114 PROOF OF THE CONTRACT OF CUSTODY. 



cover for the charges for service, (a) So have veterinary 

 surgeons for medical treatment ; and horsebreakers and 

 trainers by whose skill horses arc rendered manageable 

 have also a lien for trainmg and breaking. (6) In England 

 a livery stable keeper or a grazier, if he is not also an 

 innkeeper, has no lien for the keep and expenses of veterin- 

 ary treatment (c) of horses at livery (cZ) or at grass, (e) except 

 by special agreement. (/) This point has not been decided 

 in Scotland ; {g) and it is thought that a livery stable keeper 

 or grazier has a right of lien for the keep of or attention 

 to the horse ; but not a general retention which would 

 entitle him to retain a horse for an account due for other 

 matters ; nor can he retain one horse for the keep and 

 attention bestowed on other horses. 



86. Proof of the Contract of Custody. — The contract of 

 hiring of custody may be proved by parole or writing. (^) 

 In the case of innominate contracts, unless the contract is of 

 an anomalous character, proof may be yroiit de jure, and is 

 not limited to the writ or oath of the defender. Thus, in an 

 action for payment of an account for stabling omnibus horses 

 for several years, the defence was that the pursuer had agreed 

 to stable the horses free of charge, in consideration of the 

 omnibus departing from and arriving at the stabler' s inn on 

 its way to and from the railway station. It was held that 

 the alleged contract might be proved proiit de jure.{i) 



(a) Scarf e v. Morgan, 1838, 4 M. and W. 270. 



(6) Bevan v. Waters, 1828, 3 C. and P. 520 ; Scarfc, cit. ; Forth v. Simpson, 

 1 49, 13 Q.B. 680. 



(c) Orchard v. Rackstraw, 1850, 9 C.B. 698. 



(d) See Parsons v. GingcU, 1847, 4 C.B. 545 ; Yorlce v. Greenhaugh, 2 Lord 

 Raym. 866, where it was also held that a livery stable keeper was answerable for 

 a horse stolen from his stables. Smitk v. Dcarlovc, 1848, 6 C.B. 132. 



(e) Jaclson v. Cummins, 1839, 5 M. and W. 342, where the authorities are 

 collected. 



(/) Donatty v. Crowthcr, 1826, 11 Moore's Rep., 479, and if it is defeated by 

 fraud of the owner he may regain possession of it, Wallace v. Woodgate, 1824 

 1 C. and P. 575. 



('/) § 88. 



(h) P. Pr. 136. 



(/) Forbes V. Caird, 1877, 4 R. 1141. 



