JOHNA.SEAVERNS v^ -/ Family Library of Veterinary Medtcme Cymmings School of Veterinary Medicine an Tufts University 200 Westboro Road North Grafton MA 01536 THE LAW OF HORSES. THE LAW OF HORSES. BY D. ROSS STEAVART, M.A., LL.B. ADVOCATE. EDINBUEGH: WILLIAM GREEN & SONS, ^ah) publisher©. 1892. [fi- le =) PRINTED BY LORIMER AND GILLIES F(in WILLIAM GREEX AND SONS, EDINBURGH. AGENTS IN LONDON— STEVEN'S AND HAYNES. AGENTS IN GLASGOW— JOHN SillTH AND SON. PREFACE. My object in undertaking the following work has been to bring within a volume of moderate size a view of the principles, enactments, and cases in Scots Law that relate to horses. In endeavouring to do this to the full, I have thought it right to go, when necessary, beyond the narrow limitation of the subject ; to refer, for example, to English authorities in illustration of the law of Scotland ; to point out differences between the legal systems of the two countries ; and to cite cases relating to other subjects than horses as authority for the general principles of contract, fraud, and negligence which emerge in transactions about horses. The work thus aims, while dealing with a restricted subject, at treating it completely. I desire to acknowledge the obligations I am under to Mr. A. Orr Deas, advocate, who has kindly revised the proof sheets, and to him and other friends for many valuable and practical suggestions. D. R. S. 21 Northumberland Street, Edinburgh, Jidy, 1892. TABLE OF CONTENTS. CHAPTER I. SALE. Nature of the Contract, 1. Horses as the subject of Sale, 2. Completion of the Contract, 3. Essential Error, 4. Proof of the Contract, 5. Offer and Acceptance, 6. Order, 7. Risk, 8. Implied Conditions as to Quality, 9. Price and Payment, 10-12. Delivery, 13-19. Respec- tive Remedies on Breach of Sale, 20. Sale on Approbation, Sale and Return, and Hire and Sale, 21. Retention, 22. Stoppage mi Transitu, 23-24. Sale by Auction, 25-28. Rejection on Insolvency, 29. Fraudulent Transactions, 30-35. Rescission, 36, . Page 1-40 CHAPTER n. WARRANTY AND SALE FOR SPECIFIC PURPOSE. Warranty generally, 37. Dir-tinction between Warranty and Representa- tion, 38. General, Express, and Implied Warranties, 39. Construc- tion of Warranties, 40. Verbal, Age, Time, and Height Warranties, 41-44. Proof of Warranties, 45. Unsoundness, 46. Causes of Unsoundness, Diseases affecting Wind and Limb, Blindness and other Diseases, 46-52. Vice, 53-55. Blemishes, 56. Effect of Breach of Warranty, 57. Sale for a Specified Purpose, 58. Trial before Rejection, 59. Rejection, 60. Acts which bar Rejection, 61. Effect of a Time Limit for Rejection, 62-63. Requisites, Effects, and Com- petency of Rejection, 64-65. Sale and Warranty by an Agent or Servant, 66, 41-90 Vlll TABLE OF CONTENTS. CHAPTER III. HIRING AND LOAN. Nature of the Contract, 67. Lessor must supply a fit Horse, and Warrant the Use of it, 68-69. Obligations of the Lessee, 70. Use of Horse by Agreement, 71. Use Implied in the Contract, 72. Reasonable Care of Hired Horse, 73. Restoration to Owner, and Onus of Proof of Injury, 74-75. Loan, 76-78, Page 91-106 CHAPTER IV. CUSTODY VETERINARY TREATMENT HYPOTHEC AND DILIGENCE. Custody of Horses at Livery and at Grass, 79-8L Responsibility of Breakers and Trainers, 82. Responsibility of Veterinary Surgeons, 83. Responsibility of a Smith and Farrier, 84. Lien of Custodiers other than Innkeepers, 85. Proof of the Contract of Custody, 86. Inn- keepers' Custody and Lien, 87-88. Horses as the subject of Hypothec, 89. Of Diligence, 90, '. . 107-120 CHAPTER V. CARRIAGE BY LAND AND WATER. Nature of the Contract, 91. By Common Carrier, 92. Liability of Common Carriers, 93. Railway Companies as Carriers, 94. Must receive Horses for Carriage, 95. Delivery to Railway Company, 96. Obliga- tions of the Company, 97. Of a Safe Vehicle for Transit, 98. Statutory Provisions regarding Vehicles for Carriage of Horses, 99. Reasonable Care and Despatch in Transit, 100-102. Of a Fit Place for Delivery, 103. Delivery to the Consignee, 104. Through Book- ing, 105. Termination of Company's Responsibility, 106. Presump- tion in Case of Damage, 107. Inevitable Accident, 108. Inherent Vice, 109. Limitation of Company's Responsibility by Statute, 110. Just and Reasonable Conditions, 111. Optional Rates, 112. Effect of Passes to Drover, 113. Unreasonable Conditions, 114. Limit of Damage Recoverable by Statute, 115. Responsibility of Common Carrier by Water, 116. Statutory Limitations of the Liability of Common Carriers by Sea, 117. Carriage by Sea by Special Contract, 118. Usual Exemptions from Liability in the Contract, 119. Freight when the Horse Dies or is Damaged, 120, . . . 121-154 TABLE OF CONTENTS. IX CHAPTER VI. RESPONSIBILITY FOR THE NEGLIGENT USE OF HORSES. Criminal Responsibility, 121-125. Police Regulations regarding Horses and Hackney Carriages, 126-127. Cruelty to Horses, 128. Slaughter- houses, 129. Grounds of Civil Responsibility, 130. Negligence Exemplified by Furious Driving and Want of Reasonable Care, 131- 141. The Rule of the Road ; Foot-Passengers, Vehicles, Tramcars, Traction Engines, Lights, 142-146. Responsibility of Owners of Public Veliicles, 147-149. Liability of Master to Third Parties, 150-156. Liability of Master to Servant, 157-158. Proof of Negli- gence, 159, Page 155-196 CHAPTER VII. DEFENCES TO ACTIONS OF DAMAGES FOR INJURY TO HORSES AND CAUSED BY THEM. Inevitable Accident, 160. Contributory Negligence, 161-163. Volenti non fit injuria, 164. Mora, 165. Trespass, 166. [Remoteness, see Chap. VIIL, § 170], 197-206 CHAPTER VIIL Who may recover recovered, 168. Delict, 169-170. 171. Elements 172-174, . DAMAGES. Damages, 167. Against -whom Damages may be What may be recovered in Breach of Contract, and Measure of Damage where Hired Horse is injured, to be considered in cases of Personal Injury, 207-221 CHAPTER IX. INSURANCE. Nature of the Contract in relation to Horses, 175-177. Risk, 178. Fire Policies, 179-181. Floating Policies, 182. Marine Policies, 183-187. Horse Insurance Policies, 188, 222-235 X TABLE OF CONTENTS. APPENDIX. PAGE I. The Veterinary Surgeons Act, ..... 239 II. Clause craving Judicial Warrant for Sale of a Horse, . 241 III. Issues to try Questions of Breach of Warranty, &c., . . 242 IV. Conditions of Auction Sales, ..... 244 V. Animals Order Act, 1886, . . . . .245 VI. Provisions regarding Carriage of Horses in Passenger Steamers, 249 VII. Bill of Lading and Notice of Conditions of Shipment, . 250 INDEX OF CASES CITED, xi INDEX, 257 INDEX or CASES CITED. SECTION SECTION Abbot V. Freeman, 159 Baird v. Graham, 52, 66 Adam v. Morris, . 118 „ V. Hamilton, . 135, 150, 151 Adams v. Richards, 60 Baldry v. Bates, . . 66 -^tna Insurance Co. v. Stivers, . 184 Balfour v. Baird, . . 166 Aitchison, .... 2G ,, V. Wordsworth, . Appx. iii. Aldridge v. G. W. Ry. Co., 105 111 Ball V. Ray, . 130 Alexander v. Gibson, . 66 Barclay v. Guthrie, . 65 Allan V. Barclay, 167 Barnock v. Eng. J. S. Bank . 66 „ V. Gilchrist, 6 Ban-y v. Croskie, . 31 „ V. M'Leish, 149 Bartholemew, Somerville & Wat- Allday v. G. W. Ry. Co., . 102, 111 son, .... . 122 Allen V. Smith, . 88 Barton V. Kinning Park Commrs., 139 Alweyn v. Prior, . 19 Bartonshill Coal Co. r. Reic 1, 150, 158 Amaan v. Handyside, . 36 Basset r. Collis, . 50, 51, 55 Amies v. Stevens, 98 Bates V. Cameron, . 96 Anderson v. Blackwood, 131 , 132, 142 Bather v. Day, . . 87 V. M'Call, . 18 Batson v. Donovan, . 95 V. N. B. Ry. Co.,. 102, 169 Baxendale r. G. E. Ry. Co. . 110 „ V. Pyper, 149 Baylis v. Lawrence, . 46 V. Walls, . 8 Beddie v. Milroy, 31,38 „ V. Wood, 128 Begbie r. Robertson, . 37,54 Annand v. Ab. Tr. Co., , 149 Behn v, Burness, . 38 Anthony v. Halstead, . 40 Bell V. Andrews, . . 89 Armistead v. White, . 87 Bennoch v. M'Kail, 58,61 Ashendon v. L. B. & S. C. By. Bernhia, The, . 117 Co., 111 Best V. Osborne, . 28, 51 Ashworth v. Stanning, 158 Bevaa v. Waters, . 85 Atkinson v. Horridge, 48 Bexwell v. Christie, . 27 Attwood V. Emery, 14 Bingham, . 4 „ V. Small, 3C , 31 Binny v. Veaux, . . 74 Auld V. M'Bey, . 134, 162 Birnie v. Straiten, . 81 ,, V. Shairp, . 167 Black V. Cassels, . . 23 Austin V. Drew, . 179 ,, V. Incorp. of Bakers, „ V. Simpson, 17, 22 . 126 Baglehole v. Walters, . 9 Blackmore v. B. E. Ry. Co., . 76 Bailey v. Forrest, 51 Blackmann v. Simmons, . 137 Bain v. Blackburn, 96 Blower v. G. W. Ry. Co., 98, 109 „ V. Sinclair, . 96 Bloxam v. Saunders, . . 14 ,, V. Strang, . 7C ,78 Bolden v. Brogden, . 49 Xll INDEX OF CASES CITED. Bolton, .... 5ECTI0.V 122 Booker v. Milne, . . . 29, 64, 65 Booth V. Mister, . 150 Boright V. Springfield, &c., Insur ance Co., .... 179 Boss V. Litton, . . . 131, 142 Bourne v. Gatliff, 104 Bradburn v. G. W. Ry. Co., 172 Bradford v. Symondson, 176 Brady v. Giles, . 155 „ V. Todd, . 66 Brand v. Wight, . . .37, 51,66 Brandt v. Dickson, 12,29 Brash v. Steel, 172 Bray v. Mayne, . 73 Bremner v. Williams, . 148 Briddon v. G. N. Ry. Co., . 10 2, 108 Briggs V. Baker, . 52 Bringloe v. Morrice, . 77 Broadwater v. Blot, 80 Broatch v. Jenkins, 32 Brocklehurst v. Man. Tr. Co., 144 Broder v. Sailliard 130 Brodie v. Tod, . . 12 Broenenburgh v. Haycock, . . 51 Brooks V. Hassal, 66 Broughton v. Atchison, . 18 Brown, .... . 123 ,, V. Boreland, . 37 „ V. Copley, . . 154 „ V. Elkington, . . 51 „ V. Fulton, . . .IS 1,136 „ V. Gilbert, . 31 „ V. Marr, . . 21 „ V. M'Connell, . . 86 „ V. M'Gregor, . 172 „ V. Nicolson, 9 „ V. Royal Insurance Co., . 182 „ V. Stapylton, . 176 Brownlie v. Miller, 31, 32 Brunsden v. Humphrey, . 167 Brydon v. Macfarlane, . 10 Buchanan v. Clyde Lighthous Trustees, . . 168 „ V. Parnshaw, . 42, 61,63 Buckingham v. Reeve, . 54 ,, V. Rogers, . 52 Budd V. Fairmanner, . . 38, 42, 61 Burkin v. Belezikdji, . . 133 Burns v. Moneypenny, . 27 Burton v. Moorhead, . . 137 JJiitlcr, The C. S., . 117 SECTION Butterfield v. Forrester, . 139, 141 Byrne v. Boadle, .... 159 Bywater v. Richardson, . 28, 51, 63 Caine v. Coulton, 12 Cairns v. Marianski, . 35 „ V. Robins, 106 Cal. Ry. V. Harrison, . 104 ,, V. Hunter, 105 „ V. Rankin, . . 20, SO, 61 Calder v. Cal. Ry. Co., 158 Camidge v. AUenby, . 12 Camoys, Ld. v. Scurr, . 59 Campbell v. Kennedy, 72, 7 3, 130 ,, V. Henderson, 40,65 ,, V. Mason, 58 V. Ord, . 162 Carmichael v. Welsh, . 128 Carr V. L. & Y. Ry. Co., . 95 Carter v. Campbell, 9 ,, V. Touissant, 18 Cashill V. Wright;, 87 Caswell V. Coare, 62 Catterall v. Hindle, 66 Cave V. Coleman, 38 Chandelor v. Lopus, 38 Chaplin v. Hawes, 143 ,, r. Jardine, 60 ,, V. Rogers, 18 Chapman v. Couston, . 25, 61 V. G. W. Ry. Co., IC 4, 106 „ V. Gwyther, . . 43 Charman v. S.-E. Ry. Co., . . 140 Chesterman v. Lamb, . . 65 Chew V. Jones, . 68, 73 Chippendale v. L. & Y. Ry. Co., . 98 Chisholm v. Farlane, . 108 Christie v. Griggs, . . 6 8, 159 „ V. Hunter, . 28 Clark V. Armstrong, . 137 ,, V. Chambers, 139 Clarke & Co. v. Miller's Trustees , 21 Clay V. Wood, . 143 Clayards v. Dethick, . . 161 Cleghorn v. Taylor, 2 Clerk V. Carfin Coal Co., . 167 „ r. Eliot, . . 60 „ V. Petrie, . 131, 132, 1 J 2, 161 Clyde Nav. Co. r. Barclay, . . 116 Clydesdale Bank v. Paul, . . 66 Coates V. Stephens, 46, 49 Coggs V. Bernard, 76, 77, 80, 92, 108 INDEX OF CASES CITED. Xlll Cohn V. Davidson, Colchester (Mayor of) v. Brook, Coleman v. Rickes, Collins V. Rodway, Colquhoun, . Coltherd v. Puncheon, Colvin V. Short, . Cook V. Eshelby, . „ V. N. B. Ry. Co., Cooley V. E. & G. Ry. Co., Combe r. L. & S. Ry. Co., Coombs V. B. & E. Ry. Co.^ SECTION 118 131 66 83, 84 122 40 12, 19 36 165 172 98, 105 18, 23 Cooper & Aves v. Clydesdale Sh. Co., . . . . 39 „ V. Barton, . . 73, 74 Cope V. Doherty, . . .117 Cork Distillery Co. r. G. & S.-W. Ry. Co. 104 Cormack v. Digby, . . .155 Cornfoot v. Fowke, . . .66 Cossar v. Marjoribanks, 32, 44, 60, 66 Cotterill V. Starkey, , . 142, 149 Cotton V. Wood, . . 131, 142, 159 Coupe Co., The v. Maddick, . 74 Couston V. Chapman, ... 57 Coventry, &c., Ins. Assoc, v. Evans, 175 Cowan V. Dalziels, . . .137 Cox V. Burbidge, . . 159, 170 ,, V. G. E. Ry. Co., ... 99 Coxon V. G. W. Ry. Co., . . 105 „ V. N.-E. Ry. Co., . . 106 Craig V. Brown, .... 40 Crawford v. Hay, . . .59 Crichton r. Keir, . . . 157,164 „ & Morrison, . . . 123 Croall V. Hunter, 39, Appx. issues iii. Croan v. Vallance, ... 60 Croft r. Alison, . . . .151 Crofts V. Waterhouse, . . 147, 160 Crouch V. G. \V. Ry. Co., . 104, 106 „ V. L. & N.-W. Ry. Co., . 92 Crowder v. Austin, ... 26 Crowhurst v. Amersham Burial Board 170 Crowley v. Cohen, . . .177 Cruden v. Fentham, . . . 146 CuUen V. Butler, . . . .185 Gumming v. Turnbull, . 160, 166 Cunningham V. Col vils, . .118 Curtis V. Drink water, . . .149 „ V. Hannay, ... 61 Curtis V, Thomas, Dakin v. Oxley, . Dalrymple v. M'Gill, . Daniels v. Harris, Danube v. Xenos, Darley Main Colliery Co Mitchell, . Davidson, . ,, v. Burnard, . ,, V. Monkland Iron ,, & Train, Davies v. Mann, . „ V. Garret, Davy V. Chamberlain, . Dawson v. Channely, . „ V. M. Ry. Co., Dean v. Keate, . Degg V. M. Ry. Co., . Derry v. Peek, Deuchars v. Shaw, Dickinson v. Follet, „ I'. Gapp, Dickson r. G. N. Ry. Co. ,, r. Zizinia, Distillers Co. v. Russell's Trs Dobbie v. Duncanson, . Dobie V. Aberdeen Ry. Co., Docherty v. Watson, . Donald v. Suckling, Donathy v. Crowder, . Donohoe v. L. & N.-W. Ry. Co, Doolan v. M. Ry. Co., Drake v. M'Millan, . Dudley v. Smith, Duncan v. Martin, „ r. Topham, Dundas v. Fairbairn; . Dunlop V. Crawford, . ,, V. Higgins, ,, V. Waugh, ,, & Co. V. Lambert, Dunnet v. Mitchell, Durie v. Oswald, . Dykes v. Hill, SECTION . 28 120 150 113 167 Co 40, 185 162 . 122 139, 161 71, 116 155 87 170 73 150 31 51, 55 55 40 94, 95 40, 45 . 18 . 36 . 172 132, 160 22 . 85 ., 102,115 . 105 . 29 . 149 . 34 . 14 46, 58, 65 . 58 . 169 . 38 . 15 . 31 . 56 37, 49 Eaglesfield v. M. of Londonderry, 66 Eaves v. Dixon, ... 45, 52 Eden v. Blake, .... 27 ,,' V. Parkinson, ... 37 Edinburgh and Leith Brewing Co. V. Reid, ... 68, 64 XIV INDEX OF CASES CITED. SRC riON SECTION Edmond v. Mowat, . 17 Gallacher v. Burrell, . . 151 Ehrenbacher & Co. v. Kennedy, 30, 65 Gapp V. Gandonati, . 71 Eisten v. N. B. Ry. Co., . 167 Gardiner v. M'Leavy, 40, 46, 49,51,57 Elbinger v. Armstrong, . 169 Gardiners v. Macdonald, . 71 Elder v. Croall, . . 149, 172 Garment v. Barrs, . 51 Ellis V. Loftus Iron Co., . 137, 170 Garton v. B. & E. Ry. Co., . . 95 Elmore v. Stone, . . 18 Gassiot V. Carpmeal, . . 139 Elphick V. Barnes, . 61 Gavin v. Mair, . . 127 Elton V. Brogden, . 46 Geddes v. Pennington, 31, 36, 38, 53, 60 „ V. Jordan, . . 46 Gibbons v. Pipper, . 160 Emmerson v. Heelis, . . 27 Gibson v. Milroy, 131, 146 Everard v. Hopkins, . . 84 Gilbertson v. Richardson, . . 170 Everet v. Collins, . 12 Gill r. M. S. & L. Ry. Co., 101 , 105, 109 Everett v. Lond. Assoc. Co . 179 Gillespie v. Russell, . 32 Ewart V. Hamilton, 37, 51 Gilmer v. Galloway, . 37 Gladwell v. Stegall, . . 83 Faulds V. Corbett, 26, 28 Glenfruln, The, . . 118 „ V. Townsend, . 66, 150 G. N. Ry. Co. V. Swaffield, . 104 Fenn v. Harrison, 12, 66, 117 Goodman v. Kennell, . 153, 155 Ferguson, Ex j^arte, . 117 ,, V. Taylor, 135, 160 „ V. Earl of Kinno ull, . 168 Gordon v. Rolt, . . 155 Ferns v. N. B. Ry. Co., 147, 149 „ V. S.-W. Ry. Co., . 106, 114 Ferrier v. Dodds, . 2/ , Appx. iii. „ V. Suttie's Trustees, . 89 Ferrier v. Sandieman, . . 187 Graham v. Western Bank, . . 30 Fielder v. Starkin, . 60 „ V. Wilson, 21,57 Finegan v. L. & N.-W. Ry. Co., . 143 Grand Trunk Ry. v. Jennings, . 172 Firth V. Bowling Iron Co., . 170 Grant, .... . 122 Fisher v. Ure, . 51, 5^ !, Appx. iii. „ V. Cal. Ry. Co., . 162 Fleet V. Morrison, . 8, 15 „ V. Fletcher, 5 Fleming, . 125 „ V. Glasgow Dairy Co., . 131 „ V. Airdrie Iron Co. 9 Gray v. Binny, . . 35 „ V. Smith, . 22 „ V. N, B. Ry. Co., . 101 Forbes v. Caird, . . 86 Grebert-Borgnis v. Nugent, . 169 „ V. Campbell, . . 14 Green v. Baverstock, . . 26 „ V. Master of Steele, . 108 Greenhorn v. Addie, . . 167 Foreman v. G. W. Ry. Co., . 110 Greenland v. Chaplin, . . 161 Forfar, . 123 Greenvs'ay v. Marshall, . 51 Forth V. Simpson, . 85 Greer v. Stirlingshire Road Fowler v. Locke, . 68, 69, 156 Trustees, .... 140, 162 Fowles V. G. W. Ry. Co., . . 105 Gregory v. N.-W. Ry. Co., . 111, 114 Franklyn v. Lament, . . 27 Gregson v. Gilbert, . 184 Fraser v. Bell, . 137 Grieve & Son v. Kiinig, . 14 „ V. Dunlop, 135, 150 Groucott V. Williams, . SO „ V. Hood, . 158, 164 Guerreiro v. Peile, . 66 ,, V. Jones, . . 54 Gunn V. Gardiner, 139, 149 ,, V. Younger & Sons, . 154 Guy Mannering, The, . . 116 Frasers v. Ed. St. Tram. Co ., . 162 Freedom, The, . 114 Hadley v. Baxendale, . . 169 Fulton V. Watt, , . 48 Hagart r. Inglis, . 80 Hain v. Laing, . 20, 28 Gabay v. Lloyd, , .17 6, 184, 186 Hale V. Rawson, . 19 Galer v. llawson. . 145 Halesv. L. &N.-W. Ry. Co., . 102 INDEX OF CASES CITED. SECTION SECTION Hall V. Rogerson, . 51 Hodgson V. Loy, . . 23 „ V. Scott, . 11 Holmes v. Clark, . 157 Hamilton v. Hart, 2, 51, 65 ,, V. Mather, . 160 „ V. Robertson, . 58 Holyday v. Morgan, . 39, 46 „ V. Thames Ins. Co., . 185 Hopkins v. Tanqueray, 37,38 „ V. Western Bank, 4 Horn V. N. B. Ry. Co., . 167 Hammack v. White, . 137, 160 Horsfall r. Fauntleroy, . 28 Hammond v. Bussey, . . 169 Hotham, . 120 Handford r. Palmer, . . 73 Houldsworth r. City of G' . Bank, 30 Hansen v. Craig, 8 Howard v. Sheward, . . 66 Hanson v. Myer, . 10 Howie V. Lovel, . 92 Hardie v. Austin & M'Aslan, 38,39,58 Hudson V. Baxendale . 104, 107 Hardinge, .... . 75 Hughes, Ex parte, . 167 Hardingham v. Allen, . 28 ,, V. Quentin, . 171 Harle v. Ogilvie, . 15 Hunter v. Duff, . 10 Harpers r. G. N. Ry. Co., . 137, 160 ,, V. M'Gown, . 117 Harris v. M. Ry. Co., . 112 „ r. N.-E. Bank, . 90 „ V. Mag. of Leith, 139, 168 „ V. Stevenson, . . 34 „ V. Mobbs, 139, 170 Hutchison v. Henry, . 58, Appx. iii. „ V. Nickerson, . 25, 28 r. Y. & N. B. Ry. Co., 158 Harrison v. L. B. & S. C. Ry. Hyde v. Davis, . . 52 Co., ... 92 , 110, 111 Hyman v. Nye, . 68, 14/ •, 148, 149 Hart V. Baxendale, . 115 Harvey v. Lovell, Hastie v. Campbell, 92 Ida, The, . 116, 118 . 8, 15 Illidge V. Goodwin, 135, 150 Hasten v. Ed. St. Tr. Co., . 158, 164 Inglis V. Buttery, . 45 Hawkins v. Cooper, 130, 142 „ V. Port Eglinton, &c., Co., 23 Haws V. Phil. Fire Ass. Co., . 179 Insurance Co. v. Martin, . 175 Hay V. Wordsworth, . Hay's Trustees v. Young, . Head v. Tattersal, . 82 lona, The, , . 116 . 130 61, 63 lonides, The, v. Universal Insur- ance Co., ..... 184 Hemming v. Parry, Henckell du Buisson v. Swan . 37 , . 8 Ireland v. N. B. Ry. Co., Isaacs V. Royal Insurance Cc . 140 ., . 180 Henderson v. Warden, . 89 Israel v. Clark, . . 149 Hendrie v. Stewart, 28, 37, 51 Jackson, . 125 Hennigan v. M'Vey, . . 137 „ V. Cummins, . . 85 Henry v. Dunlop, . 16 Jaffe V. Ritchie, . 7, 9, 58 „ V. Wyper, . 33 Jardine v. Campbell, . . 51 Hepburn v. Richardson, . 89 „ V. Elliot, . . 34 Herriot v. Unthank, . 160, 166 „ r. Stonefield Laundry Heugh V. L. & N.-W. Ry. Cc )., . 104 Co.,. 14 2, 144, 161 Hibbert v. Bruce, . 30 Joel V. Morrison, . 153 Hicks r. N. B. Ry. Co.. . 172 Johnson v. Blenkensopp, . 167 Higgins V. Dunlop, 6 V. Clark, . 6,34 Higgs V. Thrale, . 52 ,, V. Greaves, . 120 Hill V. BaUs, . 169 ,, V. Lindsay, . . 158 „ V. Gray, 26, 32 ,, V. Macdonald, . 19 Hillier v. Allegheny, &c., Co , . 179 ,, V. Mid. Ry. Co., 92, 95, 102 Hinchcliffe v. Barwick, 28, 61 Johnston v. W. Scot. Ins Co., . 179 Hiscox V. Greenwood, . 66 Johnstone, . . 124 Hodgman v. W. M. Ry. Co., 94, 110 „ & Alexander, . 122 Hodgson V. Davies, 5, 12 „ f. Rankine, 68, 73 XVI INDEX OF CASES CITED. Jones V. Burford, „ V. Bright, „ V. Boyce, „ V. Cowley, , , V. Festiniog Ry. ,, V. Just, ,, V. Pearle, SKCTION . 158 . 37 142, 147, 149 . 37 Co., . 145 9 . 88 Kain v. Old 45 Kay, 125 Kearney v. L. B. & S. C. Ry. Co., 159 Keates v. Earl of Cadogan, . 9, 32 Keddie v. N. B. Ry. Co., . .169 Kendall v. L. & S.-W. Ry. Co., . 109 Kennedy v. Panama, fee, Co., . 30 Kent V. Mid. Ry. Co., . . .105 Kiddell v. Barnard, . . 46, 49 King V. Hart, . . . .127 ,, V. Spur, .... 156 Kirby v. G. W. Ry. Co., . .110 Kopitoff V. Wilson, . . .118 Koster v. Reid, . . . .187 Laertes, The, . . . .118 Laing v. Darling, ... 82 Lambert v. Harrison, . . . 139 Lane v. Cotton, .... 95 Lang V. Bvmce, . . . 19, 28 Laugher v. Pointer, . . .155 Lavaggi r. Pirie, . . .10 Lawrence v. Aberdein, . 176, 184 Lawrence v. Jenkins, . . .170 Lee V. Riley, . . .137, 170 Leuw V. Dudgeon, . . .110 Lewis V. O. W. Ry. Co., 110, 111, 112 ,, V. Peake, .... 46 Lickbarrow v. Mason, ... 24 Liddard v. Kain, .... 37 Liddell, 122 Limpus V. Gen. Omnibus Co., 152, 154 12 168 116 143 90 104 120 . 23 35 Appx. iii. . 135, 161, 162 130, 148, 149, 159 . 150 Linn v. Shields, . Liq. of W. Bank v. Douglas, Liver Alkali Co. v. Johnston, Lloyd V. Ogleby, . Lord Advocate v. Forgans, . L. & N.-W. Ry. Co. v. Bartletfc, „ V. Hughes, Louson V. Craik, . Love V. Marshall, Lynch v. Nurdin, Lyon V. Lamb, . Lyons v. Martin, SECTION M. S. J. & A. Ry. Co. v. Fullarton, 138 Mac (The), 117 M'Arthur v. Croall, . . .149 V. Miller, . . .130 Macaulay v. Buist, . . . 159 M'Bey v. Gardiner, . . 59, 60, 61 ,, V. Reid, . 37, 59, Appx. iii. M'Cance v. L. & N.-W. Ry. Co., 110, 115 M'Connell v. Murphy, . . 2, 38 M'Connochie v. G. N. S. Ry. Co., 102 M'Cormick v. Rittmeyer, 20, 36, 39, 60, 61 M'Dermaid v. Edin. St. Tram. Co.,. . . . 134,144,161 M'Donald v. H. Ry. Co., . .102 M 'Donald, . „ V. Henderson, „ V. Westren, M'Donnell v. Ettles, . M'Farlane v. Taylor, . 58 M'Farlane v. Thomson, M'Fee v. Pol. Com. of B. M'Gregor v. Ross, M'Guire v. Russell, Macintyre v. Carmichael, Mack V. Allan & Simpson, M'Kean v. M'lvor, M'Kechnie v. Couper, . Mackenzie v. Goldie, . Mackie v. Riddell, M'Kirdie r. Anstruther, M'Lachlan v. Road Trs., M'Laren v. Rae, . M'Laughlin v. Pryor, M'Lean v. Russell, ,, V. Warlock, M'Lennan v. Gibson, M'Mahon v. Field, M'Manus v. L. & Y. Ry. Co M'Martin v. Hannay, . M'Master v. Cal. Ry. Co. M 'Michael v. M 'George, M'Millan & Others, . M'Nally v. L. & Y. Ry. Co. M'Naughton v. Cal. Ry. Co M'Neil V. M'Neil's Trs., M'Pherson v. Christie, „ V. Sutherland, M'Rae v. Ed. St. Tram. Co., Mann v, Stephens, . 124 25, 28 . 21 . 87 Appx. iii. . 158 . 149 . 162 . 158 . 137 80, 168 . 104 . 142 . 168 . 41 . 35 . 140 135, 151 . 155 139, 155 . 80 Appx. iii, . 169 95, 98, 110, 111 163 172 50 123 111 130, 157 161 30 87 72 6 83 INDEX OF CASES CITED. SECTION Manzoni v. Douglas, . . 160 Mainprice v. Westley, . 27 ^largetson v. Wright, . 39,51 Marquis v. Ritchie, . 74 Marston v. Miller, . 21 Martin v. Ewart, . 52 „ V. Wards, . 151 155, 162 Matheson, .... . 124 Matson v. Baird. . . 140 Matthews v. Parker, . . 51 Maule V. Laing, . Appx. iii. Maxwell r. Stevenson, . 16 ., V. Todridge, . . 81 Meikle V. Pollard. . 22 Melrose v. Hastie, 18, 23 Melville r. Critchley, . . 65 Membery r. G. W. Ry. Co., . 164 Mensard r. Aldridge. . 28, 63 Menzies, .... . 75 Menzies r. N. B. Ins. Co., . . 179 Mersey Docks, &c., v. Gibbs, . 168 Metzenburg r. H. Ry. Co. , . . 106 Mews V. Carr, . 28 Meyer v. Dresser, . 120 Michael v. Alestree, . . 137 Miller, .... 121, 124 Miller r. Paterson, . 89 ,, V. Harvie, 135, 151 ,, r. Lawton, . 66 Mills V. Ins. Co. . . 182 Milne & Co. v. Miller, 8 Mitchell V. Crassweller, . 153 Mitchell V. Wright, . . 29 Moess, &c., Co. r. Leith & Co , . 118 Moffat, .... . 71 Moffat f. Bateman, 150, 155 Moffat V. Park, . . 161 Moore r. G. N. Ry. Co., . 112 „ r. M. Ry. Co., . . 114 Moreton v. Hard em, . . 168 Morewood v. Pollock, . . 117 Morgan v. Gen. Omnibus Co., . 167 Morgan r. Ravey, . 87 Morison v. Gray, . 23 Morran v. Waddell, . 140, 162 Morrison v. Statter, . . 66 Morton v. Abercromby, . 24 „ V. E. & G. Ry. Co., . 172 Moyes v. Greig, . . 150 M. S. L. Ry. Co. v. Brown, . 112 Mullett V. Mason, . 169 Mulliner r. Florence, . 22, 88 SECTION Murdoch v. Greig, ... 21 ]Murphy v. Bell, . . .177 ^lurray, 26 Mnschamp v. L. & P. Ry. Co., 95, 105 Myers v. L. & S.-W. Ry. Co., . 102 N. B. Ry. Co. V. Wood, . . 167 Napier v. Kissock, ... 89 Newlands v. Leggat, . . 49, 61 NicoU V. Greaves, . . .167 Nichols V. Marshland, . . .160 Nicholson v. Bower, . . .18 Nitro-phosphate, &c., Co. r. St. K. Docks Co., . . . .160 North V. Smith, . . . .150 Notara, The, . . . 116, 118 Nugent V. Smith, . 87. 92, 107, 108 O'Hanlan v. G. W. Ry. Co., . 169 Onslow r. Eames, ... 50 Orchard r. Rackstraw, . . 85 Oxlade v. N.-E. Ry. Co., . . 94 Padgett r. M'Nair, ... 65 Pardington r. G. W. Ry. Co., . 113 Par.sons r. Gingell, . . 85, 88 Pasley v. Freeman, . .37 Pateshall v. Tranter, ... 61 Patten v. Rea, . . . ,155 Paxton V. N. B. Ry. Co., . 100, 111 Pa5me v. Cave, .... 25 „ V. Leconfield, ... 27 Peddie v. Rodger, ... 84 Peebles v. Cal. Ry. Co., . 110, 114 Peek V. Gurney, . . 31, 32 „ V. N. St. Ry. Co., 110, 112 Phillips i>. Clark, . . 114,116 r. Edwards, . . .118 V. Nicoll, . 137, 160 Pickering v. Busk, ... 66 V. Dowson, . . 40, 45 Pickford V. G. & J. Ry. Co., . 95 Pippin V. Sheppard, Pirie v. Magistrates of Aberdeen, Pluckwell V. Wilson, . Pochin r. Marjoribanks. Pollock V. M'Adam, . ,, V. M'Andrew, . Pollok V. Burns, . Potter V. Faulkener, . Powell V. Fall, . ,, V. Sali.sbury, 143, 83 160 160 . 18 51, 52, 61 5,67 34 158 145 170 XVlll INDEX OF CASES CITED. SECTION Powles V. Hider, . . . .156 Precious v. Abel, . . . . &Q Priestley v. Fowler, . . .157 Pullars V. Walker, . . 21, 59, 74 Purdon v. Rowatt's Trs., . . 4 Pyper v. Thomson, . 74, 75, 160 Quarman v. Burnett, . . .155 Radley v. L. & N.-W. Ry. Co., . 161 Rain V. G. & S.-W. Ry. Co., 100, 111 Ralston v. Cal. Ry. Co., 100, 107, 109 „ V. Robb, . . 9, 39, 46, 51 Ramsay v. Thomson, 142, 143, 144, 161 Ramsden v. L. & Y. Ry. Co, Randall v. Newson, Randleson v. Murray, Ransan v. Mitchell, Rayner v. Mitchell, Redhead v. M. Ry. Co., Reeves v. Capper, Reg. V. Brooks, . „ V. Cook, ,, V. Jones, „ V. Murray, . „ V. Swindall, . Reid V. Jones, „ V. King, „ V. Mackie, . Renwick v. Von Rotberg, Rex V. Pease, „ V. Timmins, . Reynell v. Sprye, Rice V. Baxendale, Richard v. Moore, Richardson v. Brown, . „ V, Goss, V. K-E. Ry. Co „ V, Roscoe, . Richmond v. Railton, . „ V. Russell, . „ V. Smith, . Rigby V. Hewitt, Riley v. Baxendale, ,, V. Home, . Rimmel v. Sampayo, . Ritchie v. Ritchie's Trs., Roberts z^.G. W. Ry. Co., Robertson v. Connolly, „ V. Fleming, „ V. Macintyre, „ V. Menzies, ,, V. Ogle, SECTION . 24 38, 41, 51 . 112 . 28 Appx. iii. . 130 Robertsons v. Aitken, . Robeson v. Waugh, Robinson v. G. W. Ry. Co., „ V. Rutter, . Robson V. Thomson, . Ronaldson v. Ballantine, Rooth V. W. M. Ry. Co., 103, 111, 113 ,, V. Wilson, ... 80 Rose V. Johnston, . 39, 41, 45, 54 Rough V. Moir, . 4, 37, 38, 39, 58 Rourke v. W. Colliery Co., ■ • 155 V. M'Clew's Trs., . 40 Rowan v. Coates Iron Co., . . 58 138 . 58 . 95 . 60 . 153 98, 148 . 22 . 75 . 122 . 124 121, 131 . 123 . 124 . 138 . 96 27, 137 . 145 . 123 . 32 . 169 . 18 39, 40, 42 . 23 94, 100 7 . 11 . 172 . 87 . 149 . 157 . 92 . 66 4 . 103 52, 80 . 83 . 17 . 69 . 74 Russell V. Cal. Ry. Co., „ V. Ferrier, . 140 52, 56, 61 Salmon v. Ward, . 38, 39 Salvin v, James 180 Sammel v. Wright, . . .155 Saunders v. Plummer, . . 87 Scarfe v. Morgan, ... 85 Schneider v. Heath, ... 32 Scholefield v. Robb, . . 53, 55 Scott, .... 122,124 ,, V. Mayor of Manchester, . 168 „ V. Hannah, . . .39, 52, 56 „ V. Steele, 9, 37, 38, 39, 53, 54, 56, 59 „ V. Wilson, .... 35 Scotthorn v. S. S. Ry. Co., . . 97 Scripture v. Lowell, . . .179 Seagrave v. Union, &c., Ins. Co., . 177 Searle v. Laverick, . . 80, 86, 87 Seton V. Paterson, Settle V. Garner, Seville & Co. v. Colvil, Seymour v. Greenwood, Sharp V. Powell, . Shaw V. Croall, . „ V. Donaldson, Shepherd v. B. & E. Ry. Co., „ V. Kain, Sheridan v. M. G. Ry. Co., . Sheriff v. Marshall, . Shields V. Davies, Shiell V. Guthrie's Trs., Shiells V. Edin. & Gl. Ry. Co., „ V. Sc. Ass. Corporation, Sim V. Grant, Simkin v. L. & N.-W. Ry. Co., Simons v. G. N. Ry. Co., Simpson v. Cal. Ry. Co., 71,72 . 52 . 118 . 151 . 170 127, 135 . 71 . 106 . 37 . 112 52, 61 . 120 26, 28 155 , 188 17,90 . 138 110, 111 140 INDEX OF CASES CITED. SECTION Simson v. L. Gen. Omnibus Co.,. . 148 Sinclair v. M'Ewan, 2 Siordet v. Hall, . . 116 Sleath V. Wilson, . 153 Slim V. G. N. Ry. Co., . 96 Smart v. Alison, . 51 Smart v. Begg, . . 58, 59, 60 Smith V. Arnot, . . 90 „ V. Baker, . . 164 V. Chadwick, 31 V. Cook, . 80 V. Dear love, . 88 V. Green, . . 169 V. Lawrence, . 155 V. M. Ry. Co., . . 93 V. Melvin, . . 75 V. Napier, . 7 V. 0 'Bryan, 39, 51 V. Parsons, . 40 Bros. V. Scott, . 59, 62 Sneesby v. L. & Y. Ry. Co , 103, 170 Spencer v. Harding, . . 25 Spiers v. Drysdale, . 149 Staunton v. Richardson, . 118 „ V. Wood, . 14 Steel V. State, &c., Co., . 116,118 Steins v. Hutchison, . . 23 Stephen v. Thurso Pol. Com ., 139, 155 Stevens v. Woodward, . 154 Stevenson v. Pontifex, « . 167 Stewart r. Cal. Ry. Co., 114, 173 „ V. Crawley, 96, 100 „ V. Gordon, . 96 „ r. Jamieson, . 37, 58 „ V. Kennedy, . 4 V. M-NicoU, . . 2, 65 ,, V. Stables, . 89 Stoppel V. Stoddart, . 24 Storey v. Ashton, . 153 Strachan v. Auld, . 27 „ V. Knox, . 23 Straiton, . 71 Street v. Blay, . 61 Streeter v. Horlock, . . 97 Stuart V. Kennedy, . 10 Stuckley v. Bayley, . 37 Sutherland v. M. Ry. Co., . 157 „ V. Sun Fire Offic e, . 182 Sutton V. Temple, 68,69 Sword V. Milloy, . 15 , V. Sinclairs, . 10 SECTION Taff Vale Ry. Co. v. Giles, . . 106 Tarleton v. Staneforth, . . 180 Tatham v. Hodgson, . . . 184 Tattersall v. N. Steamship Co., . 116, 118, 1.19 Taylor v. G. N. Ry. Co., . .102 „ V. Provan, ... 34 Tempest v. Fitzgerald, . . 18 Thom V. Macbeth, ... 26 Thomas v. Quarter maine, . . 164 Thompson r. Patteson, . . 51 Thomson v. Davenport, . . 66 „ V. James, ... 6 V. Miller, . 39, 59 „ V. Stewart, . . . 150 Thornton v. Charles, ... 5 Tilling V. Balmain, ... 75 Tod V. Armour, .... 2 Tolhausen v. Davies, . . .151 Toomey v. L. B. & Sc. Ry. Co., . 159 Trotter v. Buchanan, ... 75 TuflFv. Warman, . . .161 Turley v. Thomas, . . .143 Turnbull v. Maclaen, . . .19 Turrell v. Crawley, ... 88 Undaunted, The, . . . .118 Vale V. Bayle, . . .15 Van Oppen v. Arhuckle, . . 7 Van Toil v. S.-E. Ry. Co., . . 110 Vaucamps v. Campbell's Trs., 38, 55 Venables v. Smith, . . . 156 Verdin Bros. v. Robertson, . . 7 Vickers v. Hertz, . . .18 Victorian Ry. Com. v. Coullas, . 170 Virtue V. Alloa Pol. Com., . 139, 168 Wakelin v. L. & S.-W. Ry. Co., 118, 161 Wakeman v. Robinson, . 138, 160 Walker v. Barling, ... 83 ,, V. Milne, ... 6 Wallace v. Miller, ... 29 „ V. Woodgate, ... 85 Waller v. M. G. Ry. Co., . . 115 Wanstall v. Pooley, . . .150 Ward V. Hobbs, . . .9, 38, 169 „ V. Gen. Omnibus Co., . 151 Wardlaw v. Mackenzie, . . 36 Warin & Craven v. Forrester, . 169 Warlow V. Harrison, . . 26, 27 Watkins v. Reddin, . . .145 XX INDEX OF CASES CITED. 153, Watson V. A. V. & B. Ry. Co., „ V. Denton, „ V. Scott, . Watt V. Findlay, Wayde v. Lady Carr, Weblin v. Ballard, Webster v. Cramond Iron Co., . Weir V. Coltness Iron Co., . Wemyss, Earl of v. Seton, . West India Tel. Co. v. Home, Western Bank v. Addie, ,, ,, V. Bairds. ,, ,, V. Douglas, . Western Horse Ins. Co. v. O'Neill, Weston V. Downes, Whatman v. Pearson, Wheatly v. Patrick, Wheeler v. Collier, Wheelton v. Hardisty, White & Co. V. Dougherty, Whitehead v, Anderson, „ V, Straiton Wight V. Burns, . „ V. Inglis, . Willan V. Carter, Williams v. Dobbie, „ V. Holmes, „ V. Lloyd, ,, V. Richards, Williamson v. White, Willoughly V. Horridge, Wilson V. Boyle, . ,, V. Brett, . „ V. Glas. Tram. Co., „ V. Johnstone, . „ V. L. & Y. Ry. Co., SECTION . 115 . 51 . 139 23, 29 . 143 . 164 14 . 167 . 58 . 185 . 30 . 168 . 168 175 61 154 . 76 . 26 31 . 28 . 24 . 81 167, 168 . 96 . 48 116, 118 28, 88 . 116 131, 142 87 92 164 78 167 128 169 SECTION Wilson V. Marshall, 61 „ V. M. of Breadalbane, 10 „ V. Merry, . 158 „ V. Orr, 74 „ V. Walker, 5 Wise V. G. W. Ry. Co., . 106, 111 Wolcott V. Eagle Ins. Co., . . 176 Wolfe V. Home, . . 27 Wood & Co. V. Peebles Rv. Co., . 107 „ V. Smith, . . .38, 39,40 Woodhead v. Gartness Min. Co., 1 --0, 158 Woodley v. M. D. Ry. Co.. . . 164 Woolf V. Beard, . . 161 Worm V. Storey, . . 118 Wright V. Blackwood, . 37, 45 „ V. Pearson, . 138 „ r. Pole, . . 179 ,, V. Rowan, . 128 Wylie & Lochhead v. M'Elroy, 6 Wyllie V. Cal. Ry. Co., . 158 Wyper v. Harvey, 17 Xanthos, The, . . . .118 Yarmouth v. France, . . 158, 164 Yates V. White, . . . .172 Yeats V. Pym, .... 60 „ V. Reid, . . . . 9, 28 York V. Grindstone, ... 87 Yorke v. Greenhaugh, . 85, 87 Young V. Colt's Trs., . . .151 „ V. GifFen, 9, 39, 90, . Appx. iii. V. Glas. Tram. Co., . 172, 173 Zunz V. S.-E. Ry. Co., . .110 THE LAAV OF HORSES. CHAPTER I. SALE. Nature of tlie Contract, 1. Horses as the subject of Sale, 2. Completion of the Contract, 3. Essential Error, 4. Proof of the Contract, 5. Offer and Acceptance, 6. Order, 7. Risk, 8. Implied Conditions as to Quality, 9. Price and Payment, 10-12. Delivery, 13-19. Respec- tive Remedies on Breach of Sale, 20. Sale on Approbation, Sale and Return, and Hire and Sale, 21. Retention, 22. Stoppage in Transihi, 23-24. Sale by Auction, 25-28. Rejection on Insolvency, 29. Fraudulent Transactions, 30-35. Rescission, 36. The sale of horses differs little from the sale of other com- modities ; and the general principles of the contract of sale, as far as they apply to the subject under consideration, will be treated very briefly. There are certain peculiarities in the sale of horses, however, of greater importance, such — e.g., as warranties and sale for a specific purpose,(a) which will be treated hereafter at greater length. 1. The Contract. — Sale is a consensual contract, com- pleted by consent alone. The consent must be given by one capable of consenting ; it must be free, serious, and deliber- ate,(6) and where cither of the parties is incapacitated by nonage, (c) insanity,(cZ) or intoxication, (e) or if there be (rt) See Chap. ii. (/>) B.C. i. 313, 458 ; Stair, i. 14, 1 ; Ersk. iii. 3, 2, see § 30, ct seq. (c) B.C. i. 128. (d) B. Pr. 10. (e) See § 34. B 2 HORSES AS THE SUBJECT OF SALE. eiTor,(a) constraint,(6) or fraud,(c) of such a degree as to show that the consent and engagement have not been the deliberate act of the parties, the sale is void,((i) and may be set aside, (e) The seller binds himself, under the contract of sale, to deliver the animal purchased, and the buyer to pay the price ; but the property does not pass till he has delivered the animal to the buyer, or to some one on his behalf (/) 2. Horses as the subject of Sale. — It is necessary to the validity of the contract of sale that the horse or horses pur- chased be determinate, or capable of being determined ; but it is not necessary to the contract that they be identified ((/), — that is to say, the horse or horses may be specific animals, clearly distinguished, or set apart, out of a lot, for the buyer ; or they la&j be a determinate number of animals, described generically, as occurs — e.g., in the case of a sale of so many out of a consignment of ponies. When a definite, or specific horse, capable of being identified, is sold, it lies at the buyer's risk ; the property of it passes, according to English law; and the title to demand it, passes to the buyer, in Scotland, but not the property till it is delivered, (/t) But where a certain number of ponies, say, is sold, neither the property in England, nor the right to them in Scotland, passes, nor does the risk of them fall on the buyer, until the stipulated number is measured off and separated from the bulk.(i) When a pair of animals is sold, or a greater num- (a) B.C. i. 314, §§ 4, 30. (6) B.C. i. 314. (c) B.C. i. 316, §§ 30-35. (d) As to when the contract is not void, but only voidable, see § 30. (e) See § 36. (/) Ersk. iii. 3, 2. In England, the property passes when the contract is com- plete, 2 Blackst. 398. ig) B. Pr. 91 ; B.C. i. 461, note. (A) §§ 13-18, provided that in sale in open market, in England, the conditions of sale have been adhered to. (i) B. Pr. 91 ; Ersk. iii. 3, 7 ; Brown on Sale, 44, et seq. HORSES AS THE SUBJECT OF SALE. 3 ber at a slump sum the bargain is entire, there being no evidence as to the price of each, (a) and is not final, unless accepted as a whole ; and, consequently, the buyer cannot, at the same time, reject one and keep the rest, but must keep or reject all ;(6) but if the animals are purchased each at a fixed price, or there be anything to show that the sale of each is contemplated as a separate bargain, and the seller's title to any of them should fail, the buyer may keep the rest at the price fixed.(c) The mere fact of the price a pair or two separate animals being proved to have been spoken of as at so much per head, is not conclusive evidence of a definite price for each, and yields to evidence of the intention of parties to buy or sell both or neither, (t?) An unborn foal may be the subject of sale ;(e) but in such a case the contract is an agreement to sell, not an actual sale, and the risk is with the seller. (/) By the law of Scotland the vitium reale attaching to stolen horses is indelible till its return to the original owner. Consequently a horse stolen in Scotland is recoverable from a bona fide purchaser. By the law of England and Ireland, however, it is removed by subsequent sale in market overt ; but it is not decided that the vitium reale attaches in Scot- land when the theft has taken place in a foreign country. This question was raised, but not decided, in a recent case, where a farmer in Ireland raised an action aofainst a farmer in Scotland for delivery of a horse in the possession of the defender, which the pursuer alleged had been stolen from him in Ireland. The defender stated that the horse had been bought by him in Scotland from a man who had purchased it in open market in Ireland. The pursuer (a) Dig. de lege Aqiiilia, 9, 2, Lex 22, 1. See Lord Rutherfurd Clark in Sinclair V. M'Ewan, 1887, 25 S.L.R. 76 ; and Badgly (J.), in M'Connel v. Murphy, 1873, L.R. 5 P.O. 205, 209. (b) Cleghorn v. Taylor, 1856, 18 D. 664. (c) B. Pr. 91 ; B.C. i. 462. See also Hamilton v. Hart, 1830, 8 S. 596, as to rejection. (d) Stewart v. M'Nicoll, 1814, Hume, 701. (e) B. Pr. 91 (2) ; Ersk. iii. 3, 3. {/) Benj. 82. 4 SALE COMPLETION ERROR. admitted, that according to the law of Ireland, a person from whom a horse had been stolen, which was afterwards sold with certain formalities in open market there, could not claim it from the purchaser unless he had within six months prosecuted the thief to conviction, and that no conviction had taken place in this case. On consideration of the evidence, it was held that the sale took place in open market in Ireland, and that as the pursuer had neither averred nor proved that the sale in open market was defective in any of the requisite formalities, the defender was entitled to absolvitor, (a) 3. Completion of the Contract. — The contract is complete when the parties have come to an agreement : the buyer to pay a definite price, the seller to deliver a certam horse ; (h) and where there is a bargain to deliver before a certain time, and one party renounces and declares the bargain off, that is a breach of contract ; and the other party may sue for specific implement or damages, (c) These two elements, — the certain article and the price, — are the essentials of all sales; and, therefore, if there be any essential error as to these, there is no contract. (cZ) 4. Essential Error. — If one buys too dear or sells too cheap, the law will give him no relief against his folly, pro- vided there be no fraud on the part of the seller, (e) But when an error, either as to the horse or horses bought, or as to the price paid, or to be paid, for it or them, is of such a kind as to prevent a bargain being concluded according to the intention of the parties, it is essential error, (/) and is a ground for the contract being annulled, or for what has been (a) Todd V. Arjnour, 1882, 9 R. 901. (h) B. Pr. 89. (c) .Da7iuhe v. Xenos, 1862, 31 L.J., C.P. 284. (d) Ersk. iii. 1, 16 ; Stair, i. 10, 14 ; B. Pr. 90. (e) B. Pr. 11. (/) Stair, i. 10, 13 ; Ersk. iii. 1, 16. PROOF. 5 paid or delivered being recovered ;(«) and in pleading, it is necessary to s]3ecify precisely the nature of the error alleged, and if several errors are set forth, a separate issue must be taken for each. (6) Thus, if one horse be mistaken for another ; (c) or there be a mistake as to the number or quality of those sold;(cZ) or if a man ignorantly purchase what is his own already ;(e) or if there be an essential error about the price; either party may resile, or the contract may be reduced (/) at the instance of either party ; but to ground an action of reduction, the error must be either common to both parties, or have been induced by the conduct of him who seeks to maintain the contract. (^) 5. Proof of the Contract. — Writing is not necessary to the purchase of horses (/i) in Scotland, but it is so in Eng- land, under the Statute of Frauds ;(i) and the bargain may be proved prout de jure — i.e., by a general proof of facts and circumstances not limited to the writ or oath of the defender. (_/) If the bargain be made verbally between the parties themselves, the evidence of two witnesses is usually required, but one is sufficient if there are circumstances corroborative of it;(Z;) if by letter, the letters holograph, or signed by the parties, are sufficient evidence of the contract. (Z) If the sale be through a broker, his authority must be (ft) B. Pr. 11 ; Lord Justice-Clerk Hope in Purdon v. Rowalt's Trustees, 1856, 19 D. 206, p. 220. See also Lord Deas in Mougli v. Moir, 1875, 2 R. 529, 535. (6) Ritchie v. Ritchie's Trustees, 1866, 4 M. 292. (c) Hamilton v. Western Bank, 1861, 23 D. 1033. (d) Rank. Ersk. Pr. iii. 1, 6. (c) Bingham, 1748, 1 Ves. 126. (/) § 35. [g) Stewart v. Kennedy, 1890, 15 App. Ca. 108 ; 17 R., H.L. 1. (h) Ersk. iv. 2, 20. (i) See § 18. 0') Pollock V. M'Andreiv, 1828, 7 S. 189; Wilson v. Walker, 1856, IS D. 673 ; Dickson on Evidence, § 558. (k) B. Pr. 89. {I) B. Pr. 89 ; Dickson on Evidence, §§ 793-796. C OFFER AND ACCEPTANCE. proved.(a) A bought and sold note (h) is evidence of the bargain ; and it is not necessary in Scotland for a signed note to be entered in the broker's books, (c) Should the broker not previously communicate the buyer's name, the seller may, on its disclosure, reject the bargain within a reasonable time, if he find the buyer's credit bad.(tZ) 6. Offer and Acceptance. — An offer is an obligation pro- visional on acceptance. It is presumed to continue till acceptance, but may be recalled before acceptance, (e) It may be made by parole, by letter, or tacitly, as when horses are sent without or contrary to order, in which cases acquiescence is acceptance.(/) An absent offerer is understood to say : " If you receive no notice to the contrary, you shall be entitled to hold me as continuing my offer up to the time of posting or despatching your acceptance ; which, if done debito tetniJore, shall bind the contract." ((/) If, in construing an offer, it is found that it amounts to a promise binding the offerer for a reasonable or specified time, the offeree may claim specific performance of his contract, or damages for its breach ; but, if not, there is locus poenitentice, and the offerer may resile ;(/i) but the recall of an offer has no effect unless communicated before acceptance. (^) Acceptance is either tacit or express. It is tacit where a horse is sent on approval and kept, if the proposal be so made as to require rejection if the buyer do not mean (a) Bell's Pr. 89 ; Benj. 249 et seq. {b) These are not common in Scotland ; for their form and effect, see Benj. 253 ct seq. (c) B. Pr. 89 ; but it is necessary in England, Grant v. Fletcher, 1826, 5 B. and Cr. 436 ; Thornton v. Charles, 1842, 9 M. and W. 802. (d) Hodgson v. Davies, 1810, 2 Camp. 530. (e) B.C. i. 343 ; Stair, i. 3, 9 ; Ersk. iii. 3, 88. (/) B. Pr. 74 ; see § 21, sale and return. [g) Lord Deas in Thomsom v. James, 1855, 18 D. 1, 25. \h) Walker v. Milne, 1823, 2 S. 379 ; Lord Deas in Allan v. Gilchrist, 1875, 2 R. 587-590. (i) Thomson, cit. ORDER. 7 to keep it. (ct) If there be express acceptance, it must precisely meet the offer. (6) If it contain any condition, the alteration is equivalent to a new offer requiring accept- ance, (c) The acceptance completes the contract if despatched before the receipt of a retractation of the offered) within the time limited by the offer, or within reasonable time if none be specified ; provided no change of circumstances has taken place so as to make the offer " unsuitable and absurd, "(e) The acceptance should be communicated in course of post, or according to the usage of trade. Once posted, the acceptance is complete, even though it should not reach the offerer ;(/) but the acceptance may be recalled by telegram received before, or simultaneously with the acceptance, (g) 7. Order. (/t) — Offer and acceptance thus differs from an " order in trade," which is part of the law of mandate, (-i) An order in trade requires no acceptance ; and must be immediately rejected, else it is binding on the person to whom it is addressed. It need not be in writing, and may be proved by parole evidence, (j) It must be executed in the terms of the order, otherwise it is not binding on the orderer ; but if he acquiesce in the mode of execution, he is bound by it. (/j) If an order be sent by telegram, the (a) B. Pr. 76. (b) Eank. Ersk. Pr. iii. 1, 6 ; B. Pr. 77. (c) Johnstone v. Clark, 1855, 18 D. 70 ; Wylie cC- Lochcad v. M'llroy, 1873, 1 R. 41. (fZ) Thomson v. James, 1855, 18 D. 1 ; Wylic, cit. ; Hirjrjins tfc Son v. Dunlop, 1847, 9 D. 1407 ; 6 B. App. 195. (c) Lord President Inglis in Macrae v. Edinhurrjh Tramioay Company, 1885, 13 R. 265, 269. (/) Hiagins, cit. {fj) Thomson, cit. (h) Orders in trade are frequently given in the case of donkeys, ponies, &c. (i) B. Pr, 80. (j) B. Pr. 80-82 ; but it must be in writing in England. (i) Rlcluirdson v. Riscoe ct Riyy, 1837, 15 S. 952 ; Van Oppen v. ArhucUe, 1855, 18 D. 113. 8 RISK. sender is not liable for a, mistake in transmission, and, unless the message be correct, there is no contract, (a) If an order be given for a pair of horses or more, the buyer is entitled to consider it as one order, and decline to accept one unless the whole are delivered ; (&) but not if the contract contemplates the possible delivery of a part only, or if the buyer acquiesce in partial delivery as fulfilment of the contract to that extent, (c) 8. The Risk. — The risk of the horse sold but not delivered is with the buyer. (cZ) The engagement of the seller being to deliver, and the buyer's right being to the specific animal purchased, the engagement is discharged, and the right extinguished if the animal perish through no fault of the seller ; and similarly it is no answer to a claim for the price that the horse has not been delivered, if it have perished without fault of the seller, (e) The risk remains with the seller — 1, If he specially under- take it, or where he undertakes it by implication, as to deliver it at a certain place ; (/) 2, if there is undue delay in dehvery without fault on the buyer's part ; {g) 3, where the seller neglects to give notice to the buyer to enable him to insure ; Qi) or fails to put the animal in such a course of con- veyance as to let the buyer obtain indemnity against loss in carriage ; (^) 4, or Avhere anything remains to be done in identifying the animal or animals sold, as — e.g., where so many ponies out of a lot are sold.(^') (a) Verdin Brothers v. Robertson, 1871, 10 M. 35. (6) § 2 ; Richardson, cit. ; Ja^i v. Ritchie, 1860, 23 D. 242, 249. (c) Smith V. Napier, 1804 ; Hume, 338 ; B. 38 ; B. Pr. 91 (6). (d) Stair, i. 14, 7 ; Ersk. iii. 3, 7 ; B.C. i. 461, n. (e) B. Pr. 87. (/) Milne d: Co. v. Miller, 1809, 15 F.C. 127; HencMl du Buisson tt Co. v. Swan, 1889, 17 K 252. (g) Fleet v. Morrison, 1854, 16 D. 1122. (h) Fleet cit., see also Hastie v. Campbell, 1857, 19 D. 557 ; B.C. i. 475. {i) B.C. i. 474-475 ; Benj. 703. (j) Hansen v. Craig, 1859, 21 D. 432, see § 2 ; B. Pr. 88, note (/) ; Anderson V. T7«/?s, 1870, 9 M. 122-125. COXDITIOXS AS TO QUALITY. 9 9. Implied Conditions as to Quality. — When a purchaser bu^'s a horse without a warranty, there is a condition implied in the contract of sale that the animal is reasonably fit for the purpose for which it is sold ; that is to say, it must be a merchantable animal, and such as it is represented to be according to the fair intention and understanding of the parties, (a) If the buj^er has seen and examined the horse, the rule caveat emptor applies, " his eye is his merchant," and he must take it Avith all its faults, unless there be fraud on the part of the seller, or the concealment (h) of any defect known to him material to the contract and not obvious on inspection, (c) A seller, however, is not bound to disclose any patent defects in a horse he is going to sell, unless this duty is imposed upon him by the buyer's asking about them : he may remain silent and allow the buyer to inspect the animal and judge for himself ; mere silence does not per se amount either to implied warranty or concealment. (r?) If the buyer, however, has not seen or had an opportunity of seeing the horse, the rule caveat emptor does not apply, and the buyer can reject it, and demand repayment of the price if it has been paid, in the event of its not being a merchant- able animal, (e) If a defect be undiscoverable on inspection, the buyer is held both in England and Scotland to be aware of the possibility of its existence, and unless there be fraud on the part of the seller in concealing it, or the buj^er get a warranty with his horse, he must take the risk.(/) " Where an article is sold with all its faults," said Lord Ellenborough, " I think it is quite immaterial how many beloDged to it within the laiowledge of the seller, unless he used some (a) Ersk. iii. 3, 10 ; B.C. i. 463 ; Rahton v. Rohb, 180S, M. v. Sale. [h) See § 32. (c) B. Pr. 96. (rZ) Per Lord Jervis in Keats v. Earl of Cadognn, 1851, 10 C.B. 591 ; Yeats v. Rcld, 1884, 21 S.L.R. 698, see this case also in § 28. (e) B.C. i. 464 ; Ersk. iii. 3, 10. (/) B. Pr. 97 ; Stair, i. 10, 15, citing liroKn v. Nicolson, 1629, M. 8910. The former English rule that sound price implied sound quality, is overruled. Jones V. Just, 1868, L.R. 3 Q.B, 197. 10 CONDITIONS AS TO QUALITY. artilice to disguise them, and to prevent their being discov- ered by the purchaser. The very object of such a stipulation is to put the purchaser on his guard, and to throw upon him the burden of examining all faults both secret and apparent. I may be possessed of a horse I know to have many faults, and I wish to cfet rid of him for whatever sum he will fetch. I desire my servant to dispose of him, and instead of giving a Avarranty of soundness, to sell him with all faults. Having thus laboriously freed myself from responsibility, am I to be liable if it be afterwards discovered that the horse was unsound ? "(a) It would also appear that specific animals sold by descrip- tion may be rejected even when examined by the buyer, if of a different kind from those described, provided the differ- ence was not apparent on inspection,(6) and if bought for a purpose known to the seller they must be reasonabl}^ fit for that purpose, (c) By the Mercantile Law Amendment Act,(d) there is no longer an implied warranty against latent defects m the sale of horses, the actual condition of which may be ascertained by either party. (e) Under § 5 of this statute, "where goods" (horses are held included under this term(/)) "shall, after the passing of this Act, be sold, the seller, if at the time of the sale he was without knowledge that the same were defective or of bad quality, shall not be held to have warranted their sufficiency ; but the goods Avith all their faults shall be at the risk of the purchaser, unless the seller shall have given an express warranty (g) of the quality or sufficiency of such goods, or unless the goods have been (a) Per Lord Ellenborough in Baglelwh v. Walters, 1811, 3 Camp. 154, approved in Ward v. Hobhs, 1878, 4 App. Ca. 13, 27, 29. (6) Jaffe V. Ritchie, 1860, 23 D. 242 ; Carter v. Campbell, 1885, 12 R. 1075. (c) Jones, cit. Fleming v. Airdrie Iron Co., 1882, 9 R. 473 ; see § 58 where Mercantile Law Amendment Act applies. {d) 19 & 20 Vict. c. 60. (e) B. Pr. 97 A. (/) Youwj V. Giffcn, 1858, 21 D. 87. ( p • 218 '(e) B. Pr., § 1302. (/) B.C. i. 258. ([j) B. Pr. 1300. (/i) 19 & 20 Vict. c. 60, §§ 1, 4. {i) Wyper v. IJarvcy, 1861, 23 D. 606 ; Lord President Inglis in Black v. Incorporation of Bakers, 18C7, 6 M. 136. DELIVERY. 1 7 custody but the beneficial use of a liorse remains with the seller, so as to show that a true sale has not taken place, this section of the Act does not apply, (a) The second is, that where a purchaser has not obtained delivery, a sub- purchaser from him is " entitled to demand that delivery ... be made to him, and not to the original purchaser ; and the seller, on intimation being made to him of such sub- sequent sale, shall be bound to deliver on payment of the price, or performance of the obligations or conditions of the contract of sale. (5) 18. Constructive Delivery.(c) — Constructive delivery of a horse takes place where the actual or real possession cannot be, or is not, given to the buyer or his agent. It is exemplified by such acts as setting a horse apart for the purchaser, or by the seller continuing to keep the horse sub- ject to the buyer's right of property, (c^) or by intimating a delivery order to the custodier. Whether delivery has taken place or not is frequently to be judged according to whether or not the buyer has accepted it. These following cases arose under the English Statute of Frauds, (e) which requires a purchaser to "accept" goods of the value of £10 and upwards if there be no signed written contract between the parties. A seller, who was a livery stable-keeper and horse-dealer, sued the defendant for the price of horses purchased. The defendant informed the seller that he bought the horses from him ; but having neither servant nor stable, he desired the seller to keep them for him, and he accordingly removed them from the sale-stable to another. This was held to be a relinquish- («) Sim V. Grant, 1862, 24 D. 1033 ; Edmondv. Mount, 1868, 7 M. 59 ; Robert- son V. Macintyrc, 1882, 9 R. 772. This rule does not aflfcct a landlord's hypothec, 19&20 Vict. c. 60, §§ 1, 4. (6) 19 & 20 Vict. c. 60, § 2. See also § 21. (c) B. Pr. 1303. (fZ) Elmore v. Stone, 1809, 1 Taunt. 458. (e) 29 Car. II. c. 3. C 18 DELIVERY. ment of the seller's possession as owner, as the buyer had thus ordered expense to be laid out upon them, and the plaintiff had consented to keep them at livery. («) Lord Mansfield, C.J., said : " After the defendant had said that the horses must stand at livery, and the plaintiff had that order, it made no difference whether they stood at livery at the vendor's stables, or whether they had been taken away and put in some other stable. The plaintiff possessed them from that time, not as owner of the horses, but as any other livery-stable keeper might have them to keep." In another case of sale of a horse on credit, a seller agreed to keejo a horse for a buyer for thirty days for nothing, and at the expiry of that time it was sent to grass at the defend- ant's request, " as the seller's horse," it was there held that the acceptance had not taken place, (h) Acts done for mere examination are not sufficient to effect delivery ;(c) but an offer to re-sell a horse as his own is con- sidered an act of appropriation by the buyer, (d) Where a number of horses are sold on approbation and return, (e) delivery of them to a carrier is not delivery to the buyer, because there has been no opportunity for the exercise of option. (/) Delivery is entirely independent of payment or non-payment of price, (g) If the horse be in the custody of a third part}', delivery takes place by giving notice that the third party shall hold the horse for the buyer instead of the seller. Thus, a horse in the hands of a carrier by land, or factor, is transferred by his acceptance of the seller's notice to change the custody ; (a) Elmore, cit. (h) Carter v. Touissant, 1822, 1 D. and R. 515. See also Tempest v. Fitzgerald, 1820, 3 B. and Aid. 680. (c) Nicliohon v. Botver, 1857, 28 L.J., Q.B. 97. (d) Chaplin v. Rogers, 1800, 1 East, 192 ; but see Richard v. Moore, 1878, 38 L.T.,N.S. 841. (c) § 21. (/) Coombs V. B. and E. Railway Company, 1868, 27 L.J. Ex. 401. (g) Per Lord President Blair in Broughton v. Aitchison, 1809, 15 F.C. 411. See also Melrose v. Ilastie, 1851, 13 D. 880. DELIVERY. 1 9 and when in the hands of a carrier by sea, by transfer of the bill of lading, {a) The notice is given usually by a " delivery order," or by the indorsation of a warrant for delivery. The later decisions consider the delivery order as constructive delivery, giving a title to the property, and not merely an authority to change possession. (6) In England it would appear that the assents of seller, custodier, and buyer are all required to effect con- structive delivery, the law regarding possession and delivery being different in England in this respect from what it is in Scotland, (c) 19. Express Conditions regarding Delivery. — When any express conditions are made regarding delivery they must be fulfilled. (fO Thus, where horses are sold on " arrival of " or " by " a certain ship, the sale is suspended on the conditions of the arrival of the ship, and the horses being on board, (e) If the delivery is to be "on arrival not beyond" a certain day, it is essential that they arrive so as to be delivered by that day. (/) In the case of an entire contract for delivery of a number of horses within a certain time, and part is delivered, the buyer may return that part if the rest are not delivered, and the seller cannot demand payment until expiry of the fixed time, but if the term pass without return of the part delivered, the seller has a claim for what has been delivered, (r/) (a) B. Pr. 1305 ; 1 Smith's L.C. 502. (&) Anderson v. M'C'all, 1866, 4 M. 765 ; Pochin v. Marjoribanl:s, 1869, 7 M. 622 ; Vichers v. Hertz, 1871, 9 M., H.L. 65 ; Distillers Company v. EusscU's Trustee, 1889, 16 R. 479. See also Factors Acts, 1823-1887 ; B. Pr. 1317 A. (c) B.C. i. 194, et seq ; B. Pr. 1303, 1305 ; Berij. 786, 820. (fZ) Lanf) V. Bruce, 1832, 10 S. 777. Condition as to cattle remaining so long with seller after sale by auction. (c) Johnson v. Macdonald, 1842, 9 M. and W. 600 ; but if the contract note asserts that the horses are on board, then the only condition is the arrival of the ship. Hale v. Eaivson, 1858, 4 C.B., N.S. 85. (/) Alweyn v. Prior, 1826, 1 Ry. and Moo. 406 (1 111. 107). ((/) Turnbull v. yPLean, 1874, 1 R. 730 ; 2 Smith's L.C. 40, ct seq. ; Benj. 545, ct seq. 20 REMEDIES ON BREACH OF SALE. In all such cases the interpretation of the special condi- tions will depend upon the intention of the parties making them.(rt) 20. Respective remedies on breach of Sale. — In Scotland the buyer's remedy on the seller's failure (in the absence of fraud or essential error) to deliver, is twofold — either to rescind the contract, withholding the price if unpaid, or claiming repetition of it if paid ; or to insist for performance with or without damages, as the case may be ; (6) but he cannot avail himself of both these remedies, (c) — that is to say, hold to the contract of sale, and claim damages for non-performance by the seller. In England, however, the general rule that jurisdiction for specific performance is not entertained regarding personal property, is limited to cases " where a compensation in damages furnishes a complete and satisfactory remedy." (f?) In the majority of cases, therefore, in that country, a buyer must hold to his contract of sale, accepting damages for its breach ; but this rule is subject to many exceptions, and specific performance will be ordered by the Court wherever damages does not afford an adequate remedy, (e) The seller's remedy is to retain the horse in security of the price. Where the buyer refuses to take delivery, and the seller wishes to claim damaofes, he should in the cfeneral case apply to the Sheriff for a judicial warrant to sell(/), horses forming an excej)tion to the general practice that no judicial warrant is necessary for reselling. ((/) If the seller do not wish to claim damages, he may sue for the price and («) See Cohin v. Short, 1857, 19 D. 890. (6) B. Pr. 120, as to the effect of fraud, see § 36. (c) M'Cormick v. Rittmcyer, 1869, 7 M. 854. (d) Snell's Equity, 6, 35, et seq. (e) White and Tudor's L.C. i. 912, ct seq., notes to Cuddle v. Ruttcr. (/) Bell on Sale, 109. This, however, it is thought, is only an expedient to show that the sale is conducted bona fide, and does not appear absolutely necessary, B. Pr. 128. Lee's Sh. Ct. Styles, p. 375, note. [g) B. Pr. 128. SALE AND RETURN. 21 its keep during the buyer's failure to take delivery, or put the horse to livery at the buyer's order, the buyer in such a case being liable in livery charges ; (a) but there is no obligation to put a horse in neutral custody if the parties are agreed that the horse is suitably cared for where it is, (6) 21. Horses on approbation, on sale and return, and on hire and sale. — Frequently a number of hoi*ses or ponies are sent on approbation to a dealer for him to elect to buy or reject them, in which case, though the seller may be bound, the sale is suspended, and the risk does not pass till the buyer has declared his option of taking all or any of them.(c) Or again, horses may be sent to a dealer on the understand- ing that only such as he can dispose of are to be sold to him. ((?) In such a case the condition is suspensive, (e) and horses on sale and return are not attachable by the con- signee's creditors ; but any of them sold, are sold for the benefit of the person having them on sale or return, and his creditors will be entitled to the price, not the sender of the animals. ( / ) This contract is different from that in which an animal is sold at a fixed price, and there is an agreement to resell it to the seller at a subsequent period, {g) It is still an open question whether horses sent on sale and return are subject to a landlord's hypothec. When horses are on hire at a certain rate, with an option of keeping them at a fixed price, they are at the risk of the seller till purchased, {h) Again, should a horse die or be injured while in the hands of an intending purchaser, he has (a) B. Pr. 12S ; B.C. i. 472. (h) Per Lord Young in Caledonian Ilailway Company v. lianJcin, 1882, 10 R. 63 ; Ilain v. Lainy, 1853, 15 D. 667. (c) B. Pr. 109, 1315. See Lord Young in Clarke ) 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. CUSTODY OF HORSES AT LIVERY AXD AT GRASS. 109 of damages was raised for the loss of a chestnut geldmg which had, while grazing in a grass park belonging to the defender, became infected Avith glanders or farcy, or both, from a pony, which the defender had, loiowing it to be so infected, put into the same field with it. The pursuer, on finding his horse not looking well, took it home, and two other horses in his stable became infected from it, and umw so ill that they had to be destroyed. It was held, that if these facts were proved, the hirer of the parks would be liable, not only for the chestnut gelding, but also for the other horses which became infected and died. The case was afterwards tried, and there being no dispute about the facts, the jury were charged that it was not necessary to bring direct evidence of the knowledge of the disease on the part of the defender, but that presumptive evidence of it was sufficient to found liability, (ct) In one case a defence was set up that the fact of the grazing park being bounded by a river which was fordable was not communicated to the owner of the horse. The Court remitted to the Lord Ordinary to inquire as to the usual care of cattle in the wood, and what care was taken of the horse in question, an opinion being indicated that if the defender showed no undue negligence in looking after the horse in so ill enclosed a field, or in giving immediate notice or in making due search on the loss, the action should be dismissed. (6) In another case, the keeper of a livery and sale stable retained a horse bought from him on the sugges- tion of the buyer with a view to resale, and one of the stable servants over-rode the horse and it died. The stable keeper pleaded ignorance of the horse's condition, and that he rode it at the owner's request ; but he was found liable for the value of the horse,Lord Justice-Clerk Boyle observing: — " I am clear that the keeper of a livery and sale stable has a duty and responsibility in reference to the horses committed to his («) Robertson v. Connolly, 1851, 13 D. 779, 14 D. 315. (b) Davidson, 1749, M. 10,081. 110 RESPONSIBILITY (IF BREAKERS AND TRAINERS. charge, from wliich he cannot shalce himself free by trans- ferrincf it to his ijroom. He is answerable for the conduct of every person about his stables. The defender has no right to plead ignorance of the condition of the horse, he was bound to know it.'Xa) 81. Modification of Responsibility by Notice. — These conditions may be varied to any extent by express stipula- tion or even by notice. Thus, a gentleman sent his horse to a park for pasture and it strayed. He brought an action against the tenant of the park, who pleaded in defence that he had put up a placard intimating that he would not be liable for any horses put into the park " although they should be stolen or break their neck." No other condition was expressed in the contract and the defence was held relevant. (6) In two other cases relative to the same placard the same defence was sustained in the absence of proof that the tenant was accessory to the loss by fraud or neglig- ence, (c) 82. Of the Responsibility of Breakers and Trainers of Horses. — The liability of a trainer or horse-breaker as far as custody is concerned, is the same as that of a stable keeper,(c?) and he is liable for damage done to a horse through his negligence in breaking, (e) The owner of a mare sent her to a stable-keeper and horse-breaker to be broken. Whilst a servant of the stabler was riding the mare, it took fright and leaped among some benches which had been placed in the area of the stable, and it was so severely injured that it died, notwithstanding good treat- ment. It was held that the stabler ought to have taken better care that his stable should not be exposed to such accidents. (/) (a) Harjart v. Inglis, 1832, 10 S. 506. (i) Whitehead v. Straiton, 1667, M. 10,07-]. (c) Birnie, 1680, M. 10,079; 3IaxmU v. Todridge, 1684, M. 10,070. {d) § 80. (c) Oliphant, 233. (/) Hay V. Wordsworth, 1801, M. Appx., Nauta, &c. RESPONSIBILITY OF VETERINARY SURGEONS. Ill A horse sent to be broken must be preserved from all accidents and not exposed to danger. Thus, where a stabler, who received a young mare to train into his stable, under which, he was aware, that a railway company were forming a tunnel by blasting rock, and who did not communicate that fact to the owner, was found liable for injury done to the mare in consequence of a fright occasioned by an explo- sion in the tunnel, (a) Lord President Boyle observed : — " He is bound not only to train it, but to preserve it from all accidents, and the owner of the horse is entitled to rely on this being done. ... By receiving the horse into his stable he took the risk of its safety on himself; " (6) and it was further observed that the stable keeper should have arranged with the railway company to get notice of the time of the explosions, and that, not having done so, he was liable because that was a measure of precaution that should not have been neglected, and also that the fact of the blasting explosions going on should have been communicated to the owner. 83. Responsibility of Veterinary Surgeons. — Where a horse is sent to a veterinary surgeon's, the sender is entitled to presume that he has the ordinary skill of a man who makes this business his profession, and his obligation is for a due apphcation of the necessary attention, art and skill. The rule is that if an apprentice only be employed, instead of a master, he is responsible for a fair exertion of his capacity, but that where a professional man is employed to perform any specific act, it must be done according to rule, — neither negHgently nor unskilfully,— and if there be no settled rule but a known method of performing it, it must be followed. Further, if an operation be intricate and difficult, a professional man, though he err, is not liable if he fairly exert the best of his skill and judgment ; but he («) Laing v. Darling, 1850, 12 1). 1279. (b) Laing, cit. p. 1284. 112 RESPONSIBILITY OF VETERINARY SURGEONS. lias the onus of proving that injury received while in his hands was not due to his fault, {a) In regard to veterinary treatment for disease, the same rules apply which govern the treatment of persons by a medical man, A veterinary surgeon is bound to bring reasonable skill and fitness to the subject under treatment, and he must exercise it with due and proper care. If he be deficient in fitness, or having the requisite skill fail to exercise it properly and carefully, he is liable for any damage which may ensue. (6) And if he is employed professionally and undertakes a case, that is sufficient to render him liable for negligent treatment ; (c) accordingly, in a case of negligent treatment, it was not found necessary to aver by whom the medical man was employed, nor by whom he was to be paid.(cZ) A surgeon, moreover, is bound to exercise the same degree of care and skill by whomsoever he may be called in. (e) In regard to the granting of veterinary certificates of sound- ness, the rule appears to be that if a veterinary surgeon give a warranty wrongfully, to render him liable, the case against him must come up to this, that he acted as no intelligent and properly educated veterinary surgeon would have done when he examined the horse ; in fact, that he did not exercise a reasonable amount of skill and intelligence. (/) His liability appears to be limited to the party by whom he is employed. Thus, if a buyer stipulates that a veterinary surgeon's certificate of soundness is to be given with a horse he is to purchase, and the seller provides one, which the buyer can show was negligently given, he has no remedy against the veterinary surgeon ((/) unless he can prove that (a) Bell's Pr. 154 ; Beven on Negligence, 820, ct seq. (6) Collms V. Rodway, 1845 ; Oliphant, 229. (c) Gladivell v. StcrjrjaU, 1830, 8 Scott's C.P. 60. (d) Pippin V. Sheppard, 1822, 11 Price, 400. (e) Tindal, C.J., in Gladwdl, cit. (/) Mann v. Stephens, 1881, before Montague, Q.C., Penzance, 54 Veterinar- ian, 655. {g) Walker v. Barling, 1884, N.P.C. Derby before Justice Denman, 57 Veterinarian, 202 ; Robertson v. Fleming, 1861, 4 Macq. 167. LIEX OF CUSTODIERS OTHER THAN INNKEEPERS. 113 between tlie veterinary surgeon and the seller there was a conspiracy to defraiul. If, however, the veterinary surgeon is employed by the buyer, or jointly employed by the buyer and seller, he is liable to either party for gross negligence in granting a certificate. 84. Responsibility of a Smith and Farrier. — A smith or farrier is liable if he damage a horse in shoeing. In England a farrier cannot refuse to shoe a horse if brought at a reasonable time, (a) But in Scotland this is not com- pulsory, and a smith is at liberty to decline to shoe a horse brought to be shod. If, however, he undertakes to shoe it, he incurs responsibility if it is done negligently. (6) If a servant of a farrier shoe negligently, the master is liable, (c) but not if the injury be wilful, as by the servant's wilfully driving a nail into the hoof for the purpose of laming the horse, (d) If there be peculiar difficulties in shoeing they must be mentioned to the farrier, (e) Again, a farrier was found liable for the value of a colt killed by negligence in castration. (/) The owner of a stallion, it is thought, must take the same care of a mare sent for cover as a livery stable keeper or farmer when grazing it ; (g) the custody being incidental to the special contract for service ; but this responsibility will be lessened where the owner of the mare sends his own groom with it. 85. Lien of Custodiers other than Innkeepers. — The owner of a stallion has a lien over the marc sent for (a) See the various English statutes regarding farriery cited in Oliphant, p. 229. (b) Coke, C.J., in Everard v. Hopkins, 2 Bulst, 332. (c) § 150-1. (d) § 150-1. (e) See Pollock, C.B., in Collins v. Rodivay, 1845, reported in Oliphant, 229, and in 14 Veterinarian, 102. (/) Pcddie V. Rodtjer, 1798, Hume, 304. {g) § 80. I 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. AN innkeeper's CUSTODY. 115 A farmer, sued by an innkeeper for delivery of a horse wintered with hitn, alleged an express contract that it was lent for the whole Avinter, and was not to be redemanded till spring, and also founded on a local custom of horses being kept and used for farm purposes by farmers during winter and spring in exchange for their keep. It was held, on his failure to prove either the agreement or the alleged custom, that the contract was terminable at the will of either party. (a) 87. Of an Innkeeper's Custody. — The edict, nautce, cau- pones, stahidarii,(lj) has so far been adopted in the law of Scotland as to render public carriers, (c) innkeepers, and stablers answerable for restitution of a horse in the same condition as they receive it ; unless it has perished, or has suffered injury by inevitable accident,(cZ) or by the negligence of the guest himself (e) But it Avould appear from the edict itself (/) that stable-keepers are not within the clause unless they are also innkeepers who receive guests ; and therefore the edict applies only to innkeepers proper, and the responsibility of livery-stable keepers and graziers is limited to that of a bonus iKdevfamilias, as already explained, (5^) while the responsibility of an innkeeper is very much higher than that of a stabler or grazier ; and furthermore, in regard to a horse or carriage, an innkeeper cannot obtain any benefit from the Innkeepers Act, which permits him on certain conditions to limit his responsibility, inasmuch as horses and carriages, and any gear appertaining to them, are expressly excluded from its operation. (/i) "The (rt) Brown v. M'ConneU, 1876, 3 R. 788. Proof of what usually occurs is not proof of custom, per Lord Gifford. (6) The meaning of this word is not a livery-stable keeper pure and simple, but an innkeeper who has stables, or an hostler. See Denman, J., in Nugent v. Smith, 1875, L.R. 1 C.P.D. 19, p. 29, w, and Blackburn, J., in Scurlc, cit., § 80. (c) § 93. id) § 93, 108. (e) Armistcad v. White, 1851, 20 L.J., Q.B. 524 ; per Erie, 0. J., Ex. Ch., CashiU V. Wrirjht, 1856, 2 Jur., N.S., 1072. (/) Dig. iv. 9, 5. See Juridical Review, vol. iii., 1891, p. 306. (ir)§80. (A) 26 & 27 Vict. c. 41. 116 AN innkeeper's custody. law is express that if the goods " (and horses and carriages must be inchidod under goods) " perish even without his fault, he is Hable, unless the loss has happened damno fatali ; — i.e.,hy an accident which could be neither foreseen nor with- stood."(a) Where a guest leaves his horse at an innkeeper's and goes away himself, the innkeeper is still liable for any injury to the horse occurring in the absence of the owner, as he is a gainer by the transaction. (6) By both Scotch and English law an act of God or the King's enemies is sufficient to relieve the innkeeper of his responsi- bility, (c) Lightning, storm, and tempest are damna fatalia. Loss by robbery, it is thought, is an accident for which the innkeeper would be responsible ;(cZ) but the responsi- bility undoubtedly extends to theft, (e) Accidental fire, how- ever, is regarded as a damnur)i fatale, and an innkeeper, if a lire break out in his stables, is not liable for the loss of his guests' horses, unless, of course, the fire was caused by his own or his servants' negligence. Thus, an inn- keeper was held not liable for the value of three horses belonging to a guest, destroyed through the stable (which was lighted by a lantern of the ordinary construction) taking fire, although the last person in the stable was the guests' groom, who was intoxicated and smoked a pipe.(/) The Mercantile Law Amendment Act, which expressly made carriers liable for loss by fire of goods under their cave,(g) makes no mention of innkeepers' liability, which affords additional weight to the decision referred to. Though an innkeeper has the custody of a horse, he is not (a) Ersk. iii. 1, 28. [Erskine there says, " If, e.(j., they have been lost by storm or carried ofif forcibly by pirates or housebreakers, " but he gives no case in support of this statement.] (b) York V. Grindstone, 1 Salk. 388. (c) As to what constitutes a damnum fatale, see Smith's L.C. i. 241. See also §§68,74,75,93,108,116. (d) Ersk. iii. 1, 28. But see B.C. i. 499, where this is doubted. (e) Williamson v. White, 1810, 15 F.C. 712 ; M'Pherson v. Christie, 1841, 3 D. 930 ; Yorke v. Oreenhaugh, 2 Lord Raymond, 866. (/) McDonnell v. Ettlcs, 1809, 15 F.C. 460. (Sr) 19 & 20 Vict. c. 60, § 17. AN innkeeper's liex. 117 allowed the use of it, except upon express agreement. In England, it has been held that an innkeeper is not liable for the loss of a guest's horse, put to grass at the owner's request, unless he is a party to the negligence causing the loss, but it would appear that he is answerable if he have put the horse out to grass without the owner's knoAvledge.(a) The presumption in the case of injury or loss is always against the innkeeper, and in England it is doubtful if any- thing short of actual negligence on the part of the guest can free the innkeeper. (6) 88. Of an Innkeeper's Lien. — An innkeeper has a lien over horses for their keep,(c) and for his bill for a guest's lodging, (cZ) and also over a vehicle, for standing room and labour bestowed on it, whether it be the property of the guest, or hired by him from a third party.(e) This lien operates even against the true owner of the horse, though it had been stolen by the person Avho brought it to the inn, the lien being strictly confined to the keep of the horse itself. (/) The lien is lost, and does not revive if the horse have once been allowed to go away,(f/) but the mere fact of horses having been temporarily taken away to run races, even for days at a time, does not deprive the innkeeper of his lien.(^) Thus, a carrier who had been in the use to put up his horses at an inn owed £36 for their keep, and the innkeeper seized three of the horses and sold them. Judg- ment was given for the owner of the horses on two grounds : — first, because there was no power to sell, bat only to detain ; and, second, because there was no lien after the (a) Saunders v. Plummer, 1662, Ord. Bridge, 227 ; Tenterden, C. J., in Rich- mond V. Smith, 1828, 8 B. and C. 9. (b) Pollock, Chief Baron, in Morgan v. Jiavcy, 1861, 6 H. and N. 265, overruling Dawson v. Chamncij, 1843, 5 Q.B. 164 ; Bather v. Day, 1863, 32 L.J., Ex. 171. (c) B.C. ii. p. 99 ; Smith v. Dearlovc, 1848, 6 C.B. 132. {d) Midlincr v. Florence, 1878, L.R. 3 Q.B.D. 484. (e) Turrell v. Craxdey, 1849, 18 L. J., Q.B. 155. (/) Piatt, B., in Broadioood v. Granara, 1854, 10 Ex. 417 ; Snead v. V^\itkins, 1856, 26 L.J.. C.P. 57. {) But raihvay companies are not responsible for accidents happening in the transit Avhich are not of a kind that they were bound to have foreseen, if they take all reasonable precautions. Thus, Avhere a three-year-old horse which was fastened in the usual way in a railway horse-box, struggled through the feeding window into an adjoining compartment and was thereby injured, it was held that the accident was not of a kind the railway company were bound to have foreseen and to have provided against, and that they were not liable in damages. It Avas argued that the aperture being twenty-five inches square Avas too large and the halter being three feet was too long ; but on the evidence given the aperture Avas found to be of the usual size, and that a horse getting through it was a most improbable and unprecedented occurrence.(c) 101. Of Reasonable Care in Transit. — A railway com- pany is bound to carry Avith reasonable care, (d) The standard of care is that which a prudent man Avould adopt if he Avere in the carrier's place, and had to deal Avith the animals under the circumstances and subject to the conditions in Avhich the carrier is placed and under which he is called on to act. The precise degree of care varies Avith the circumstances of {a) Paxton v. N. B. Ry. Co., 1870, 9 M. 50. (6) Rain v. G. S.- W. Ry. Co., 1869, 7 M. 439. (c) Ralston v. Cal. Ry. Co., 1878, 5 R. 671, see observations of Lord President Inglis and Lord Deas upon tying up horses for railway transit. (d) B. Pr. 167, and cases there cited. IIEASOXABLE DESPATCH IN TRANSIT. 129 every case, some animals requiring more care and manage- ment than others, according to their nature, habits, and con- ditions. A condition that a railway companj^ will not be responsible " for loss . . . occasioned by kicking, plunging, or restiveness of the animal," does not relieve them of the duty of using reasonable care, and " the exception goes to limit the liability, not the duty." It is the duty of the carrier to do what he can to avoid all perils, including the excepted perils.(a) Railway companies in the habit of carrying live animals are under a certain responsibility, not only toward the OAvner of the animals but also towards the public. If a dog or a horse is known to be vicious and the company are informed of this, the company are bound to take not only the usual but extraordinary precautions to prevent it from escaping and so doing injury to the public. (6) 102. Of Reasonable Despatch in Transit. — In the absence of special agreement there is no implied contract on the part of a railway company to deliver with punctuality ; but the contract is to deliver within a reasonable time, having regard to all the circumstances ; and railway companies are not responsible for the consequences of delay arising from causes beyond their control, and are justified in incurr- ing delay if it be necessary to secure safe carriage, (c) The ordinary course of the journey which is professed by the com- pany to be their route must be observed ; {(I) and where delay is occasioned by causes beyond the control of the company, as — e.g., by a snowstorm, they are not bound to use extra- ordinary effort, or incur extra expense, in order to surmount such an obstruction, (e) A railway company, however, must (a) Blackburn and Liisb, J.J., in GUI v. M. S. ) — Should the consignee reject the horse, or deliver}^ to him be impossible, the liability of the company extends to re-delivery of it to the consignor's order, (c) Even after the transit has ceased this responsibility of a railway company does not ter- minate till the owner or consignee had, or might have had, an opportunity of removing the horse carried. (cZ) The company, however, are bound to keep the horse for a reasonable time for the consignee to come and fetch it, during which period of time their liability continues. After a reasonable time this liability ceases, and they are merely custodiers, and not liable as carriers ; (e) and the amount of time is a question of circumstances. (/) But in one case a company was held not liable even when slightly in fault, there being also fault on the part of the sender. A horse was sent from New- bury to Windsor. No one appeared to claim it ; it was for- gotten, left tied up in a horse box for twenty-four hours, and was found seriously injured. It was held that the company was not liable, the true cause of injury having been the neglect of the sender to inform the consignee that the horse was coming. ((/) («) Doolan v. Midland Ry. Co., 1877, L.R. 2 App. Ca. 792. Where it was also decided that the effect of 31 & 32 Vict. c. 119, § 16, taken with 31 & 35 Vict. c. 78, § 12, was to extend all the provisions of the R. and C. Traffic Act, 1854, to railway companies carrying goods in vessels not belonging to them. See also Moore, cit, § 114, p. 143. (h) See § 104 as to the company's duty if there be no one to receive the horse. (c) Mdzenhurrj v. IliijJdand Ry. Co., 1869, 7 M. 919. As to carrier's duty in such a case, see G. W. Ry. Co. v. Crouch, 1858, 3 H. and N. 183. (d) Shepherd v. B. cO K Ry. Co., 1868, L.R. 3 E.x. 189 ; Cordon v. G. W. Ry. Co., 1881, 8 Q.B.D. 44. See also Macnainara, Art. 96, 105, 293. (e) Chapman v. G. W. Ry. Co., 18S0, 5 Q.B.D. 278 ; Taff Vale Ry. Co. v. Giles, 1853, 2 E. and B. 822 ; Cairns v. Robins, 1841, 8 M. and W. 258. (/) Coxon V. N.-E. Ry. Co., 1883, 4 K. and C. Tr. Ca. 284. (y) Wise v. G. W. Ry. Co., 1856, 1 H. and N. 63. In this case there was a notice protecting the carrier from injury ; but still it seems difficult to reconcile the decision with those in Chapman and Taff Yale, cit. supra. 134 DAMNUM FAT ALE. 107. Legal Presumption in Case of Loss or Injury. — When loss or damage occurs in transit, there arises a pre- sumption that it occurred at the carrier's hands ; and the burden of proving that it did not is laid upon him ;(«) and a common carrier, if not protected by express contract, is responsible for all loss and damage to a horse entrusted to him for carriage, unless he can establish that the loss was due to inevitable accident, (6) or solely to some inherent vice in the horse carried.(c) Thus, a common carrier by sea received a mare for transit from London to Aberdeen. There was a rough passage, and the mare received such injuries that she died. The jury found that the injury was due partly to more than ordinary bad weather and partly to the fright of the mare, and that there was no negligence on the part of the carrier or his servants.((?) It is not necessary for the carrier to prove that it was absolutely impossible to prevent it, but it is sufficient to have proof that by no reasonable precaution under the circumstances could it have been prevented, (e) 108. Damnum fatale — The inevitable accident(/) which will free a common carrier from liability for loss must be due exclusively to natural causes without human inteiwention. Thus, neither theft(^) nor the fraud of servants are any excuse :(Ji) but, in order to show that the cause of the loss was irresistible, it is not necessar}" to prove that it was abso- lutely impossible to prevent it ; it is sufficient to prove that by no reasonable precaution under the circumstances could (a) § 93 ; for form of issue see Wond cO Co. v. Pcellcs Ry. Co., 1860, 22 D. 1393 ; Hudson V. Baxcndale, IS;")?, 2 H. and N. 57."). (i) Ersk. iii. 1, 28 ; Stair, i. 13, 3 ; B.C. i. 495 ; § 108. (c) § 109. Paxton and liahton, cit. p. 128. (rf) Niirjent V. Smith, 1875, L.R. 1 C.P.D. 423. (c) Per L.J. Mellish in Nwjcnt, cit. p. 441. (/) See .also §§ 93, 160. (g) Forbes v. Steel, 1687, M. 9233 ; Chisholm v. Fenton, 1714, M. 9241. (h) Stair, i. 13, 3. but the goods must be given regularly .'<> .is to charge the master. See § 96. IXHEREXT VICE. 135 it have been prevented ; and a carrier in such a case has done all that is reasonably to be required of him, if he has used all the means to which prudent and experienced carriers ordinarily have recourse to insure the safety of goods entrusted to them under similar circumstances, (a) A fall of snow is an accident such as will free a railway company for liability from delay, and a common carrier is not bound to use extra- ordinary efforts or incur extra exj^ense to surmount the obstruction. (6) Railway companies, wdien common carriers, are liable for loss of horse by fire.(c) Carriers, moreover, are not liable for accidents happening to an animal from its inherent vice, when there is no fault or negligence attribu- table to them. 109. Inherent Vice.(t?) — The leading case on this subject was one in which the Great Western Railway Company were sued for failure in delivery of a bullock delivered to them at Dingestow Station, to be carried to Northampton. In the course of the journey the animal escaped from the truck m which it was placed, and was killed. In a case stated by the County Court judge, it was found that the escape was wholly attributable to the efforts and exertions of the animal itself, and not to any negligence on the part of the company, and that the truck was in every respect proper and reason- ably sufficient for the conveyance of cattle. The Court held that, upon this state of facts, the judge ought to have directed a verdict for the defendants ; and Willes, J., observed : — " The bullock was received by the company under the terms of a notice which is assailed by the plaintiff. It is unnecessary to consider whether or not the notice was a reasonable one. The question for our decision is, whether the defendants, upon the facts and findings of the County Court judge, are (a) See Cockburn, C.J., in Nurjcnt v. Smith, cit., p. 438, but irresistible force occasioned by robbers and mobs will not free the carrier ; Cogr/s v. Bernard, 1 Smith's L.C., p. 215. (h) Briddon v. G. N. liy. Co., 1858, 28 L.J., Ex. 51. (c) 19& 20 Vict. c. (50, § 17. (d) § luO. Cases of Paxton and Ralston, p. 128. 136 INHERENT VICE. liable as common carriers for the loss of this animal. . . . The question as to their liability may turn on the distinction between accidents which happen by reason of some vice inherent in the animals themselves, or disposition producing unruliness or phrensy, and accidents which are not the result of inherent vice or unruliness of the animals themselves. It comes to much the same thing whether we say that one who carries live animals is not liable in the one event but is liable in the other, or that he is not a common carrier of them at all, because there are some accidents other than those fall- ing Avithin the exception of the act of God and the Queen's enemies, for which he is not responsible. By the expression ' vice,' I do not, of course, mean moral vice in the thing itself or its owner, but only that sort of vice which, by its internal development, tends to the destruction or the injury of the animal or thing to be carried, and which is likely to lead to such a result. If such a course of destruction exists, and produces that result in the course of the journey, the liability of the carrier is necessarily excluded from the contract between the parties, "(a) In another case, decided in the same year, the circum- stances were as follows : — A horse, saddled and bridled, was taken to Waterloo Station to be carried to Ewell. It was attempted to be shown that the railway company's servants were guilty of negligence in not tying up the stirrups ; but, as the plaintiff acquiesced in their being allowed to hang down, and there being evidence that that course was usual and proper, the contention Avas abandoned. No accident happened to the train, nor anything likely to alarm the horse, which was one accustomed to travel by rail ; but at the end of the journey it was found to have sustained con- siderable injuries, and an action was brought against the company. The Court held that the defendants were not liable, since it was to be inferred that the injuries resulted from inherent vice of the horse. Bramwell, B., said: "There («) Blouer v. G. W. Ry. Co., 1872, L.R. 7 C.P. 655, 662. LIMITATION OF CARRIERS' RESPOXSIBILITY. 137 is no doubt tliat the horse was the immediate cause of its own injuries. That is to say, no person got into the box and injured it. It sKpped, or fell, or kicked, or plunged, or in some way hurt itself If it did so from no other cause than its inherent propensities, ' its proper vice ' — that is to say, from fright, or temper, or struggling to keej) its legs — the defendants are not liable. But if it so hurt itself from the defendants' negligence, or any misfortune happening to the train, though not through any negligence of the defendants — as, for instance, from the horse-box leaving the line owing to some obstruction maliciously put upon it — then the defendants would, as insurers, be liable."(a) Where the vice, however, is brought out by the negligence or fault of a railway or shipping company, the liability attaches.(6) 110. Limitation of Carriers' Responsibility under Statute. — Under various statutes the common law responsi- bilities of common carriers have to a certain extent been limited. By the Carriers Act of 1830, (c) common carriers were exempted from liability for injury to certain goods when their value exceeded £10, unless their description and value were declared, and an increased charge, according to notice, paid at the commencement of the carriage ; but special contracts Avere not affected by this Act;(c?) and this excep- tion led to the abuse of carriers being able to contract them- selves out of almost all liability whatever. By § 4, common carriers could no longer by public notice limit their responsi- bility in respect of articles not within the Act ; and, accord- ingly, they were liable to the full value of the loss to horses injured or lost in transit. These defects were removed by (a) Kendall v. L. tfc S.-W. Ry. Co., 1872, L.R. 7 Ex. 373, 377. (6) GiU V. M. S. d: L. Ry. Co., 1873, L.R. 8 Q.B. 186. (c) 11 Geo. IV. and 1 Will. IV. c. 68, § 1. (d) Ihid. § 6. 138 LIMITATION OF CARRIER'S RESPONSIBILITY. the passing of the Railway and Canal Traffic Act.(«) Under § 7 of this statute, railway and canal companies (h) shall be liable for the loss of or for any injury done to horses or other animals in receiving,(c) forwarding, or delivering them, occasioned by the neglect or fault of such company or its servants, (c/) notwithstanding any notice, condition, or declar- ation made and given by such company contrary thereto, or in anywise limiting such liability, every such notice being declared null and void. Power is reserved, however, to companies under the Act to make by a special contract with the consignor such conditions with regard to receiving, for- warding, or delivering animals, &c., as the Court shall adjudge to be just and reasonable, provided it is in writing, and signed by the consignor, or the person delivering the animals for carriage ; and a limit of £50 is fixed as the amount of damage to be recovered for the loss of a horse, unless a declaration of its value, if higher than £50, shall be made at the time of delivery, and a reasonably (e) higher charge paid for carriage. It is further provided that the notice of increased rates shall be publicly notified as under the Carriers Act,(/) and that the onus of proof of value of such animals, and the amount of injury done thereto in all cases, lies with the person claiming compensation for such loss or injury. Where the sender fills up and signs a receiving note on which conditions of carriage are printed, it is presumed that he has assented to them, (g) The leading case (h) regard- ing the interpretation of this section settled that the validity (a) 17 & 18 Vict. c. 31, § 7. (b) And this liability attaches when they carry in vessels not belonging to them in the absence of special contract. See also § 10."). (c) Hodfjman v. W. Mid. Ry. Co., 1865, 6 B. and S. 560 ; see also § 95. {d) Harrison v. L. B. Ry. Co., 1860, 2 B. and S. 152 ; Van Toll v. S.-E. Ry. Co., 12 C.B., N.S. 75. (c) This is a jury question, Harrison, cit. (/) 11 Geo. IV. and 1 Will. IV. c. 68, § 2. (fj) Lexvis V. G. W. Ry. Co., 1860, 29 L.J., Ex. 425. Cockburn, J., in Zunz v. S.-E. Ry. Co., 1869, L.R. 4 Q.B. 539, 544. (h) Peek V. A'. St. Ry. Co., 1863, 10 H. of L. Ca. 473. "JUST AND reasonable" CONDITIONS. 139 of conditions limiting the common law liability of the carrier is subject to their being both adjudged "just and reason- able," and embodied in a signed special contract ; and, also, that the onus of showing them to be reasonable lies with the company alleging them to be so. (a) In regard to the signature of the contract, it is settled that the company cannot repudiate a special contract on the ground of its not being signed by the consignor ;(6) that an agent or servant signing binds his principal, (c) whether the servant can read or not,((Z) but that mere initials are not equivalent to signature under the Act.(e) The value must be truly declared, otherwise the owner is barred from recovering damages ;(/) and if it be declared of less value than £50, the sender cannot recover a sum greater than the declared value. Further, where a very valuable horse was injured through the negligence of a railway com- pany in their yard before the value was declared, it was held to be an injury while " receiving," and that the owner of it could not recover more than £50, even though it was the practice to put horses into horse-boxes before declaring their vahie or paying the fare.(^) 111. Of "Just and Reasonable" Conditions. (70 — The Court is always the judge of this matter, and the onus of proving a condition reasonable lies upon the company. (i) The justice and reasonableness of conditions are purely a question of circumstances, and no definite rule can be laid down.(y) In construing them the Court will give eftect (a) See also 3PManus v. L. tO Y. Ry. Co., Ex. Ch. 18f.9, 4 H. and X. 327, 349 ; Simons v. G. W. Ry. Co., 1857, 2 C.B., N.S. 620. (h) liaxendale v. G. E. Ry. Co., 1869, L.R. 4 Q.B. 244. (c) Baron Martin in Kirby v, G. W. Ry. Co., 18G8, 18 L.T., N.S. 658. {d) Foreman v. G. W. Ry. Co., 1878, 38 L.T., N.S. 851. (c) Peebles v. Cal. Ry. Co., 1875, 2 R. 346. (/) M'Cance v. L. d: N.-W. Ry. Co., 18G1, 7 H. and N. 477. Uj) Ilodgman v. W. Mid. Ry. Co., 1865, 6 B. and S. 560. (h) See this fully treated in Macnamara, Art. 171. (0 Harrison v. L. B. tt- S. C. Ry. Co., 1860, 2 B. and S. 122, 152. 0) Grc'jory v. N.-W. Ry. Co., 1864, 33 L.J., Ex. 155. 140 "JUST AND REASONABLE " CONDITIOXS. to the plain meaning of the language without implying any limitation or exception not expressed. (a) In judging of it, all the circumstances of the contract and transit will be considered ; such — e.g., as the conduct of the sender and his servants who accompany the horse sent by rail. (6) The leading case on this point with regard to horses is M'Manus V. Lancashire c5 Yorkshire Railway Company.{c) A horse was placed by the railway in a truck wdiich was insufficient. In the journey the horse put its foot through a hole in the floor, by Avhich it Avas injured, and the case turned upon the reasonableness of the following condition : — This ticket is issued, subject to the owner's undertaking " all risks of conveyance, loading, and unloading whatsoever, as the com- pany will not be responsible for any injury or damage (how- ever caused) occurring to live stock of any description travelling upon the Lancashire and Yorkshire Railway Com- pany, or in their vehicles." The Court found this condition neither just nor reasonable ; and Justice "Williams observed : — "It is unreasonable that the company should stipulate for exemption from liability, from the consequence of their own negligence, however gross, or misconduct, however flag- rant. "(cZ) Again, a condition that a company shall not be liable for any damage or delay "in any case," has been held unreasonable, (e) Thus, also, a condition that a company is not to be answerable for " any consequences arising from over carriage, detention, or delay in, or in relation to, the. conveying or delivery of said animals, however caused," was held unreasonable, (/) and Chief Justice Cockburn observed: — " It might, perhaps, be reasonable if they had given the plaintiff the choice of two rates, and had made a special («) M'Nally v. L. d: Y. Ry. Co., 1880, 8 L.ll., Ir. Ex. App. 81. (6) Rain v. G. d.- S.-W. Ry. Co., 1869, 7 M. 439. (c) M'Mamts v. L. d- Y. Ry. Co., 1859, 4 H. and N. 327. (d) § 110, see also Paxton v. iV. B. Ry. Co., 1870, 9 M. bO ; and Rooth v. N.-E. Ry. Co., 1867, L.R. 2 Ex. 173. (c) Ashcndon v. L. B. d- S. C. Ry. Co., 1880, L.R. 5 Ex. D. 190 ; Harrison and Gregory, cit. p. 139. (/) Allday v. G. cO ir. A^. Co., 1864, 34 L.J., Q B. 5. ALTERNATIVE RATES. 141 contract limiting their liability in consideration of the lesser rate being paid. But a condition that a company is not to be liable for loss beyond the limits of its own lines, and that money received for the journey beyond its own lines is received for the consigner's convenience is reason- able, (a) A condition disallowing a claim of damages unless made within a specified time, (6) or unless the value be truly declared, (c) is reasonable. 112. Alternative Rates. — \Yhen there is an option of havinof animals carried at a hicfher rate, rendering the com- pany liable, and the horse is carried at the lower rate, the company will not be liable except for their own negligence or fraud, but to contract against that is unreasonable. Lord Wensleydale observed : " A carrier can't sa}-, ' I won't be liable for any loss, unless you pay me a fixed sum to indemnify against all.'"((?) But Avhere the sender knows of a company having a certain rate for carrying horses in horse-boxes by i^assenger train, and lower rate if carried in waggons by goods train, and sent his horse by goods train, it was held a reasonable condition that they should be carried en- tirely at the owner's risk; and that such a condition would pro- tect the railway if the horses were injured, but not from delay, (e) In another case of carriage of cattle there were alternative rates, one the ordinary rate, where the company undertook (rt) Aldridrje V. G. W. Ry. Co., 1864, 33 L.J., C.P. 161 ; see also Wise v. G. TI'. Ry. Co., 1856, 1 H. and N. 63. (b) Simons v. G. W. Ry. Co., 1856, 26 L.J., C.P., 25. (c) Leivisv. G. W. Ry. Co., 1860, 5 H. and N. 867. (d) Peel: v. N. S. Ry. Co., 1863, 10 H. of L. Ca. 473, 578 ; see also M. S. ,£• L. Ry. Co. V. Broun, 1883, 8 App. Ca. 703. (e) Leiuis v. G. W. Ry. Co., 1377, 3 Q.B.D. 195 ; RoUmou v. G. W. Ry. Co., 1865, 35 L.J., C.P. 123 ; Harris v. Mid. Ry. Co., 1876, 25 W.R. 63. See also Moore v. G. N. Ry. Co., 1882, 10 L.R., Ir. 95, where it was also held that a con- dition exempting the company "in all cases from liability for injuries caused by fear or restiveness of animals," did not embrace cases in which the injury imme- diately flowed from these causes directly occasioned by negligence and want of care on the part of the company, but applied to injury from these causes in ordinary transit without negligence on the part of the company, and that it was "reasonable " in this limited sense. 142 CONDITIONS WHERE FREE PASS IS GIVEN TO GROOM. the ordinaiy liability of a carrier ; the other a reduced rate, where the company were to be free from all responsibility (including liability for loss, injury, delay), unless such injury should be occasioned by the intentional and Avilful neglect or misconduct of the compan3''s servants. The train arrived late, and some of the cattle died, others were injured, and loss of market Avas also incurred. Inter alia, a condition in the following terms was held reason- able : — " The company will in no case be responsible for an}^ injury sustained by reason of the overcrowding of waggons, or by such overcrowding and delay in transit, where such overcrowding takes place at the instance of the owner or sender, or person in charge of animals." It was also held that the reasonableness of the alternative rate was for the judge and not for a jury, (a) 113. Conditions where Free Pass is given to Groom. — Further, a condition Avhere a pass is given for a drover to ride with his animals, that the company is to be held free " from all risks in respect of any damages arising in the loading or unloading, from suffocation or being trampled upon, bruised, or otherwise injured in transit, from lire, or from any other cause whatsoever," was held reasonable, the drover having means of ascertaining the sufficiency of the vehicle supplied. (6) But a condition that an " owner undertakes all risks of loadinof, unloading, and carriage, whether arising from the negligence or default of the company or their servants, or from defect or imperfection in the station platform, or other places of loading, ... or of the carriage, ... or from any other cause whatever," is unreasonable, and its unreason- ableness is not destroyed by granting free passes to persons having care of live stock, (c) (a) Sheridan v. M. G. W. Ry. Ir. Co., 1888, 2i L.R., Jr. 146. In tliis case there will be found six conditions all held reasonable. (h) ParcUwjton v, S.-W. Ry. Co., 1856, 1 H. and N. 392. (c) Rooth V. N.-E. Ry. Co., 1867, L.R. 2 E.\-. 173. UNREASONABLE CONDITIONS. 143 114. Unreasonable Conditions. («) — The foUoAving condi- tion about cattle transit Avas held unreasonable, viz. : — " That the owner or his representative is required to see to the efficiency of such waggon before he allows his stock to be placed therein, and complaint must be made in writing to the station inspector or clerk in charge as to all alleged defects, either at the time of booking or before the wago"on leaves the station." (6) Again, a condition that "all goods delivered to a company will bo received and held by them subject to a general lien for all money due to them, whether for carriage of such goods or for other charges," was held not just and reasonable. (c) Again, it has been held unreason- able for a company, carrying partly by sea and partly by land, to exempt itself from liability from the consequences of the negligence of the captain and crew of the steamer eno-a^^ed m the sea transit, which Avas worked by and belono-ed to a steam packet company working under an arrangement with the raihvay company. (tZ) Where cattle Avere prepaid at " owner's risk," and detained by a company for a lien which turned out to be unfounded, the company was found Hable in damage, (e) When there is an exemption from damage of a special kind, it Avill not relieve the company Avhen loss or damage is distinctly traceable to their fault. Thus, damage by leakage or breakage is not covered by the exemption if negligence supervene on the part of a raihvay company, (/) or those who are agents for them to complete a journey, {g) Where a consignee delays unreasonably, after receiving his horse, to give notice of damage done to it in course of transit, he is barred from objecting to its condition. (It) (a) See also §§ 111, 112, 11-3. (b) Gregory v. IF. M. Ry. Co., 1864, 3:3 L.J., E.x. 155. (c) PcchUi V. Cid. Ry. Co., 187.5, 2 R. 34G. {d) Moore V. M. Ry. Co., 1875, 9 Ir. C.L. 20. (e) Go7-don v. Gt. IF. Ry. Co., 1881, 8 Q.B.D. 44. (/) Phillips V. Clark, 1857, 2 C.B., N.S. 163. (9) § 105. (A) Stewart v. Cat. Ry. Co., 1878, 5 R. 426. 144 RESPONSIBILITY OF CARRIERS BY WATER. 115. The Limit of Damage Recoverable. — Under the Act no more than £50 can be recovered from a railway or canal company for damage to or loss of a horse, unless under declaration of a higher value,(a) and the declared value is taxative.(6) The chance of obtaining a prize is too remote a ground for damage, (c) If recovery is sought at the price of a sub- sale rendered ineftectual by the injury, there must have been an actual contract to purchase at that figure, (d) If, on failure to provide proper horse-boxes, the customer has to provide other means of transit for horses out of condition, the company is bound to make good only the deterioration which 'the horses would have suffered if they had been in good condition, and the expenses for time and labour on the road;(e) and it is a jury question whether the customer would not be entitled to a special train for their conveyance, if there Avere no ordinary trains for delivery within reason- able time.(/) 116. Responsibility of Carriers by Water. — When the carriage is by canal it is under the same rules as carriage by railway companies.((/) Common carriers by water are under the obligations already referred to and explained, so far as they are applicable to this description of transit. (/t) Where carriage is by a special contract, the owner is bound to supply a seaworthy vessel, properly manned and navigated, with all necessary equij)ments and documents for safety, (i) The vessel(y) must not be overloaded, and the horse must be kept safe from all perils, such as concussion or (a) See § 110 ; 17 & 18 Vict. c. 31, § 7. (6) M'Cance v. L. d- N.-W. By. Co., 1864, 3 H. and C. 343. (c) Watson v. A. N. ct B. Ihj. Co., 185], 15 Jur. 448. {(l) Hart V. Baxendah, 1867, 16 L.T., N.S. 390, Martin, R. (f) Waller V. M. G. W. Ky. Co., 1879, L.K. 4 Ir. 376. (/) Donohoc V. L. .0 N.-W. Ry. Co., 1867, 15 W.R. 792. {rj) §§ 93-108. [h) % 93. (0 13. Pr. 408. (j) Regulations for conveyance of horses in passenger steamers, Appx. vi. RESPONSIBILITY OF CARRIERS BY WATER. 145 explosion, (ft) and there must be no deviation from the usual course of the voyage,(6) and the vessel must be reasonably fitted and prepared for the carriage of animals. Thus, where a vessel which had carried cattle with foot-and-mouth disease was not properly cleansed before a fresh lot were put on board, and, owing to this, they took the disease and died, the shipowners were found liable in damages, (c) A common carrier by sea is not liable at common law for loss which is the result of inevitable accident caused by the act of God, the Queen's enemies,(cZ) or inherent vice of the horse carried, unless aggravated by himself (e) or by the fault of the consignor or his servants travelling along with the horse conveyed. Perils of the sea,(/) when unavoidable, come under the category of accidents, and are a valid defence to the carrier, but they cannot be pleaded in answer to a claim of damage caused by deviation from the usual course of the voyage. ((/) Perils of the sea include such unavoidable dangers as stress of weather, winds, waves, lightning and tempests, rocks, sand banks, collisions, (/i) and a common carrier is not bound to restore what is thrown overboard for common safety.(i) The exceptions, however, do not excuse the carrier where he has deviated from the course of the voyage,(^') or has been negligent, (A;) or has failed to obviate loss when it was m his power to do so ; (l) nor where the loss is caused by the ship's unseaworthiness, (m) (a) B. Pr. 167. (b) Davis V. Garrett, 1830, 6 Bing. 716. (c) Tattersall v. N. Steamship Co., 1884, L.R. 12 Q.B.D. 297. {d) § 108, p. 135, note (a). (c) § 109 ; Carver, § 13. {/) See Abbot, 13th ed., p. 450, et seq. (g) B. Pr. 241 ; as to onus shifting in case of stress of weather, see WiUiains v. Dohic, 1884, 11 R. 982. {h) Carver, § 93. (0 Ibid. § 15. {j ) Davis, cit. (k) Phillips V. Clarlc, 1857, 2 C.B., N.S. 156 ; Siordct v. ILdl, 1S2S, 4 Bing. 607. (I) Notara s. Henderson, 1872, L.R. 7 Q.B. 225; The Freedom, 1871, L.R. 3 P.O. 594. (»i) Steel V. State Line S. S. Co., 1877, 3 L.R. App. Ca. 72. L 140 LIMITATIONS OF LIABILITy OF CARRIER BY SEA. It has been held that this strict rule of the liability of a common carrier, applies to the case of a vessel used exclusively for the purposes of one person avIio engaged her services for the voyage, (ct) By the Merchant Shipping Act, 1854, § 388: "No owner or master of any ship shall be answerable to any person Avhatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship, within any district where the employment of such pilot is compulsory by law," but if the master is guilty of contributory fault this provision does not free him. (6) The mere fact that the pilot is on board does not relieve the master and crew of their liability, (c) 117. Statutory Limitations of Liability of Carrier by Sea. — By the Merchant Shipping Act, 1854f,{d) Part xi. sec. 503 : " No owner of any sea-going ship(e) or share therein shall be liable to make good any loss or damages that may happen without his actual fault or privity ... to any goods, mer- chandise, or other things whatsoever taken in or put on board any such ship by reason of any fire happening on board such ship." This section does not apply to foreign ships,(/) nor lighters used in landing from a ship.(<7) By the Merchant (a) Liver Allcali Co. v. Johnson, 1872, L.R. 7 Ex. 267 ; Carver, § 5 ; but it has been held that a bailee of a horse was excused from re-delivering it when it had become sick and died without any neglect on his part, on the ground that this happened by the act of God. Cases of this kind are now generally excepted, on the ground that the loss is by a defect in the thing itself. But such a case may fall within tlie definition of "act of God," if the defect or disease which has caused the loss has been in no way caused by the act of man ( Williams v. Lloyd, W. Jones' Rep. 179, cit. Carver, 10) ; The Ida, 1875, 32 L.T., N.S. 541. (b) The lona, 1867, L.R. 1 P.C. 426 ; Clyde Nav. Co. v. Barclay, 1876, L.R. 1 App. Ca. 790 ; Brett, L.J., in Guy Mannering, 1882, 7 P.D. 132-134. (c) Carver, § 32. (d) 17 & 18 Vict. c. 104. (c) Ship includes every kind of vessel not propelled by oars. See Ex parte Fcr- ffuson, 1871, L.R. 6 Q.B. 280; The C. S. Butler, 1874, L.R., 4 Ad. and Eccl. 238 ; The Mac, 1882, 7 P.D. 126. (/) Cope V. Dohcrty, 1858, 27 L.J., Ch. 600. (g) Morcwood v. PoUok, 1853, 22 L.J., Q.B. 250 ; Uuntcr v. M'Goxm, 1819, 1 Bligh. App. Ca. 573. These cases were under Geo. III. c. 86, § 2. CARRIAGE BY SEA BY SPECIAL CONTRACT. 147 Shipping Amendment Act, 18G2, section 54: "The owners of any ship, whether British or foreign, shall not, where any of the following events occur without their actual fault or privity, that is to say, . . . (2.) Where any damage or loss is caused to any goods, merchandise, or any other thing whatsoever on board any such ship, (a) . . . (4.) Where any loss or damage is, by reason of the impro- ■pev navigation of such ship, as aforesaid, caused to any other sliip or boat, or to any goods, merchan- dise, or other thing whatsoever on board any other ship or boat, be answerable for loss or damage ... to sfoods, to an asfffre- gate amount exceeding £8 for each ton of the ship's tonnage," such tonnage to be registered tonnage in the case of sailing ship, and in the case of steamships the gross tonnage. This benefit is extended by the Regulation of Railways Act, 1871, to railways carrying partly by rail and partly by sea, provided the loss happened during carriage by the vessel, and the onus of showing that it did so is laid on the railway company, (b) 118. Carriage by Sea by Special Contract. — The contract of affreightment which contains the specification of the animal or animals to be carried, the freight and the modifi- cations of the common law responsibilities of the shipowner may be by charter-party or by bill of lading. (c) The former occurs when the ship itself is chartered, the latter is usually adopted in the carriage of horses ; and the bill of lading is the ordinary document embodying evidence of a contract of carriage between the shipowner and the shipper. Under the present state of the law, shipowners, as has already been pointed out, are liable as common carriers to make good all (a) This does not apply to loss after transhipment into another ship in conse- quence of a collision, Bernina, 1886, 12 P.D. 36. {h) 34 & 35 Vict. c. 78, § 12. See also § 105. (c) See form. Appendix vii. 148 CARRIAGE BY SEA HY SPECIAL CONTRACT. loss or damage to horses entrusted to their custody for carri- age, (a) They are protected at common law from losses due to inevitable accident, (6) and, in certain cases, inherent vice of the horse carried.(c) They are protected by statute from loss by fire, or loss due to the fault of a pilot when his employment is compulsory by statute. (c?) The Carriers Act, 1830, (e) moreover, has no application in carriage by water ; nor is there any provision under the Merchant Ship- ping Act(/) under Avhich a shipowner may assume the responsibility for safe carriage of animals on a declaration of their value and payment of an increased rate by the shipper ; accordingly, shipowners are left free to limit their responsibility by notices which are now framed, fencing them against almost every possible contingency. (,270. FURIOUS RIDING AND DRIVING. 165 but must keep it secure in its tield or stable. It is trespass to allow sucli straying ; (a) and the statute of ]GSG, c. 11, enacts that " all heritors, liferenters, tenants, cottars, and other possessors of lands and houses shall cause herd their horses . . . the whole year," under a penalty of half a merk for each beast " they shall have upon their neighbour's ground, by and attour the damage done to the grass or planting ; " and the possessor of the ground has power to detain the animal for the penalty and expense of keep. This Act is still in observance ;(6) but the usual remedy where no damage has been done is interdict, Avhich, however, will only be granted when there is reasonable apprehension that the offence will be repeated. (c) If injury is done by a straying animal, the owner of it is liable in damages, but the mere fact of ownership does not of itself render him liable, although it raises a presumption that the injury was due to his fault in not keeping it secure. ((?) Again, stables must be used reasonably, so as not to annoy neighbours. Thus, where the ground floor of a dwelling- house, in a street in London, had been converted into a stable, by a previous occupier, and the new occupier increased the number of horses kept, so that the noise thereby occasioned had an injurious effect on the value of adjoining property, it was held that a nuisance was created, (e) 131. Furious Riding and Driving. — Riders (/) and drivers of vehicles are bound to go at a moderate pace. The speed at which they may go depends upon a variety of circum- stances— the time of day or night, the state of the traffic, and the like ; and negligence in the management of horses is (a) Rankine's Land-Ownership, 128, 534, et scq. (b) M' Arthur v. Miller, 1873, 1 R. 248. (c) Nay's Trs. v. Younrj, 1877, 4 R. 398. (d) Lord Neaves in Campbell v. Kennedy, 1864, 3 M. 121-125. (e) Ball V. Ray, 1873, L.R. 8 Ch. App. 467 ; Brodcr v. Sailliard, 1876, L.R. 2 Ch. D. 692. (/) Brown v. Fulton, 1881, 9 R. 36. 166 FURIOUS RIDING AND DRIVING. purely a jury question. Thus, a driver of a pony carriage who, on a dark night in January, between seven and eight o'clock, while driving, without hghts, at the rate of about six miles an hour, knocked down a foot passenger on the carriage-way of a public road which had a footpath on one side, was found liable in damages, it being proved that he saAv the passenger about fifteen yards oft', and that he neither called out nor slackened his pace.(a) If the streets be more than usually crowded, there is greater care necessary on the driver's part. (6) Again, when snow is on the ground, drivers are bound to exercise more caution, (c) and also when coming to a crossing, (c?) and if a frail or old person is in his way, there is an additional degree of vigilance required of a driver,(e) and in turning a corner a stricter care is required than in going straight along a road.(/) " Where the cbiver of a vehicle drives over a person, in broad daylight, there is the strongest presumption, both in fact and m law, that the driver was in fault," ((/) and "where a person, driving a carriage, notices another in front for the first time, when he is only ten or twelve yards off", it almost raises a presump- tion that he was in fault in not keeping a better look- out."(/i) Again, in an action for injuries, received by a young child, through being run over in the street by a milk van, it was proved that the accident happened in daylight, that the driver was seated on the shaft, and not on the driv- ing seat, and that the van was driven at a considerable pace, the Court held the owner of the cart liable in damages, (i) Lord Young observed : — " We may almost take judicial (fO Gibson v. Milvoy, 1S79, 6 R. 890. {b) Reg V. Murray, 1852, 5 Co.x's Cr. Ca. 509. (c) Cotton V. Wood, 1860, 29 L.J., C.P. 333. (d) Williams v. Richards, 1852, 3 C. and K. 81. (e) Boss V. Litton, 1832, 5 C. and P. 407. (/) Per Chief-Justice Deninan in Mayor of Colchester v. Brooke, 1845, 7 Q. B. 339-359. (y) Lord Justice-Clerk Moncreiff in Clcr/c v. Pctrie, 1S79, 6 K. 1076 ; Anderson V. Btac/cicood, 1886, 13 R. 443. (h) Lord Gifford in Clerk, cit. p. 1078. (i) Grant v. Glasgow Dairy Co., ISSl, 9 R. IS 2. NEGLECTING TO WAEN AND PULL-UP. 1G7 notice of the fact that, when two lads are m charge of a Hght van hke this, they drive at a furious pace. In fact, the thmg is so notorious that, against such a van as this, driven by bo3's who are laughing and chatting together, and which has run over a person in daylight, the presumption is in-esistibly strong, and I think it wholesome, in the interests of the public, that masters who send out boys with such vans, should be held responsible for the injuries inflicted by the recklessness of these drivers. («) And Lord Justice-Clerk Moncreiff said : — " The driver of the dairy cart was not in his right place — the driving seat — and when the driver is not in his right place, I assume he takes some risk for what ma}- happen through want of sufficient command over his horse." (6) Where two vehicles are racing along the road, an action is relevant against both or either of the wrong- doers. 132. Neglecting to Warn and Pull-up — When a foot- passenger is in front of a vehicle, as — e.g., in crossing the street, the driver of it is not entitled to drive on regardless of consequences. He must not only give a warning, but also see that his warning is attended to. Tliis rule was established in a case where the driver of a dogcart, driving at a speed of five or six miles an hour, in daylight ran over an old woman of ninety-four. He called out to the old woman, but she could not hear him. The Court held him liable in damages ; Lord Giftbrd observmo- : — " A driver who is approaching a person whom it is necessary to warn is bound either to stop or to slacken speed, so as to be able to stoj) if the warning should not be heard or should be mis- understood. He is bound to wait to see whether his warn- ing is attended to ; the defender failed to do this, and there was thus fault on his part. He should have been able to avoid the old lady whether she heard him or not."(f) («) Grant, cit. p. 185. (h) Ibid. p. 185. (c) Clerk v. Petrie, 1879, 6 II. 10761078. 168 HORSE TOO LARGE FOR VAX. Again, where a man, while walking in a carriage way, with pavement on each side, was knocked down by a van coming up in broad daylight, the driver was held liable in damages. Lord Young observed : — " My opinion is not founded on the pace. The driver was going at such a pace that he could Avithout difficulty have pulled up in time; if not, that itself would have been fault. The appellant was walkinsr alonsr the road Avhere he was entitled to be, and he was knocked down and hurt. The driver was not entitled to knock him down ; it was his duty to avoid him. He could quite well have done so ; and that he could, but did not, seems to have been because he thought the man must get out of his way. There is prima facie fault leading to liabil- ity if a driver of a carriage so knocks up against a passenger. It is his duty to be able to pull up, and to do it, and not just to run over one who, even from stupidity, does not get out of the way. "(a) But where a driver of a van called out to an old man, who halted, and then tried to cross in front of the van, which, however, knocked him down and killed him, it was held the man's death was not caused by the negligence of the driver, but in consequence of what was merely a mis- understanding. (6) 133. Horse too Large for Van. — A person was driving a sixteen-hands horse along the highway in a van which was far too small for such a horse, and, in consequence, the horse's hocks rubbed against the crossbar of the shafts of the van. The plaintiff's omnibus was standing at the kerb, on its proper side. The defendant's horse was startled by a slight collision with a cab, and afterwards violently collided with the plaintiff's omnibus, producing damage ; the judge's opinion being that no accident would have happened if the horse had not been too large for the van. It was held that the harnessing of the horse to such a van Avas the negligence (a) Anderson v. Blackwood, 1S86, 13 K. 443-4^5. (b) Uocheriy v. Watson, 1884, 21 S.L.R. 449. DRIVING TOO CLOSE TO ANOTHER VEHICLE. 169 which materially led to the accident, and the defendant was found liable, notwithstanding that he did his best as far as driving was concerned in the circumstances, (ct) 134. Driving too Close to another Vehicle The driver of a second vehicle must keep a reasonable distance between his OAvn and the one in front. Thus, two omnibuses were driving along a narrow road at a moderate speed, and a number of children were ]-unning after the first omnibus. One of the children, a boy of six years old, having fallen, the driver of the second omnibus was so near that he could not pull up his horses in time, and the wheel of his omnibus went over the boy, and killed him. The driver Avas found liable in damages. Lord President Inglis said : — " It is extremely vexatious and provoking for drivers of all kinds that children should get in their way. But I am afraid that it is part of the disposition of boys and girls to get in the way of carriages, and that it is a fact in the natural history of 3'oung people which must be taken into account in dealing with the duty of drivers. Drivers must take account of this disposi- tion as an incident inseparable from their occupation. The question is, Avhether the driver followed his duty in respect of these children, or whether he failed in his duty ? Now, my opinion is that he failed in his duty. The result of the whole evidence is that he was too near the other omnibus. If he had been twenty or thirty yards farther back this acci- dent would not, or might not, have happened. ... It was impossible for the driver to pull up the horse, even with the assistance of the passengers beside him, before the wheels passed over the boy. This proves that he was too near."(?>) Again, where the driver of a tram car, having observed a cab at a stance from a distance of fifty yards off, and whistled on approaching it, but yet ran into it, and injured the horse and cab, the defence that the driver expected the cab to be driven (a) Ihirhin v. lillezikdji, 1889, 53 J.P. 760. (I) Auld V. M'Bei/, 1881, 8 R. 495. 170 ENTRUSTING A HORSE TO AN INCOMPETENT PARTY. out of liis way Avas not sustained, and the traiLway company were found liable in damages, (a) 135. Leaving a Horse Unattended. — If one leaves a horse and cart standinj? in the street, or his servant does so,(6) he must take the risk of any mischief that may ensue. Thus, an owner was found liable in these circumstances though the damage was occasioned by the act of a passer-by in striking the horse,(c) and also where a child was injured who was partly to blame. (cZ) But where a driver of a cab at a stance at a railway station got down from his box, took a bag of oats and filled his horse's nosebag and turned to put the bag in its place which was only ten feet oflf, and mean- while the horse bolted, causing injury; it was held there was no fault on the driver so as to make his master liable, not- withstanding a regulation by the magistrates that the driver when on his stance must be either on the box or at the horse's head.(e) In another case, where injury was done to a horse by a ]3ony and chaise running against it, there was evidence in defence that the defendant's wife was holding the pony by a bridle, and that a Punch-and-Judy show came past and frightened the pony which ran off Avith the chaise and caused the damage ; it Avas held that if this Avere true the defence Avas good.(/) 136. Entrusting a Horse to an Incompetent Party. — Negligence Avill also be inferred from entrusting a fractious horse to one unaccustomed to horses and unskilful in their management. Thus, AA'here a father in the knoAvledge that his son, a boy of fourteen, had neither strength nor experience (a) M'Dcrmaid v. Edinburgh Street Tramways Company, 1884, 12 R. 16. (h) Frascr v. Bunlop, 1822, 1 S. 2ii8 ; Jiaird v. Hamilton, 182G, 4 S. 790 ; see also M'Laren v. Mae, 1827, 4 Mur. 382 ; Miller v. Harvie, 1827, 4 M. 385. (c) JUidgc V. Gooduin, 1831, 5 C. and P. 190. (d) Lynch v. Nurdin, 1841, 1 Q.B. 29, where the English decisions are collected. {c) Shaw V. Croall, 1885, 12 R. 1186. (/) Goodman v. Taylor, 1832, 5 C. and P. 410. FAILURE TO TAKE CARE OF A VICIOUS HORSE. 171 to command a horse, entrusted it to him, and a foot-passenger was injured by the horse when ridden by the boy, an issue was allowed against both father and son. (a) 137. Failure to take care of a Vicious Horse. — When animals of a -vicious or obstreperous nature are taken along the public thoroughfare, especial care must be taken that they do no injury, and if they are not reasonably kept in subjection their owners are liable for any damage that may thereby ensue ;(6) but merely riding a restive horse which is not known to be so is no ground of action ;(c) and generally with respect to animals either savage by nature or easily infuriated, like a bull or a stallion, the owner takes the risk of their straying in the highway unattended, or getting into a field through which there is a right of way. His blame or fault consists in not securing them adequately against danger to the community, and he is answerable if any harm happen to a member of the public, (c?) If one keeps a horse or any other animal and has no reason to suppose that it is ferocious, the mere fact that it has turned out so would not make him liable for anything that it has done. But if ferocity is estabhshed and known, (e) and especially if notice be given that it is fierce or vicious, one keeps such an animal at his peril, and the keeper of it is not discharged by using diligence which turns out to be ineffectual. (/) Reasonable diligence is no defence to a civil action in such a case,((7) but will be considered where the keeper of such an animal is («) £roini V. Fithon, 1881, 9 R. 36. (h) See Harpers v. G. N. Eij. Co., 1886, 13 R. 1139. So are carriers, see § 101, p. 129. (c) Bammock v. White, 1862, 11 C.B., N.S. 588. {(l) Clark V. Armatronr/, 1862, 24 D. 1315 ; but the duty of the owner of such animal is different in regard to servants about his own place, wliere the animal is kept in an enclosure, Lord Benhobiie in Clark, cit. p. 1320. (e) Renwick v. Von RotUry, 1875, 2 R. 855 ; Fra»cr v. Bell, 1887, 14 R. 811. (/) Ulackman v. Simmons, 1827, 3 C. and P. 138. () or through a gate the owner is bound to repair, and it thereby does injury, he is liable,(c) and similarl}^, if one break a young horse in a public thoroughfare, he will be liable if damage ensue. 138. Making Noises which Frighten Horse. — Where a person negligently makes a noise, which frightens a horse, he is liable for injury sustained through his wrongful act. Thus, where an engine-driver blew off steam at a level crossing, with the result of frightening horses waiting to cross, and the place was one where there was considerable traffic, it was held to be actionable negligence on the part of the company. (cZ) In another case against a railway company, it appeared that the plaintiffs were leaving a station belonging to the defendants, in a carriage, when the horse was frightened by the sight and sound of a locomotive encjine at the station, which was blow- ing off steam, and the carriage was upset, and the plaintiffs injured. It did not appear that the engine was defective, or that it was used in an improper manner, or that the apjjroach to the station was inconvenient, but the jury found that the defendants were guilty of negligence in not screen- ing the railway from the roadway to the station, and that such negligence had caused the accident. It was held, on appeal, that the defendants were not liable, as there was no evidence of any obligation on their part to screen the rail- way from the road.(e) And where a i:)lain tiff's horse took fright and injured itself, in consequence of the defendant's dogs barking at him, a verdict was obtained, with damages, (a) See Lord Young in Burton, cit. supra, p. 896. (6) Michael v. Alcstrcc, 2 Lev. 172. (c) See Lee v. llilcy, 1865, 18 C.K, N.S. 722; Ellis v. Loftus Iron Co., 187^ L.R. 10 C.P. 10, where the horse itself is thereby injured. (d) M. S. J. .b A. Ry. Co. v. FaJlarton, 1863, ]•! C.B., N.8. .54. {c) Slmkin V. /.. <(• N.-W. liy. Co., 1888, 21 Q.B.D. 453, and the strong doubt expressed by Lord Fry to the judgment ; see also Jiamsden v. L. ifc 1'. Ry. Co., 1888, 53 J. P. 183, noise in the pump-house of a railway causing horses to bolt. LEAVING OBSTACLES IN EOAD. l73 for the plaintiff, (a) Wliere an action is brought against the owner of a dog, in consequence of its having clone injury to sheep or cattle, it is not necessary for the pursuer to prove a previous propensity in the dog to injure sheep and cattle,(6) and under a similar statute in England, horses and mares have been held included under "sheep and cattle." (c) The occupier of the house or premises, in which the sheep and cattle have been injured, is considered the owner of the dog unless he can prove the contrary, and that it was kept on his premises without his sanction or kno\vledge.((?.) 139. Leaving Obstacles in the Road. — One who negligently leaves anything on the road, which should not be there, is liable if a horse takes fright from it and damage be sustained. Thus, to leave on the road a fire-basket, (e) or van attached to a steam plough, on the grassy side of the highway,(/) or a heap of manure,(^) lime,(/i) or stones ('i) on the road, are acts amounting to negligence. But " a party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right "(y); and where an ass was left fettered in the highway, and killed by the driver of a waggon, Baron Parke observed : — " Although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as Avould be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public (a) Read v. King, Guildhall, 1858, cited Oliphant, p. 351 ; see also Wakeman v. Robinson, 1823, 1 Bing. 213. (i) 26 & 27 Vict. c. 100, § 1. (c) Wright V. Pearson, 1869, L.R. 4 Q.B. 582. (d) 26 & 27 Vict. c. 100, § 2. (e) Lambert v. Harrison, Guildhall, 1853, cited Oliphant, 302. (/) Harris v. Mobbs, 1878, L.R. 3 Ex. D. 268. (9) Gassiot v. Carpmeal, 1852, 19 L.T. 64, 94. (h) M'Lean v. Russell, 1850, 12 D. 887. (i) Gunn V. Gardiner, 1820, 2 Mur. 194. ij) Lord Ellenborough in Butterfield v. Forrester, 1809, 11 East. 69 ; see also Chief- Justice Cockburn in Clark v. Chambers, 1878, L.R. 3 Q.B.D. 327. 174- NEGLECTING TO FENCE DANGEROUS PLACES. highway, or even over a man lying asleep there, or the pur- posely running against a carriage going on the wrong side of the road." (a) Koad trustees and police commissioners are liable for damage caused by heaps of rubbish or other material wrongously left by them on the road. (6) In one case, police commissioners pleaded no liability, having con- tracted with a third party to clean the streets, and that the negligence, if any, Avas his, not theirs. Upon the contract, it Avas held that they retained control over the operations, and were, therefore, liable ; and the question was raised whether they could free themselves from liability by delegat- ing this statutory duty, even if the contractor had had sole control of the works. (c) In another case, where fog pre- vented police commissioners from removing mud heaps, they were held not liable for injury caused from their being left where they were.^d) 140. Neglecting to Fence Dangerous Places. — What is sufficient fencing is a question of circumstances (e) ; but a railway is bound to keep its disused line duly fenced,(/) and it has been held negligence, on the part of road trustees, to fail to shut up an old road.((/) Public railways may cross roads if they have the statutory gates, but where a private railway crossed a public road on the level, and was not shut off by gates, and a horse strayed on it and Avas killed, the road trustees were held liable, it being in their poAver to protect themselves by refusing to proprietors of private railways permission to cross their roads on the level or by imposing (a) Bavies v. Mann, 1842, 10 M. and W, 546. (b) Watson v. Scott, 1838, M'F. 146 ; Virtue v. Alloa Police Commissionerg, 1873, 1 K. 285. (c) Stephen v. Thurso Police Commissioners, 1876, 3 R. 535 ; see also I/arris v. Magistrates of Leith, 1881, 8 R. 613. (d) Barton v. Kinninf/ Park Comviissloners, Januarj', 1892, 29 S.L.R. 329. (c) Greer v. Stirlingshire Road Trustees, 1882, 9 R. 1069; Morran v. Waddel, 1883, 11 R. 44. (/) Simpson V. Cal. Ry. Co., 1878, 5 R, 525. [g) MaclacKlan v. Road Trustees, 1827, 4 Mur. 216. FOOT-PASSENGERS. 1 7 5 such conditions as tliey thought necessary. (a) In cases of danger, railway locomotives must give an alarm whistle. (6) 141. Collisions. — Collisions are subject to the ordinary laws of negligence, already treated — viz., that the injurer is answerable, but the injured party must exercise due care. They may occur in three different ways. First, one party may be to blame only ; second, both parties may be to blame ; and third, neither party may be to blame. If a col- lision occur, and the injured party can prove negligence on the part of the injurer, and that he himself took reasonable and proper care to avoid the injury, the other party is answer- able. But although there may have been negligence on the part of the injurer, yet, if by ordinary care the injured party could have avoided the injury, and he fail to avoid it, he is the author of his own wrong, and cannot recover, (c) Where both parties are to blame, neither party can recover ; and Avhere neither party is to blame, the injury arises from an accident, (f?) and the injurer is not liable. 3. The Rule of the Road. 142. Foot-passengers. — The footpath at the side of a road is for the accommodation of foot-passengers only, and the use.of it is forbidden to horses and vehicles ; (e) but a foot-passenger has a right not only to cross a road, but also to walk along the carriage Avay, and it is the duty of drivers to avoid injuring foot-passengers when doing so ; and if a driver cannot pull up in time because his reins break, it is no defence, as he is bound to have proper tackle.(/) Where a foot-passenger walks (a) Matson v. Baird, 1878, 5 R. (H.L.) 211 ; Charman v. S.-E. Ry. Co., 1888, 21 Q.B.D. 524. (h) Russell V. Cal. Ry. Co., 1879, 7 R. 148 ; Irelmid v. N. B. Ry. Co., 1882, 10 R. 53. (c) BvUerfieJd v. Forrester, 1809, 11 Ecast. 59 ; see also § 161. (d) See § ICO. (c) 41 & 42 Vict. c. 51. § 96. (/) Cotterill v. Starkey, 1839, 8 C. and P. 691, 176 FOOT-PASSENGERS. on the carriage way in the most crowded thoroughfare he does so entirely at his own risk, and such an act is strong evidence of liis ijoinsjf in face of a known dan<^er. When passengers and vehicles are on the road, there arise reciprocal duties of keeping out of each other's way. Thus Chief- Justice Pollock observed : — " It is the duty of persons who are driving over a crossing for foot-passengers to drive slowly, cautiously, carefully ; but it is also the duty of a foot- passenger to use due care and caution in going upon a crossing at the entrance of a street so as not to get among the carriages, and thus receive injury," (a) and Chief- Justice Erie said : — " It is as much the duty of foot-passengers in crossing the street or road to look out for passing vehicles as it is the duty of drivers to see that they do not run over foot-passengers. "(6) The tendency of recent decisions in Scot- land, however, is that the driver must avoid the foot-passenger. Thus Lord Justice-Clerk Moncreiff said : — " There is no doubt as to the relations between wheeled vehicles and persons on the road. . . . There is no doubt that it lies on the driver to keep clear of foot-passengers. If a person is guilty of such fault as to increase the burden of that obligation, that is another matter, but the primary obligation is undoubted to keep clear of foot-passengers ;"(c) and Lord Young to the same effect said: — " A man may stupidly get into the way of a carriage. I express no opinion on such cases as that, for each case of that kind must be judged by its own circumstances, and it may be that a driver having a clear road before him may count on an intelligent, and even an unintelligent, being not getting in before his horse, and might not be responsible for his doing so, but here the man was walking steadily along the road, and the van came up behind him and knocked him down. And my verdict is, that the driver was to blame for not pulling up or turning aside, but going straight on, leaving (a) Williams v. Richards, 1852, 3 C. and K. 81. (6) Cotton V. Wood, 1860, 8 C.B., I^.S. 568, 571. See also IlaivJcins v. Cooper,. 1838, 8 C. and P. 473. (c) M'Kcchniev. Coupcr, 1887, 14 R. 345. FOOT-PASSENGERS. 177 it to the appellant to get out of the way or take tlie conse- quences, (a) Tliis duty is all the more strict if the person in tlie road be frail,(6) old,(c) deaf or very young. ((/) And accordingly a negligent driver cannot escape liability by proving that if the injured party had gone to the one side or the other, or had stood still, no accident would have happened, the principle being that a person who by his misconduct places another m such a dilemma is responsible for what happens, (e) But if the passenger, by his own want of cautiou, come in front of a vehicle and is injured, as — e.g., by getting out on the wrong side of a tramcar, the driver of the vehicle is not Hable.C/) 143. Vehicles — The Koads and Bridges Act, incorporat- ing a clause in the General Turnpike Act, rendered statutory the general rule that when vehicles meet they must pass each other on the left side, and enforced this by a penalty not exceeding £5 over and above the damages occasioned by failure to observe it.{g) In crossing, the driver must bear to the left and pass behind the other carriage,(/i) and one overtak- ing another must pass on the right, (i) In theory the rule of the road is this : "The highway is divided into two parts, half of it being appropriated to the traffic going the one way and half to the traffic going the other way.' When the two traffics meet they are bound to keep each other on the whip or right side ; thus each is restricted to one half of the highway. When one vehicle is coming in the same direction as another (a) Anderson v. Blackwood, 1886, 13 It. 443, 445. (6) Boss V. Litton, 1832, 5 C. and P. 407, where a paralytic was run over, and cases cited in § 131. (c) Clerk v. Pctrie, 1879, 6 E. 1076. (d) See § 162, contributory negligence of pupil children. (e) Lord Ellenborough in Jones v. Boyce, 1816, 1 Stark. 493, 495 ; Chrk, cit. (/) Ramsay v. Thomson d- Sons, 1881, 9 R. 140 ; see § 160; Jardinev. Stoneficld Laundry Co., 1887, 14 R. 839. (y) 41 & 42 Vict. c. 51, § 123 (Scb. C, § 97). (A) Wayde v. Lady Carr, 1823, 2 Dowl. and R. 255. (i) Cliaplin V. Ilawes, 1828, 3 C. and P. 554 ; Lord Young in Rainsay v. Thom- son (L- Sons, cit. supra. N 178 TRAMCARS. and the one behind is going faster than the one in front, the rule is, not that the one behind is to go across the medium filum to the other half of the road, but that the one in front shall draw to the side and let the faster vehicle pass ; and this is essential, because if there is an obstruction in the centre of the road, then the one coming behind is not bound to take the right side ; he must take the vacant part of his side of the road. This is the rationale of the rule of the road where the thoroughfare is crowded, "(a) The rule applies both to saddle-horses and carriages.(6) This rule, however, is subject to exceptions. If an injury can be averted by departing from it, a driver is liable if he cause an injury by adhering to the rule of the road ; (c) but when parties meet suddenly and an injury results, the party on the wrong side is held answerable unless it appear clearly that the party on the proper side had ample means and opportunity to prevent it ; {d) and a person riding or driving upon the wrong side of the road must use more care and keep a better look-out than if he is on the proper part of the road.(e) 144. Tramcars. — The general rule of the road suffers another exception in the case of tramway cars. Tramway cars must be treated as if they were permanent obstruc- tions. (/) " When a carriage is coming up behind a tramway car, and the car stops, the driver of the other vehicle shall pass upon the left hand side. That is the opposite of the old rule. ... If vehicles were to pass a car on the right hand side there would be very great danger of their coming into (a) Per Lord Justice-Clerk IMoncreifif in Ramsay v. Thomson cO Sons, 1881, 9 R. 140, 145. (6) Turhy v. Thomas, 1837, 8 C. and P. 103. (c) Turley, cit. ; Finerjan v. L. .£• N.-W. By. Co , 1889, 53 J.P., 663, before Lord Chief-Justice Coleridge. (fZ) Chaplin, cit. ; Clay v. Wood, 1803, 5 E.'^p. 44 ; LJoijd v. Ojlehy, 1859, 5 C.B., N.S. 667. (e) Pluckwdl V. Wilson, 1832, 5 C. and P. 375. (/) Lord Craighill in Ramsay, cit. TRACTION ENGINES. 179 collision with another car coming the opposite way."(a) Where a vehicle is legitimately stopped on tramway rails, the driver of the car commg immediately behind it must stop also, and if injury be occasioned by his not doing so the tramway company is liable. (6) The promoters or lessees of tramway companies are, by the General Tramway Act, 1870,(c) answerable for all accidents, damages, or injuries happening through their act or default, or of any person in their employment, by reason or in consequence of any of their works or carriages, but the Act does not enlarge their common law liabilities. Thus, where a steam car, without negligence on the part of its driver, caused a horse to take fright and injured it, the company Avere not held liable. (cZ) 145. Traction Engines — The legislature has, from con- siderations of public safety, introduced certain regulations (e) for the construction of traction engines, and for their conveyance along public roads ; and persons who use these vehicles are liable for injuries to horses, &c., if they fail to use the precautions prescribed by statute or local authorities. Those applicable to the safety of horses and those using them are : — That, as far as practicable, they shall consume their own smoke ;(/) that road authorities may make bye-laws as to the hours during which these engines may pass over roads ;(26. (b) Ibid., cit. p. 529. (c) Ibid., cit. p. 542. (d) See hackney coachmen as servants of proprietor, § 156. (c) Joel V. Morrison, 1834, 6 C. and P. 501. (/) Parke, B., in Joel, cit. (y) Sleath v, Wilson, 1839, 9 C. and P. 607. 1»» EFFECT OF MASTERS ORDERS. "work with it is done and drive it on his own purposes, the master is not liable, (a) Thus, a carman, whose duty it was to deliver wine and bring back empty bottles to his master's warehouse, was induced to turn aside from the direct road to drive a clerk home. The plaintiff was knocked down by the cart when they were about two miles out of the way, and the master was not found liable. (&) The deviations, however, which will divest the master of liability must be such as to make them separate journeys, and in all such cases this is a question of degree, (c) Thus, a contractor's servant, against express orders not to leave his horse or to go home for his dinner, took his master's horse and cart to his home, a quarter of a mile away, and left it unattended. It bolted and caused injury, and it was held that a jury were justified in finding the driver as acting within the scope of his employ- ment. (cZ) If a servant, however, deviates materially from his master's employment, and on returning to the course of it an accident happens, if the return to the master's employment is established, the master is liable, but not if the servant is on his own errand, (e) Nor is a master liable if his servant, Avithout his authority, rides some one else's horse and injury ensue. (/) 154. Effect of Master's Orders.(^) — General orders by the master to a coachman not to drive when he is drunk,(A.) or not to drive too fast,(i) or not to leave his van unattended,(^') or not to obstruct other vehicles, (A;) will not free the master (a) Mitchell V. CrasweUer, 1853, 22 L..T., C.P. 100. (6) Storey v. Ashton, 1869, L.R. 4 Q.B. 476. (c) Cockburn, C.J., in Storey, overruling Erskine, J., in Sleuth v. Wilson, sup., contra. (d) Whatman v. Pearson, 1868, L.R. 3 CT. 422. (c) Ratjnev v. Mitchell, 1877, 2 C.P.D. 357. (/) Goodman v. Kcnncll, 1827, 3 C. and P. 167, (g) See on this subject Fraser, M. and S. 282. (/() Willes, J., in Limpns v. Gen. Omnibus Co., 1862, 1 H. and C. 526, 539. (i) Cresswell, J., in Broivn v. Copley, 1844, 7 M. and G. 558, 566. (j) Whatman v. Pearson, 1808, L.R. 3 C.P. 422. (k) Livipits, cit. RELA.TIONSHIP OF MASTER AND SERVANT. 189 from liability if wliat is done is witliin tlie general scope of the servant's employment. A servant, when doing what he is either expressl}^ or tacitly authorised to do b}^ his master, has a right to use his own judgment and skill, and even in some cases take a wrong way of doing a thing and the master must trust to it. But if a master has expressly forbidden a particular act to be done at all, there is no ground for attach- ing hability to him. (a) 155. The Relationship of Master and Servant must exist to render the Master Liable. — When the parties are not in the relation of master and servant at the time of the injury, the master is not liable for injury caused by his servant. Thus, a master was not liable where the servant had his master's permission to go to a fair and use his horse and gig for his OAvn pleasure ;(6) nor where the master had allowed his servant to work for a third party whose control he was under when the injury happened.(c) In another case, a driver of a coach was killed by a heap of lime negligently left unprotected on the road. The proprietor of the house had contracted with builders to make repairs on it, and the builders sub-contracted for the plaster-work with the plasterer, who left the heap of lime unfenced. An action was brought against the proprietor, builder, and plasterer, and it was held that liability only rested against the plasterer. (c?) Again, if a man sends his servant a message and he meets a friend who lends him his horse to ride, and an injmy happens, the master is not liable ; but if the master authorise the use of the horse, he is liable, (e) The relationship may be proved by general evidence infer- (a) Fraser v. Younger ss Colliery Co., 1877, L.R. 2 C.P.D. 205-208. (d) M'Laen v. Russell, 1850, 12 D. 887. (c) Goodnum v. Kennell, 1827, 3 C. and P. 167. 190 RELATIONSHIP OF MASTER AND SERVANT. ring its existence, as — e.g., the occasional or frequent use of the master's gig by the servant, (a) The contract of service itself may afford evidence, or the periods of payment of wages, or the fact of special agency for a particular business ; or the intervention of the authority of a contractor, or assumption of control of driving by a third party. But these are not conclusive, the true test in all cases being whether the alleged master had or had not direct or implied control over the servant's actions when the injury occurs ; whether the ser- vant received his wages from the master and could be removed by him for misconduct, and was bound to obey his orders. (6) If one hire a carriage and horses and the owner orders his own servant to drive them, the owner is responsible for his servant's negligence ;(c) and where the owner of a carriage hires horses and a driver by the day, the jobmaster is liable for the driver's negligence ; {d) and it makes no difference that the owner of the carriage has always been driven by the same driver, he being the only coachman employed by him ; or that he was paid a fixed sum for each drive, or that he wore his livery. (e) If two persons hire a carriage, each is jointly liable for the damage caused by either, as they are joint possessors at the time ; but if it be hired by one only, the hirer and not the passenger is liable ; (/) and to make a third party liable for the negligence of a driver, the relation of master and servant must exist between th.em..{g) Again, when the lessor and the servant of the owner of a hired horse and carriage drive together, if the lessor might have controlled the («) Patten v. Rea, 1857, 2 C.B., N.S. 606. (6) Parke, B., in Quarman v. Burnett, 1840, 6 M. and W. 499 ; Shiclls v. E. cfc O. Ry. Co., 1856, 18 D. 1199 ; and Lord Gilford in Stephen v. Thurso Police Com- missioners, 1876, 3 R. 535. (c) Smith V. Lmvrence, 1828, 2 M. and Ey. 1 ; Samviel v. Wright, 1805, 5 Esp. 263. (fZ) Smith, cit. (e) Quarman, cit., which decided this point left open in Laugher v. Pointer, 1826, 5 13. and C. 547. (/) Davey v. Chamberlain, 1802, 4 Esp. 229. {g) Moffat V. Bateman, 1869, L.R. 3 P.C. App. 115 ; see also Martin v. ITrtrrfs, 1887, 14 R. 814. LIABILITY OF MASTER TO HIS SERVANT. 191 servant and failed to do so, he is liable.(a) Questions of this sort are purely jury questions — "no satisfactory line can be drawn at which, as a matter of law, the general owner of a carriage, or rather the general employer of a driver ceases to be responsible and the temporary hirer becomes so. (6) 156. Cab-Driver is the Servant of the Proprietor. — Under the General Police Act, hackney carriage drivers are so far regarded as the servants of the proprietors that pro- vision is made for the recovery of damage done by the driver from the proprietor ;(c) and generally, at common law, the proprietor of a public vehicle is liable for personal injury caused by the negligence of the driver,(c?) even though the injury occur during a slight deviation on the driver's account ; (e) but the presumption of relationship in such a case yields to proof of the contrary. (/) 5. Liability of Master to his Servant. 157. General Liability. — A servant on entering his master's employment is considered as contemplating and taking the chance of all ordinary risks properly incident to the particular employment in which he engages. The master is bound to take all reasonable precautions which ordinary prudence would suggest, but is not an insurer against all risks. (^) Thus, a butcher's servant, ordered by his master to drive his van, alleged that an accident occurred owing to the master's failure to see that the van was in a proper (a) M'Lauf/hlin v. Pryor, 1842, 4 M. and G., 48 ; Gordon v. Roll, 1849, 4 Ex. 365. (b) Lord Abinger in Brady v. Giles, 1835, 1 M. and Rob. 494. (c) 25 & 26 Vict. c. 101, § 303 ; see also § 127. (d) Poides V. Buler,lS56, 25 L.J., Q.B. 331; Foider v. Lock; 1872, L.R. 7 C.P. 272. (e) Venabks v. Smith, 1877, 2 Q.B.D. 279 ; see also § 153. (/) Kinyv. Spur, 1881, L.R. 8 Q.B.D. 104, 108. {g) Frascr, M. and S. 175. 192 LIABILITY OF MASTER TO HIS SERVANT. State of repair and not overloaded, but it was not alleged that tlie master knew of the defect. It was held that the action was not maintainable, (ct) Lord Abinger in that case observed: — "The mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself ... In fact, to allow this sort of action to prevail would be an encouragement to the ser- vant to omit that diligence and caution which he is in duty bound to exercise on behalf of his master to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, wliile they protect the master, are a much better security against any injury the servant may sustain by the negligence of others engaged under the same master than any recourse against his master for damages could possibly afford." Nor is the master liable if the servant is in full knowledge of the risk he encounters, or neglects to take proper precautions for his own safety. (6) And where the master promises to remove the danger, and induces the servant to continue working in face of the danger, it is a question of circumstances whether the servant can or cannot recover ;(c) but where a horse, alleged to be dangerous and unfit for work, was supphed to a servant who, induced by the master's promises to procure a horse fit for its work, to continue working it, was injured, Lord Justice-Clerk Inglis observed : — " If a servant, in the face of manifest danger chooses to go on wuth his work, he does so at his own risk, and not at the risk of his master. The averments of the pursuer as to the condition of the horse are such as if true would have entitled him to refuse to continue working; and I cannot, in such circumstances, allow the servant to say to his master, ' I went on at your (a) Priestly v. Fowler, 1S37, 3 M. and W. 1 ; liilci/ v. Baxendalc, 1S61, 30 L.J. Ex. 87. (b) See cases cited in § 164. (c) Uolmes v. Clarl:e, 1862, 31 L.J. Ex. 356; see also § 164. FELLOW-SERVANTS CAUSING INJURY. 193 risk.' " («) The master is not liable if there is contributory negligence on the part of the servant,(?)) nor if the servant is injured when acting clearl}^ outwith his employment, even under the order of the master ;(c) but the master is liable if the injury is clearly the result of an act of negligence on his part, the servant being in such a case in the same position as a third party, both as regards the claim and the onus of proof ;(fZ) and this holds when the servant is so injured by a danger which was not obvious, or when the risk is not incidental to his employment, (e) 158. Fellow-Servants Causing Injury. — One of the risks a servant runs in contracting service with his master is the negligence of fellow-servants. (/) Accordingly the master is not liable for injuries to a servant caused by a fellow-servant, provided he has taken reasonable care to provide competent servants ; still less when the injured servant is only casually assisting the master's other servants. ((/) This relation of fellow-servant must be clearly established to exempt the master from liability, and it has been held that in an action to recover damages for injury caused by the negligence of the defender's servant, the defence of common employment is not applicable, unless the injured person and the servant whose negligence caused the injury were not only engaged in a common employment, but were in the service of a common master.(^-) Again, a man was engaged in deliver- ing his master's cattle to a railway company for carriage, and (a) Crichton v. Keir, 1863, 1 M. 407, 411. (h) See § 161. (c) Sutherland v. M. Ry. Co. 1857, 19 D. 1004 ; M'Nav/jhton v. Cal. Hy. Co , 1858, 21 D. 160. (d) See § 150. (e) Fraser, M. and S. 187, 188. (/) Lord Cranworth in Bartonshill Coal Co. v. Reid, 1856, 3 M'Q. 266 ; Alder- son, B., in Hutchinson v. Y. N. A B. Ry. Co., 1850, 19 L..T., Ex. 296. (fj) Erie, C. J., in Potter v. Faulkener, 1861, 31 L.J., Q.B. 30. (A) Johnson v. Lindsay [1891] A.C. 371 (over-ruling Woodhead v. Gartncss Iron Co., and disapproving Macguire v. Russell, and explaining Lord Cairns in Wilson V. Merry). O 194' FELLOW-SERVANTS CAUSING INJURY. was being assisted by the company's servants in trucking them, when, through the fault of the company's servants, a train struck the truck and injured the driver of the cattle. The company pleaded in defence to an action by the injured man that he was a volunteer in their service for the time ; the defence was repelled, and it was held that the railway company were liable in damages. (ct) But if the master himself is acting as fellow-servant, he is answerable for injury caused to his servant, because a servant is entitled to expect from his master " the care and attention which the superior position and presumable sense of duty of the latter ought to command." (6) The Employers Liability Act, 1880, (c) while giving a workman the same right of action as a third party against his master, for injuries sustained while in his service, by reason of deficiency of plant, or negligence, or improper rules, provides that the master is no longer to be allowed to plead that the negligence causing the accident was the negligence of a fellow-servant, if the person to blame was a foreman or other person exercising superintendence, or if the person injured was at the time under the orders of another workman, and the injury was due to his having obeyed that person's orders. (cZ) Under this statute horses have been held " plant," (e) and an injured party must be able to show that the horse which caused him injury was defective and unfit for use ; but if there be mere surmise upon this point, the pursuer's onus is not discharged.(/) Where a company are necessarily in the knowledge that one of their horses used by their employees is unsafe, they are liable if they negligently permit it to be used, and any one of the employees is injured thereby. (f/) It has also been (a) Wylliev. Cal. Ry. Co., 1871, 9 M. 463 ; see also Colder v. Cal. Ry. Co., 1S71, 9 M. 833. (b) Croinpton, J., in Aslncorth v. Stunning, 1861, 30 L.J., Q.B. 183. (c) 43 & 44 Vict. 0. 42, §§ 1, 2. id) Ibid. §§ 1, 2. (c) JIaston V. £d. Tram. Co., 1887, 14 R. 621 ; Frascr v. Hood, 1887, 15 R. 178 ; Yarmouth v. France, 1887, 19 Q.B.D. 647. (/) M'Farlanc v. Thomson, 1884, 12 R. 232. (f/) Huston, cit. PROOF OF NEGLIGENCE. 195 observed that the employer is answerable for any defect in the condition of " plant " hired for the day,(a) but in such a case he has relief against the owner unless the defect was undiscoverable by any ordinary or reasonable means of enquiry and examination. If there be any improper system or rules for the management of " plant," they will infer negligence against the master, and if a horse be knoAvn to be dangerous, and this fact be concealed from an injured work- man, the master is liable. (As to the bearing of this Act upon the pleas of contributory negligence and volenti non Jit injuria, see § 164.) 159. Proof of Negligence. — To make out a case of liability for negligence the Court or jury must be satisfied — not only that there was fault on the part of the defenders ; but also, that the fault Avas the natural or proximate cause of the injury. (6) The fault complained of must be distinctly made out and not left to mere conjecture. " A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendants clearly would not justify the judge in leaving the case to the jury. "(c) There must be evidence upon which they might reasonably and proj^erly conclude that there was negligence. Where the evidence is equally consistent with either view — with the existence or non- existence of negligence — it is not competent to the judge to leave the matter to the jury. Thus, a plaintiff attended a sale of horses at the defendant's sale-yard. In order to show the animal's pace, a servant of the defendant led it with a halter between a blank wall and a row of spectators, there being no barrier to protect buyers from injury. Another servant of the defendant struck the horse Avith a (a) Jones v. Burford, 1884, 1 T.L.R. 137. \b) § 170. (c) Williams, J., in Toorney v. L. B. 6i S. C. Ry. Co., 1857, 3 C.B., N.S. 146; Cotton V. Wood, 1860, 8 C.B., N.S. 568 ; Cox v. Burbidrjc, 1863, 13 C.B., N.S. 430, child kicked. 196 PROOF OF NEGLIGENCE. whip, and the animal SAverved round, and kicked and injured the plaintiff. It was proved a customary thing for a man to be stationed with a whip at the particular point where the servant was ; but there was no evidence as to the kind of blow given, nor the character of the horse, nor how it was being led, nor that protecting barriers were customary in public horse sale-yards. It was held there was no evidence of negligence to go to a jury.(a) There are certain cases where the mere occurrence of an event is j^Wma /ac^e evidence of fault — e.g., where a public vehicle breaks down.(6) In such cases, res ipsa loquitur ; the onus is shifted ; and the defender has to show that he was free from blame ; and if a defender can prove that the injury was not preventable by any care or skill, he will not be liable, (c) (a) Ahhot V. Frectruin, 1876, 35 L.T., N.S. 783. (6) Lyon v. Lamb, 1838, 16 S. 1188 ; see also Byrne v. Boadle, 1863,f33_L.J^, Ex. 13 ; Kearney v. L. B. & S. C. Ry. Co., 1871, L.E. 6 Q.B.«759 ; dfacaulay V. Buist, 1846, 9 D. 245. (c) Christie v. Griggs, 1809, 2 Camp. 79. CHAPTER VII. DEFENCES TO ACTIONS OF DAMAGES FOR INJURY TO HORSES AND CAUSED BY THEM. Inevitable Accident, 160. Contributory Negligence, 161-163. Volenti non fit injuria, 164. Mora, 165, Trespass, 166. [Remoteness, see Chap. YIIL, § 170.] 160. Inevitable Accident. — A defender is entitled to absolvitor in an action by one personally injured by him, or one for wlioni he is responsible, if he can show that the inj\ny was not due to any culpa on his part ; and, in all cases where there is an onus of proof on the defender to show that the injury Avas not due to his fault or negligence, inevitable accident is a good defence to an action of damages. To establish a defence of inevi- table accident a defender must, in the first place, dis- prove allegations of negligence, and show that the occurence was due to natural causes beyond his control, or that the event was so unlikely to occur that it could not reasonably have been anticipated, (a) The event need not be unique, (6) nor is it necessary that it should never have occurred before, (c) Thus, it will be sufficient for one not otherwise in fault to show that a horse bolted from being frightened by thunder or lightning, or some unforeseen cause ; {d) or that it bolted from being whipped (a) Nitro-phospliatc, d-c, Co. v. L. ^ St. K. Docks Co., 1878, L.R. 9 Ch. D. 503 ; Nichols V. Marshland, 1876, L.R. 2 E.\-. D. 1. (6) Piric V. Magistrates of Aberdeen, 1871, 9 M. 412. (c) j\' itro-phosphatc, d-c, Co., cit. (d) Plucku-ell V. Wilson, 1832, 5 C. and P. 375. 197 198 INEVITABLE ACCIDENT. by some other person ; (a) or that a fog was so thick that the coachman could not keep the road ; (h) or from fright caused by another vehicle running into his own ; (c) or to a misunderstanding between a driver who has called out and the party injured by the van he was driving. (fZ) Again, it has been held an inevitable accident if a horse from inherent vice(e) suddenly become restive, and the driver can prove that there was no fault in his want of control over it ; mere restiveness is not prima facie evi- dence of negligence. (/) Also, where a carriage horse suddenly bolted, notwithstanding the coachman's utmost efforts to control it, swerved on the footpath, and injured a passenger, it was held there was no evidence of fault to go to the jury, even although it was proved that the horse cast a shoe shortly after bolting, and that the driver gave no warning. (^) Thus also, damage caused by a horse's takinsf an obstinate fit of backing has been held an accident, (/i) Again, it was held to be an accident where a horse, which had strayed into a wheat field, and was driven back, while leaping a fence fell on a stake and was killed, there being proof that the servant who drove it away did not intend to injure it.(i) In a somewhat similar case, a stallion broke out of a field in pursuit of some mares, and entered the farm-close of a neighbouring farm, and a farm servant beat it with a stake in order to drive it away ; the horse died from a wound alleged to have been inflicted by a nail in the stake, and it was held that the servant was not liable (a) Gibbons v. Pippci; 1 Loi-d iJaymond, 38. (h) Best, C.J., in Crofts v. Waterhouse, 1825, 3 Bing. 319. (c) Wakeman v. Robinson, 1823, 1 Bing. 213 ; Goodman v. Taylor, 1832, 5 C. and P. 410, (d) Dochcrty v. Watson, 1884, 21 S.L.R. 449. (e) See § 109. {/) Hammach v. White, 18C2, 11 C.B., N.S. 588. (g) Manzoni v. Douglas, 1880, L.R. 6 Q.B.D. 145 ; see also Holmes v. Mather, 1875, L.R. 10 E.x. 2fil. (A) Pypcr V. Thomson, 1843, 5 D. 498. {i) Ilerriot v. Unthank; 1827, 6 S. 211. CONTRIBUTORY NEGLIGENCE GENERALLY. 199 for the value of the horse, (a) But the least proof of negli- gence will upset the theory of accident, as — e.g., the failure to examine the axles of a public coach before the journey, or taking a horse known to be restive to a public place. If, however, in leading animals, such as bulls or stallions, along the public thoroughfares, every reasonable precaution is taken, the fact that damage is done gives no right of action. (6) 161. Contributory Negligence generally. — When dam- age has been proved to have been occasioned by negligence, the party causing it will be absolved from blame if he can show that the injury has been contributed to by the negli- gence of the injured party ; (c) but his contribution to the injury must be material. Thus, a plaintiff who had left his ass tethered in a highway, and, therefore, unable to get out of the way of the defendant's waggon, which was going smartly along the hiofhwav, and ran into it, Avas found entitled to recover ; the charge given to the jury was held correct upon appeal — viz., " that though the act of the plaintiff in leaving the donkey on the highway so fettered . . . might be illegal, still if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the waggon, the action was maintainable against the defendant." (cZ) Again, where a cabman attempted to lead his horse over some rubbish wrongfouslv left in a lane, he was not found disentitled to recover because he had at some hazard created by the defenders brought his horse out of the stable, (e) The principle of contributory negligence is thus explained by Lord President Inglis : — " When an event is brought about directly by the culpa of two persons, whether joint or several, where the culpa of each has contributed to produce the event, and the event would not have been produced but for the (a) Cumming v. TurnbuU, 1840, 2 D. 579. (b) Harpers v. G. N. Ry. Co., 1886, 13 K. 1139 ; PldlUps v. Nicoll, 1884, 11 R. 592 ; see also § 137. (c) Greenland v. Chaplin, 1850, 5 Ex. 243. (d) Davies v. Alann, 1842, 10 M. and W. 546. (c) Clayards v. DUkick, 1848, 12 Q.B. 439. 200 CONTRIBUTORY NEGLIGENCE GENERALLY. culpa of both, there can be no claim as between these per- sons for reparation for injury flowing from that event ; " (a) and Lord Fitzgerald thus defines it : — " Contributory negli- gence seems to me to consist in the absence of that ordinary care which a sentient being ought reasonably to have taken for his own safety, and Avhich, had it been exercised, Avould have enabled him to avoid the injury of Avhich he complains, or the doing of some act which he ought not to have done, and but for which the accident would not have occurred." (h) What amounts to ordinary care is purely a jury question ; so is contributory negligence, and each case depends on its own circumstances, (c) Thus, a person crossing a street, (cZ) or leaving a tramcar, is bound to look about him to see that he does not go in front of a vehicle, (e) and the failure to do so amounts to contributory negligence. (/) In regard to what amount of contributory negligence is sufficient to bar a claim of damages at the instance of an injured party or his repre- sentatives, the rule in Radley v. L. & K.-W. Ry. Go. is authoritative, {g) Lord Penzance in that case observed : — " The first proposition is a general one to this effect, that the plaintiff in an action for negligence cannot succeed if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident. But there is another proposition equally well established, and it is a qualification upon the first — namely, that although the plaintiff" may have been guilty of negligence, and although this negligence may in fact have contributed to the accident, 3^et if the defendant could, in the (a) 3I'Naughton v. Caledonian Railway Company, 1858, 21 D. 160, 163. (6) V/akelin v. L. & S.-W. Ry. Co., 1886, L.R. 12 App. Ca. 41, 51 ; see also Tuff V. Warman, 27 L.J., C.P. 322. (c) Greenland, cit. ; Clayards, cit. {d) Coleridge, J., in Woolf v. Beard, 1838, 8 C. and P. 373. (e) Ramsay v. Thomson, 1881, 9 R. 140; Jardine v. Stoncfield Laundry Com- pany, 1887, 14 R. 839. (/) But see as to aged persons. Lord Justice-Clerk Moncreiff in Clerk v. Pctric, 1879, 6 R. 1076 ; and pupil children, see § 162. {g) Radley v. L. d- N.-W. Ry. Co., 1876, L.R. 1 App. Ca. 754, 759; see also cases of Cotton, Haiokins, Williams, Siud Boss, cited § 142. CONTRIBUTORY NEGLIGENCE OF PUPIL CHILDREN. 201 result by the exercise of ordinary care and diligence, have avoided the mischief which haj^pened, the plaintiffs negli- gence "will not excuse him " — i.e., the defendant. Tlius, where a tramway driver, going down an inchne whistled so that a cab, which was standing in the way, might get out of the way, but nevertheless ran into it, and injured it, it Avas held that there was no contributory negligence on the part of the cabman, who did not drive off immediately, but was waiting to pick up a passenger. (a) Again, Avhere the negli- gence of the injurer consisted in his servant's leaving a horse and cart unattended in the street, and it would not neces- sarily have been followed by damage had there not been great negligence on the part of the child injured by amusing itself with the Avheel, Lord Denman observed : — " The most blameable carelessness of his servant having tempted the child, he ought not to reproach the child with yielding to that temptation. He has been the real and only cause of the mischief ; he has been deficient in ordinary care ; the child, acting Avithout prudence or thought, has, hoAvever, shoAvn these qualities in as great a degree as he could be expected to possess them. His misconduct bears no propor- tion to that of the defendant Avho produced it." (b) Where negligence of the injured party subsequent to the accident aggravates the amount of damage, it is pleadable in mitiga- tion of damage, (c) (As to the bearing of the Emplo3-ers Liability Act on this plea, see § 1G4.) 162. Contributory Negligence of Pupil Children. — Young children have as much right to be on the public street and highways as adults ; and their disposition to get in front of vehicles is one of the risks drivers must specially guard against. (f?) Thus, where two children, one three, and the other five, years of age, were driven over in a crowded street (a) M'Dcrmaid v. Edinburgh Street Tramicays Cumpany, 1884, 12 R. 15. {b) Lynch V. Nurdin, 1841, 1 Q.E. 29, 37. (c) Moffat V. Park; 1887, 5 R. 13. (rf) Auld V. Ariieij, 1881, 8 R. 495 ; see also § 142. 202 PROOF OF CONTRIBUTORY NEGLIGENCE. in Glasgow, the Court held it not to be a good defence that the father had contributed to the accident by allowing them to be there unprotected. (a) If, however, a child rushes suddenly in front of an advancing vehicle, and it is impos- sible for the driver to pull up, the driver will be free.(6) The question as to what age a child can be guilty of contributory negligence depends on the negligence alleged. Thus, where a child was killed on a private Ime of railway by a passing engine. Lord President Inglis observed : — " To allow a child of two and a-half years of age to wander about in so danger- ous a place, without anyone to take charge of it, showed great carelessness on the part of the parents," and the father was not found entitled to recover for its death.(c) Again, Avhere a child, four years old, was injured while meddling with a dangerous machine, negligently left unprotected, Lord Young said : — " There can be no contributory negli- gence by a child of four years. "(J) A child is only guilty of contributory negligence when it neglects the care that is usually to be expected from children of its age.((^) 163. Proof of Contributory Negligence. — Proof of con- tributory negligence is subject to the same rules as proof of negligence. (/ ) What a defender has to prove is that the pursuer has been negligent. If he succeeds, the pursuer will not recover ; but if it is clear that the defender had been (rt) iMartin v. Wards, 1887, 14 R. 814. (b) Frasers v. Edinburgh Street Tramimys Co., 1882, 10 R. 264. In this case a new trial was granted, on the ground of the jury having ignored evidence of con- tributory negligence of the boy, who was six years old, rushing in front of a tram- car. It resulted in a verdict for the defenders, on the ground of no fault, the speed not being excessive. (c) Morran v. Waddcll, 1883, 11 R. 44 ; Grant v. Caledonian Ry. Co., 1870, 9 M. 258 ; see also Davidson v. Monklands Ily. Co., 1855, 17 D. 1038 ; Greer v. Stirlingshire Road Trustees, 1882, 9 R. 1069, where defenders were found liable for the death of an infant of twenty-two months old, who, accompanied by a child of three and a-half years, crept through an insufhcient fence, and was di'owned. ((/) M'Grcgor v. Ross, 1883, 10 R. 725, 731 ; see also Campbell v. Ord, 1873, 1 R. 149. (c) Lynch v. Nurdin, 1841, 1 Q.B. 29. (/) See § 159. VOLENTI NON FIT INJURIA. 203 negligent, and merely doubtful if the pursuer has, the pur- suer will be entitled to recover. The defence of joint negligence must be as clearly established as the ground of action requires to be.(«) 164. Volenti non fit Injuria — It is also a good defence "where fault or negligence is established, to prove that the injured party voluntarily chose to run the risk. Wherever one is not physically constrained, where he can, at his option, do a thing or not, and he does it, this maxim applies.(6) It differs from the plea of contributory negligence in respect of its being a matter of voluntary acceptance of a known risk, not mere carelessness in presence of danger, (c) Mere know- ledge of the risk does not involve consent to it. " The ques- tion in each case must be, not simply whether the plaintiff knew of the risk, but whether the circumstances are such as necessarily to lead to the conclusion that the whole risk was voluntarily incurred by the plaintiff'. "(^0 1'^^® mere fact that a workman undertakes, or continues, in a dangerous employment, with full knowledge and understanding of the damag^e, is not conclusive to show that he has undertaken the risk so as to make the maxim, volenti non Jit injuria, applicable in the case of injury. The question, whether he has so undertaken the risk, is one of fact and not of law. And this is so both at common law and in cases arising under the Employers Liability Act, 1880.(e) "The ques- tion which has most frequently to be considered, is not whether ho voluntarily and rashly exposed himself to injury, but whether he agreed that, if injury should befall him, the risk was to be his and not his master's. "(/) Thus, a servant was not allowed to recover damages against a railway com- (rt) Lord Neaves in M^Miu-tin v. Ilannay, 1S72, 10 M. 411. (6) Member!/ v. G. W. Ihj. Co., 1889, L.K. 14 App. Ca. 179. (c) Chief-Justice Cockburn and Lord Justice Mellish in Woodlcy v. J/. D. Rij. Co., 1877, L.R. 2 Ex. D. 384. (d) Justice Lindley in Yarmouth v. France, 1887, 19 Q.B.D. 647, 660. (e) Smith V. IJakcr [1891] A.C. 325. (/) Lord Watson in Smith, cit. p. 355. 204 VOLENTI NON FIT INJURIA. pany for furnishing him with a horse unfit for Avork, on the ground that he was aware of the danger of working with it.(a) In another case, a plaintiff was employed for a wharfinger, who, for the purposes of his business, employed horses and carts, the plaintitf's duty being to drive the horses and load and unload the carts. One of the horses supplied was so vicious as to be unfit to be driven, even by a careful driver. The plaintiff objected to drive this horse, and told the foreman that it was unfit to be driven, to which the foreman replied that be must continue to drive it, and that his employer would be resjDonsible if an}^ accident happened. The plaintiff continued to drive the horse, and whilst sitting in his proper place was kicked by it, and his leg was broken. It was held, inter alia, that the horse was "plant," under the Em2)loyers Liabihty Act, and that upon the facts a jury might find the defendant to be liable, for there was evi- dence of negligence on the part of his foreman, and that the circumstances did not show conclusively that the risk was voluntarily incurred by the plaintiff.(6) Again, a stable boy was ordered by his master to tie up an entire horse in its stable, and was bitten by it. He raised an action against his master, averring that the horse was vicious and dangerous, that it had previously bitten other people, and that he had been five years in his master's employment as a carter, and five months as stable boy. The action was held irrelevant, on the ground that the stable boy, of his own choice, con- tinued to work in face of the danger, (c) In another case, under very similar circumstances, the question of known danger was not raised, the evidence turning on whether or not the horse of a tramway company was a dangerous animal. (((5) Again, where an injured carter sued his employer (a) Crichlon v. Keir, 1863, 1 M. 407. (h) Yarmouth v. France, cit. (c) Fraser v. Hood, 1887, 15 R. 178 (where it %v.as held that horses are "plant," under the Employers Liability Act) ; see also lliomas v. Qtiartermainc, 1887, L.R. 18 Q.B.D. 657. ((/) Ilaston V. Ed'mhur'jh JStrcrt 2'ramicays Co., 1887, 14 R. 621. MOB A. 205 as blameworthy, in having a horse in his possession, for use by his carters, not broken to steam engines, the jury found that he " knew of its condition and character, and the risk he ran in taking charge of it," and accordingly, on the instructions of Lord Young, who presided at the trial, gave their verdict for the defenders, which Avas upheld in an application for a new trial, (a) The effect of the Employers Liability Act (5) upon the defences of the master, when sued by a workman, is thus stated by Justice Smith, concurred in by Justice Matthew: — " The workman, when he sues his master for any of the five matters designated in it, shall be in the position of one of the public suing, and shall not be in the position a servant theretofore was when he sued his master ; in other Avords, that the master shall have all the defences he theretofore had against any one of the public suing him, but shall not have the special defences he theretofore had when sued by his ser- vant ; . . . the defence of contributory negligence is still left to the employer, but the defence of common employment, and also the defence that the servant had contracted to take uj)on himself the known risks attending upon the engage- ment, are taken away from him when sued by a workman under the Act. . . . The Legislature, while stating for the employer the two defences above-mentioned, has given him a statutory defence under § 2, sub.-sec. 8, which, there- tofore, did not exist. It is this — the employer, when sued for a defect, ways, or machinery, may set up that the ser- vant knew of the defect, and did not communicate it to him (the employer), or to some other person superior to himself in the service of the employer, "(c) 165. Mora A pursuer must make his claim for repara- tion timeously. Thus, where a claim of damages for personal (a) Wilson v, Boyle, 1889, 17 K. 62. (6) 43 & 44 Vict. c. 42. (c) Weblin v. Ballard, 1886, 17 Q.B.D. 122. 20G TRESPASS. injury was unduly postponed, tbc Court said : — " The word r)iora suggests mere delay, but I am free to admit that in the ordinary case delay of itself is not sufficient to establish a plea of 01107X0, and that abandonment must be implied in the delay. But when the claim is one which requires constitu- tion . . , the plea of inora will be justified by delay for a certain length of time in constituting the claim. ... It is unfair that a man should be allowed to keep back a claim of this kind until it suits him to bring it forward, when all means of rebutting it may have been lost. (a) 166. Trespass. — Where the injured party is trespassing where he has no business to go, and is injured, he cannot recover, as he is the author of his own wrong, and this applies also to children. (6) When a party's horses or cattle break in among the crop or stock of a neighbour, the ser- vants of the latter are entitled and bound to use ordinary and reasonable compulsion to drive them away, and if any accident happen to the animals trespassing from the means used, it is a casualty which the owner must take upon him- self.(c) (a) Cook V. N. B. Ry. Co., 1872, 10 M. 513. (6) Balfour v. Baird, 1857, 20 D. 238, see § 162. (c) Cumming v. TurnhuU, 1840, 2 D. 579 ; Herriot v. Unthanl; 1827, 6 S. 211. CHAPTER VIII. DAMAGES. Who may recover Damages, 167. Against whom Damages may be recovered, 168. What may be recovered in Breach of Contract, and Delict, 169-170. Measure of Damage where Hired Horse is injured, 171. Elements to be considered in cases of Personal Injury, 172-174. 167. Who may Recover — Where any one is injured either in person or property he has a claim of damages against the party neghgently injuring him ; but a master has no claim in Scotland against the injurer of his servant on account of loss of service ; (a) this remedy, however, is com- petent in England. Should the injured party survive for a time, his right of action, unless discharged or barred by mora, transmits to his representatives. (6) W^hen the injury causes death, the children or parents, or the husband or wife of the deceased injured party, but not his collateral relations, acquire in their oami right a claim for damages and sola- tium, (c) The parents of an illegitimate child, however, have no such claim. (cZ) Again, if an injured party receive a sum in name of damages, and grant a receipt bearing that it is " in full of all claims competent," he has no further recourse against the wrong-doer ; (e) and when one has received reparation or brought an action to judgment for a delict or (a) Allan v. Barclay, 1864, 2 M. 873. (6) Auld V. Shairp, 1874, 2 R. 191 ; Lord Adain in W{(/ht v. Burns, 1883, 11 R. 217. (c) Greenhorn v. Addic, ISo.'J, 17 D. 860 ; Eldcn v. N. B. By. Co., 1870, 8 M. 981 ; Horn v. N. B. Ry. Co., 1878, 5 R. 1055. {d) Gierke v. Carfin Coal Co., 1891, 18 R., H.L. 63 ; Weir v. Coltness Iron Co., 1889, 16 R. 614. (e) N. B. By. Co. v. Wood, 1891, 18 R., H.L. 27. 207 208 WHO MAY RECOYEr. breach of contract, he cannot agjain sue on the srround of a subsequent increase or dcYelopment of the damages arising from the same act. (a) If, however, damage be done to pro- perty and also to goods by the same act of neghgence, there is a different cause of action, and recovery of compensation for the damage to property is no bar to an action subse- quently commenced for injury to the person.(6) Lord Bramwell put the case thus : — one " cannot maintain an action for a broken arm, and subsequently for a broken rib, though he did not know of it when he commenced his first action. But if he sustained two injuries from a blow, one to his person, another to his property, as, for instance, damage to a watch, there is no doubt that he could maintain two actions in respect of the one blow."(c) Under the Employers Liability Act a workman injured by any of the five enumerated causes in § 1, or, in case of his death, his legal representatives, (cZ) has the same right of compensation and the same remedies against the employer as if he had not been a workman under the master's employ- ment, and had been a member of the public. The statute expressly excludes " domestic and menial servants."(e) In Scotland, a tramway conductor has been held entitled to the benefit of the Act ;(/) but in England an omnibus conductor engaged at daily wages, and paid daily, was held not entitled to the benefit of it.(g) A huntsman (A) and a "general garden and stable hand " have been held to be menial servants, (i) and thus not within the Act; but a dairy-maid («) Stevenson v. Pontifex, 1887, 15 R. 125. (b) Brunsden v. Humphrey, 1884, L.R. 14 Q.B.D.141. (c) Barley Main Colliery Co. v. Mitchell, 1886, L.R. 11 App. Ca. 127-144. See a strong dissent from this doctrine in Brunsden cit. by Lord Coleridge at p. 153. (rf) 43 & 44 Vict. c. 42, § 1. (c) Ibid. § 8 ; 38 & 39 Vict. c. 90, § 10. (/) Wilson V. Glasgow Tramicays Co., 1878, 5 R. 981. (fj) Morijan v. L. Gen. Omnibus Co., 1883, 12 Q.B.D. 201 ; aff. 1884, 13 Q.B.D. 832. (/,) Nicoll V. Greaves, 1864, 17 C.B., N.S. 27. (i) Johnson v. Blcnkensopp, 1841, 5 Jur. 870. AGAINST WHOM DAMAGES ARE EECOVERABLE, 209 has been held to be a " servant m husbandly," and so withm the Act. (a) 168. Against whom Damages are Recoverable. — Though a wrong-doer is Hable m damages if he injure any one, no one, with the exception of a master who is hable in certain cases for the negligence of his servant,(6) is responsible for the fault of a third party. On the death of the wrong-doer a claim of damages may be made effectual against his repre- sentatives, such a claim being of the nature of a civil debt.(c) Administrative bodies, such as royal burghs, (c?) statutory trustees, (e) . police commissioners, (/) navigation trustees,((7) corporations,(^) and other local authorities, are answerable for the neghgence of their servants, just as if the}' were those of a private individual ; and claims against them are to be met, not by the members of the board individually, but out of the funds which the board administers. Pubhc and private companies, also, are responsible for their own negligence or that of their servants. Thus, the two pro- prietors of a stage-coach were held liable, along with the driver, for his negligence in driving the coach, (i) And where a horse was killed by falling during the night into an old ironstone pit, which lay within a yard of the public highway, and was insufficiently fenced, it was held that an action lay against the judicial factor on the estate in which the pit was situated, without calling the tenant, who, for all the judicial factor knew, might have been working the minerals when the accident happened. (J) (a) Ex parte Hxirjhes, 1854, 2-3 L.J., M.C. 1.38. (b) See §§ 150-155. (c) Wight V. Burns, 1883, 11 E. 217. \d) Harris v. Mags, of Leith, 1881, 8 R. 613. (c) Mersey Docks and Harbour Board v. Gibbs, 1864, L.R. 1 H.L. 93. (/) Virtue V. Alloa Police Corns., 1873, 1 R. 235. (g) Buchanan v. Clyde Lighthouses Trs., 1884, 11 R. 531. (h) Scott V. Mayor of Manchester, 1856, 1 H. and N. 59. (i) Moreton v. Hardern, 1825, 4 B. and C. 223. 0') Mack V. Allan, 1832, 10 S. 349. P 210 WHAT MAY BE RECOVERED AS DAMAGES. All parties committing a wrong are liable sing id I in soli- dum in pecuniary reparation, (a) and there is no relief among wrong-doers.(6) If an injured party has obtained full indem- nity from any one, he cannot sue the others in a separate action ; but if he releases any without indemnity, he does not thereby lose his remedy against the rest.(c) In the case of master and servant, a servant injured by his fellow-servant may recover against him, for a person is none the less answer- able for a wrongful act because it is done by the order or authority of another, (f?) 169. What may be recovered as Damages for Breach of Contract. — It depends whether an action is founded on breach of contract or on delict Avhat may be recovered. Though the general rule is that consequential or remote damages are never allowed, whatever be the ground of the action, yet the application of this rule suffers a more strict interpretation in contract than in delict. Direct damage only, and the expenses of obtaining reparation, are all that can be recovered under a breach of contract, where there has been no fraud ; but, if there has been fraud, certain losses are considered as direct which would have been regarded as too remote, had there been no fraud ;(e) and, even in that case, purely speculative and hypothetical sources of benefit are not allowed to be computed, on the ground of their not being the natural and proximate consequences of the loss. Therefore, where a cattle dealer fraudulently represented a cow to be free from infectious disease Avhen he knew that it was not so, and the purchaser placed it with five others which caught the disease and died, the latter was held entitled to recover as damages, in an action for fraudulent misrepresentation, the (a) Ferguson v. E. of Kinnoul, 1842, 1 Bell's App. 662 : Western Bank v. Bairds, 1862, 24 D. 859. (6) Ersk. iii. 1, 15. (c) Fcrguion, cit. See also L.J.C. Inglis in li(i. Western Bank v. Douglas, 1860, 447, 476. {(l) Mackenzie v. Goldie, 1866, 4 M. 277. See also § 150. (e) B. Pr. 33. WHAT MAY BE RECOVERED AS DAMAGES. 211 value of all the cows, (a) The same principle was applied where a cow was warranted free from disease, and both parties contem- plated its being placed with other stock.(6) But though it is illegal in England to brmg a giandered horse into a public market, there is nothing illegal in the simple sale of it ; therefore one who sold a giandered horse without a warranty, and without fraudulent misrepresentation, was held not responsible for disease communicated to other horses belong- ing to the purchaser in the stable to which he removed it.(c) Again, the pretium affectionis or fancy value placed on a horse by its owner, would not be allowed in computation of its value, unless fraud were established ;(cZ) and where damages are claimed for breach of contract, nothing will be allowed except the direct loss upon the thing itself, and what would reasonably be considered as in contemplation of the parties at the time of making the contract as the natural result or reasonable consequence of a probable breach. (e) Thus in breach of sale, m the absence of more precise evidence of value, the highest price which might have been got for a horse after the day of sale, or the average value between the stipulated day of delivery and date of action, or the price at which the buyer could procure a similar one at the stipulated time of delivery, are the usual criteria for determininQ- the amount of damacres. There is no absolute rule as to market value in Scotland, and in determining the amount (/) each case is to be considered according to its own circumstances. If there have been a subsale disclosed to the seller, he will be liable for the difference between the price contracted for and the price of the intimated sub- (a) MuUctt V. 3fason, 1866, L.R 1 C.P., 559. (6) Smith V. Green, 1875, L.R. 1 C.P.D. 92. (c) Um V. Balls, 1857, 2 H. and N. 299 ; see also Ward v. Hohbs, 1878, 4 App. Ca. 13. (d) Ersk.iii. 1, 14. (e) Iladley v. Baxcndale, 1854, 9 E.x. 341 ; Kcddie v. N. B. Ry. Co., 1886, 14 R. 233 ; Elhinger, d-c. v. Armstrong, 1874, L.R. 9 Q.B., 473. (/) Dunlop V. Higgins, 1848, 6 B. App. Ca. 195. 212 WHAT MAY BE RECOVERED AS DAMAGES. sale, (a) And where the seller resells, he cannot charge the buyer with the difference between the contract price and market value, unless he sell immediately. (6) If, however, there is any special loss known to the parties which will ensue as the result of a breach of the contract, such loss will be estimated in assessing the damages, whether it be loss of profit or not.(c) So also, in the contract of hiring, where an inn-keeper contracted to provide stabling for twelve horses for a plaintiff during a particular fair, and failed to do so, it was held that damages could be recovered for injury caused to the horses by exposure to the weather while he was engaged in finding other stables for them.(cZ) Again, in the contract of carriage, the damages are usually confined to the value of the horse lost or damaged, and in estimating this, the market value at the time and place at which it ought to have been delivered is the usual test of its value, which is taken in full if the animal be killed, but in the case of injury, from this will be deducted what it will fetch in the market. (e) If there be no means of testing the market value, the real value must be ascertained as a fact by taking into consideration the circumstances which would otherwise have influenced the market price, if there had been one, such as costs of car- riage and a reasonable sum for the consignee's profit where he is a dealer in the goods. (/) Where a sender of animals brings it under the notice of the carrier that they must be in time for a certain market, or the carrier must necessarily be aware of this fact, loss of market is to be considered in estimating damages, even when caused by an accident which the carrier cannot show could not have been avoided by ordinary care and foresight on his part.(f/) (a) Bell's Pr. 31, Hadlcy, cit. ; Grchert-Borgnis v. Nucjent, ISSo, 15 Q.B.D., 85. (6) Warin