444 BAILMENT. 



though the horse is- not deUvered.^"^ It has been held in 

 some cases, also, that the agistor's Hen is lost by his causing 

 the property to be taken in execution at his own suit; ^^* but 

 in other cases this has been denied.^''^ One wrongfully re- 

 taining cattle after the tender of the amount due for pasturage 

 is not entitled to a lien for subsequent pasturage unless they 

 are allowed to remain under the contract for a longer term.^^" 



106. Breeding. — One who rents the services of a male 

 animal for breeding purposes must take all ordinary care to 

 prevent injury. Where the mare served died from rupture, 

 he is Hable for not taking the usual amount of precaution.^^^ 

 Evidence that the mare was so confined as to prevent suiifi- 

 cient freedom shows negligence.-'®* Where the mare is in- 

 jured by bad service it has been held, on the one hand, error 

 to require the plaintiff to show that this was due to the 

 defendant's negligence, the inference being that it was.^** 

 On the other hand, it has been held that the proprietor of the 

 stallion is not in the first place liable: it must be shown that 

 the injury had for its cause some fault on his part or that of 

 his servant. '''^'' Probably so}ne evidence of negligence ought 

 to be required in all cases. 



After an injury to a mare during service, her owner gave 

 his note containing the clause: "All accidents — at owner's 

 risk." It was held that this did not afifect his right of action 



'" Rosema i;. Porter, 112 Mich. 13. 



'"Jacobs V. Latour, 2 M. & P. 201; Fein v. Wyo. Loan & Trust Co., 

 3 Wyo. 332. 



""Lambert v. Nicklass (W. Va.), 31 S. E. Rep. 951; Arendale v. Mor- 

 gan, S Sneed (Tenn.) 703. 



"° Powers V. Botts, 58 Mo. App. i. 



Tlie plaintiff by taking no active step waives the tortious act: Same 

 V. Same, 63 id. 285. 



'"Bergeron v. Brassard, 10 Rev. Leg. (Can.) 21; Cavender v. F4ir, 

 40 Kan. 182. 



"" Scott V. Hogan, 72 la. 614. 



"" Peer v. Ryan, 54 Mich. 224. 



™ Brouillet v. Cote, Montr. L. Rep. 3 S. C. 164. 



