108 CUSTODY OF HORSES AT LIVERi" AND AT GRASS. 



sufficient, and the hostler fit for his undertaking, (a) The 

 conditions of custody, of course, may vary by express con- 

 tract, or by acquiescence in any known pecuharity of condi- 

 tions ; but, in the absence of agreement, where a horse is 

 put to grass, the grazing field must be fenced against the 

 escape of the horse, and agamst savage, dangerous, or 

 infected animals, and must be free from pitfalls and dangers 

 Avhich may lame or injure it. There is also implied the 

 personal care of the custodier to prevent injury to the horse 

 under his care ; and, if mjury happen to it, there is laid 

 upon him the burden of proving that it did not occur 

 through his fault. (?>) 



The care required by livery stable keepers and those who 

 graze horses for hire, is such as a diligent and prudent man 

 will take of his own beasts, (c) Thus, a horse which had 

 been sent to be grazed for hire upon a farm, was killed by 

 falling into a hole in a field in which it had been placed, 

 which was situated over old mineral workings. The hole 

 was proved to have been noticed for some time before the 

 accident by several persons in the neighbourhood. The 

 farmer was held liable for the value of the horse, (c?) Lord 

 Shand said : — " The onus is in the first place upon the 

 defender to account for the death of the horse, and I do not 

 think he has satisfactorily discharged that onus by proving 

 that the horse was killed by a cause for which he is not 

 responsible. It may no doubt be said that the defender 

 treated his own horses in a similar manner, but in so doing 

 he was clearly incurring a great risk, and one to which he 

 was not entitled to expose his neighbour's horses when he 

 was to receive hire for grazing them."(e) Again, an action 



(«) B.C. i. 488. 



(b) B.C. cit., Coffffs V. Bernard, and cases in Smith's L.C. 226. 



(c) Rooth V. Wilson, 1817, 1 B. and Aid. 59 (case of gratuitous grazing); Broad- 

 water V. Blot, 1817, Holt's Rep. 547 (leaving a gate open) ; S7nitk v. Cool; 1875, 

 L.R. 1 Q.B.D. 79 (injury by bull goring a horse). 



(d) M'Laen v. Warloclc, 1883, 10 R. 1052; Mack v. Allan cO Simpson, 1832, 

 10 S. 349 ; Groucott v. Williams, 1863, 32 L.J., Q.B. 237. 



(c) M'Lacn, cit. p. 1055. 



