USE OF HORSE BY THE BORROWER. 105 



of a horse is Bain v. Strang, {a) In that case, a party- 

 borrowed a horse, and while being driven along a road it 

 stumbled and fell, and damages were claimed on its being 

 returned with broken knees, it Avas held that there was an 

 onus on the borrower to show that he had used reasonable 

 care. There was uncontradicted evidence that the horse 

 was driven discreetly. Lord President Inglis in that case 

 observed : — " Now, one of the conditions undoubtedly is that 

 the thing lent is not to be used except for the express pur- 

 pose for which it is lent ; and, secondly, that in using the 

 article for which it was lent, the borrower shall use reasonable 

 care. There is what may be called an incidental condition 

 of the contract also, which is rather to be gathered from 

 decisions of the Court than from anything in the essence of 

 the contract — viz., that if the article is returned in a dam- 

 aged condition, there is an onus on the borrower to show 

 that the damage did not arise through his fault. It is 

 argued that the onus is heavier than that, and that he is 

 bound to show what was the specific cause from which the 

 injury arose. I am not disposed to decide that question, 

 because I do not think there is any necessity to do so. We 

 have, I think, sufficient evidence to show that reasonable care 

 was used by the defender in dealing with the horse." (6) 

 Lord Adam, however, indicated an opinion that even though 

 the borrower cannot prove the specific cause of the accident, 

 he should be absolved if he satisfy the Court that he took all 

 reasonable care, (c) Professor Bell, however, holds that a 

 borrower is bound by the very slightest fault, and must take 

 the most vigilant Q,QXQ.{d) In England, when a gratuitous 

 bailer of a horse acquires the sole benefit, he must exercise 

 the most vigilant care, and is liable for slight negligence ; 

 but the diligence required is not so exact if the lender is also 



(a) Bain v. Strang, 1888, 16 R. 186. 

 (h) Bain, cit., p. 189. 

 (c) Bain, cit., p. 192. 

 {d) B. Pr. 199. 



