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who has the goods in his custody, as in that of lending for use, an extraordinary degree of care is demanded, and the Borrower is therefore responsible for slight negligence (c).

the Borrower

But if the Lender was not deceived, but perfectly knew As much as the quality as well as age of the Borrower, he must be sup- is capable of posed to have demanded no higher care than that of which bestowing. such a person was capable; as if a person lend a fine Horse to a raw youth, he cannot exact the same degree of management and circumspection as he would expect from a riding-master or an officer of dragoons (d).

Horse for

sale.

Where a person rides a Horse gratuitously at the Showing a Owner's request, for the purpose of showing him for sale, he is bound in so doing to use such skill as he actually possesses, or such as may be implied from his profession or situation, and he is equally liable with a Borrower for injury done to the Horse while ridden by him. In a case tried before Mr. Baron Rolfe, it appeared that the plaintiff had entrusted a Horse to the defendant, requesting him to ride it to Peckham, for the purpose of showing it for sale to a Mr. Margetson. The defendant accordingly rode the Horse to Peckham, and, for the purpose of showing it, took it into the East Surrey Race Ground, where Mr. Margetson was engaged with others playing at cricket; and there, in consequence of the slippery nature of the ground, the Horse slipped and fell several times, and in falling broke one of his knees. It was proved that the defendant was a person conversant with and skilled in Horses.

The learned Judge in summing up left it to the Jury to say whether the nature of the ground was such as to render it a matter of culpable negligence in the defendant to ride the Horse there; and told them, that under the circumstances the defendant being shown to be a person skilled in the management of Horses, was bound to take as much care of the Horse as if he had borrowed it; and that if they thought the defendant had been negligent in going upon the ground where the injury was done, or had ridden the Horse carelessly there, they ought to find for the plaintiff, which they did.

The Court of Exchequer refused a rule for a new trial applied for on the ground of misdirection. Lord Abinger, C. B., saying, "We must take the summing-up altogether;

(c) Jones on Bailments, 65. See Exod. xxii. 14, 15.

(d) Jones on Bailments, 65;

Dumoulin's Tract-De eo quod
interest, 185; Story on Bailments,
161.

A gratuitous
Bailee.

Negligence of a Bailee.

Rule as to negligence of gratuitous Bailee.

Use strictly personal.

and all it amounts to is, that the defendant was bound to use such skill and management as he really possessed. Whether he did so or not, was, as it appears to me, the proper question for the Jury."

And Mr. Baron Parke said, "The defendant was shown to be a person conversant with Horses, and was therefore bound to use such care and skill as a person conversant with Horses might reasonably be expected to use; if he did not, he was guilty of negligence.'

And Mr. Baron Rolfe said, "The distinction I intended to make between this case and that of a borrower is, that a Gratuitous bailee is only bound to exercise such skill as he possesses, whereas a Hirer or Borrower may reasonably be taken to represent to the party who lets or from whom he borrows, that he is a person of competent skill. person more skilled knows that to be dangerous which another, not so skilled as he does not, surely that makes a difference in the liability. I said I could see no difference between negligence and gross negligence—that it was the same thing with the addition of a vituperative epithet " (e).

Whether there is a distinction, and what that distinction is, if there be one, between negligence and gross negligence, is a matter of little importance; but one thing is settled, that the negligence of a gratuitous bailee, to be actionable, differs from the negligence which would be actionable in a bailee, who is not gratuitous, and the distinction appears to be that a gratuitous bailee is not liable for simple negligence, for which a borrower would be liable, but only for such negligence as he is guilty of in spite of the better skill or knowledge, which he either actually had, or undertook to have (f).

And the principle upon which he is liable is thus well laid down in Coggs v. Bernard (g): "If a man will enter upon a thing, and take the trust upon himself, and miscarries in the performance of the trust, an action will lie against him for that; though no one could have compelled him to do the thing."

In cases of mere gratuitous loan, the use is to be deemed strictly a personal favour and confined to the Borrower,

(e) Wilson v. Brett, 11 M. & W. 113. See also per Willes, J., in Grill v. General Iron Screw Colliery Co., L. R., 1 C. P. 612.

(f) 1 Smith's L. C. 8th ed. 221, 222; per Pollock, C. B., Beal v. South Devon Railway Co., 5 H. & N.

881; Austin v. Manchester Railway Co., 10 C. B. 454; Giblin v. McMullen, L. R., 2 P. C. 317.

(g) Coggs v. Bernard, 1 Smith's L. C. 8th ed. 199 et seq.; Giblin v. McMullen, L. R., 2 P. C. 317.

unless a more extensive use can be implied from other circumstances; such for instance as lending the Horse on trial. In general it may be said, in the absence of all controlling circumstances, that the use intended by the parties is the natural and ordinary use for which the thing is adapted (h).

servant.

A borrowed Horse cannot be used by a servant. Thus, Cannot be where an action of Trespass was brought for immoderately used by a riding the plaintiff's Horse, it appeared that the defendant had borrowed the animal, and that he and his servant had ridden it by turns. It was held that the licence was annexed to the person of the defendant, and could not be communicated to another (i).

If a Horse or Cart, or such other thing as may be used Must be used and delivered again, be used according to the purpose for according to which they are lent and they perish, he who owns them the lending. must bear the loss, if they perish not through default of him who borrowed them, or he made a promise at the time of delivering to redeliver them safe again ().

answerable.

But if they be used in any other manner than according Or else the to the lending, in whatever manner they may perish, if it Borrower is be not by default of the Owner, the Borrower is chargeable both in law and conscience (7). Thus, if the Borrower, instead of coming to London, for which purpose the Horse was lent, go towards Bath, or having borrowed him for a week, keep him for a month, he becomes responsible for any accident that may befal the Horse in his journey to Bath, or after the expiration of the week (m).

for return.

In regard to time, if no particular time is fixed, a reason- Where no able time must be intended, keeping in view the objects of time is fixed the bailment. If a Horse is lent for a journey, it is presumed to be a loan for the ordinary time consumed in such a journey, making proper allowance for the ordinary delays

and the ordinary objects of such a journey (»).

But where the Borrower of a Horse promised to re-deliver Redelivery it on request, and the Horse died without his default before on request. request, he was held not liable (0).

A party who borrows a Horse is bound to feed it during Borrower

(h) Story on Bailments, 161; and Lord Camoys v. Scurr, 9 C. & P. 386.

(i) Bringloe v. Morrice, 1 Mod. R. 210; S. C. 3 Salk. 271. (k) Noy's Maxims, 91. (1) Ibid.

(m) Jones on Bailments, 68;
Coggs v. Bernard, Ld. Raym. 915;
2 Ld. Raym. 909; 3 Bract. c. 2,
s. 1; 1 Smith's L. C. 8th ed. 199.
(n) Story on Bailments, 161.
(0) Williams v. Lloyd, Jones on
Bailments, 179; S. C. nom. Wil-
liams v. Hill, Palm. 518.

the Horse.

bound to feed the time of the loan (p); and if it is returned out of condition, the Borrower would probably be called upon to prove that he fed it properly, and that the falling off in condition did not arise from any neglect on his part (q). Where the Horse is exhausted and refuses his feed, he must not be ridden or driven any further (r).

Where the Horse is exhausted.

Where the Horse is killed.

Where the Horse dies from disease.

Where Borrower is answerable for damage. Bailment ended by misuser.

If a man through his own imprudence has his borrowed Horse killed, by robbers for instance, or by a ruinous House or Stable, in manifest danger of falling, coming on to his head, the Owner is entitled to the price of the Horse, but not if the House or Stable were in good condition, and fell by the violence of a sudden hurricane (8).

Where a borrowed Horse dies from disease, the Borrower is not answerable. Thus, in Williams v. Hide et Uxor. (t) the plaintiff declared that in consideration he had lent to the defendant's wife, dum sola, a Horse to be returned upon request, she promised to return it upon request, but had not done so. The defendants pleaded that, before the request, the Horse per diversos morbos in corpore suo crescentes moritur, and so they could not re-deliver it. Upon demurrer the defendants had Judgment; for, where the agreement is possible when made, but afterwards becomes impossible by the act of God, the party is for ever discharged.

A person borrowing a Horse or Carriage is answerable for any damage occasioned by negligent management, whether done by himself or another person in driving (u). The Rule is, that when there has been a misuser of the thing lent, as by its destruction or otherwise, there is an end of the bailment, and an action of Trover is maintainable for the conversion (x).

(p) Handford v. Palmer, 2 B. &
Bing. 359.

(9) Bray v. Mayne, 1 Gow, 1.
(r) Ibid.; and see Hiring Horses,
ante.

(8) Jones on Bailments, 68.
(t) Williams v. Hide et Uxor.,

Palm. 548; cited in Powel v. Salisbury, 2 Y. & J. 394.

(u) Wheatley v. Patrick, 2 M. & W. 650; and see Hiring Horses, ante.

(a) See per Pollock, C. B., Bryant v. Wardell, 2 Ex. 482.

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