji) for 

 misuse, for gross want of skill in use, and, above all, for any- 

 thing that may be qualified as legal fraud, (i) The lender, how- 

 ever, must communicate to the borrower any pecuUarity 

 which renders a horse perilous to use,(^') else he will be 



(a) Smith V. Mclvin, 1845, 8 D. 264. 



(b) Menzies, 1842, 1 Broun, 419 ; Uardinge, 1863, 4 Irv. 347 ; Macdonald, 

 Crim. Law, p. 22, et seq. 



(c) Ilcrj V. Brools, 1838, 8 C. and P. 295. 



(d) Ersk. iii. ], 20. If it be lent at will the contract is called Precarium. 

 {e) B. Pr. 196. 



(/) £(1171 V. Stranrj, 1888, 16 R. 186. 



{g) As to what is ordinary use, see §§ 71, 72. 



(k) Whcatley v. Patrick, 1837, 2 M. and W. 650. 



(t) Blakcviorc v. B. d: E. By. Co., 1858, 8 E. and B. 1035, 1050. 



U) Corjfja V. Bermircl, 1 Smith's L.C. 201, 266 ; Story on Bailments, § 391 (a). 



