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sponsible only for failing in the exercise of that degree of care which prudent persons generally manifest in keeping, caring for, and using their own property of a similar character. He can only be made liable for such injuries as it is shown come from an omission of the prescribed diligence and exercise of judgment, or, in more technical language, for ordinary negligence.1

If a man hires a saddle-horse, he is bound to ride it moderately, and give it such care, stabling, and feed as a man of common discretion would to his own. Doing this, he is not liable to any damage, should the horse be lamed, get injured, or become sick; and it would appear that he is not bound to show, in the first instance, that he is free from fault. The law presumes him to be so, and the burden of proof of culpable negligence, want of skill, or absolute ill treatment, devolves upon the lettor of the animal.2

§ 98. Hirer of animals liable for his servant's neglect. -If from want of ordinary care the hired animal be injured or lost, whether such default be on the part of the hirer or of his servants intrusted therewith, or the children of the hirer

1 Jones on Bailments, 88; Maynard v. Buck, 100 Mass. 40; Hayes v. Howard, 6 Geo. 213; Browne v. Johnson, 29 Texas, 43; Foote v. Sterns, 2 Barb. 326; Harrington v. Snyder, 3 Barb. 380, in which it was held (in an action on the case against the hirer of a horse for so negligently taking care of him that he became of no value) that the burden of proof of negligence was on the bailor; that it was not enough for him to show that he was injured while in the possession of and use by the hirer, but it must be shown that the injury was caused by the fault of the bailee.

2 But where the loss occurs, and the hirer neglects or refuses to give any account of the cause, a presumption of negligence arises, which seems to cast the burden of proof on the hirer. (Logan v. Mathews, 6 Barr, 418; Bush v. Miller, 13 Barb. 482; Cummins v. Wood, 44 Ill. 416.) But a careful analysis of these cases does not not disturb the rule cited in the text. The burden of proof may be on the plaintiff, but given a certain condition, viz., the hiring of the animal, its death or loss, and an utter refusal of the hirer to give the explanation of the facts and circumstances which he alone can be cognizant of, may well give rise to a presumption of negligence which he must rebut. This very establishment of the presumption is an assumption, in a certain way, of the burden of proof. "The degree of negligence necessary to authorize a recovery against the hirer of a horse, which died during the bailment, is not gross negligence, but what is called ordinary negligence; and ordinary negligence is the omission of that diligence in the use and care of the horse which the generality of mankind use as to their own horses; and the omission of such diligence is called ordinary negligence." (Moore v. Cass, 10 Kans. 288.)

allowed to use or be about the same, the hirer is responsible. He is bound to use the animal with care and moderation, not to apply it to any other than the designated use,1 or detain it for a longer period than that for which it was hired,2 and at the end of the term return it to the bailor, or account for its loss by some violence, theft, or accident; but, when the loss is shown, the proof of negligence or want of due care is thrown upon the bailor, and the bailee is not bound to prove affirmatively that he was not to blame.

The value and character of the animal must be regarded by the hirer in ascertaining what is proper care. High-priced or delicate animals should, of course, not be classified with such as are commonly treated without special attention.

Care and negligence are relative terms; they are without precise definition, not susceptible of exact measurement, and what constitutes them, or either of them, can only be determined by taking into consideration the circumstances of each case. "The care must rise in proportion to the demand for it,” is the language used by an eminent writer, and the rule cannot be more correctly stated.

§ 99. The hirer has a special property in the animal leased to him, for the purposes expressed or implied by the contract. He also acquires the exclusive right to the possession of it,

1 Duncan v. R. R. Co. 2 Rich. 613; Mayor v. Howard, 6 Geo. 213; Harvey v. Epes, 12 Gratt. 153.

2 Wheelock v. Wheelwright, 5 Mass. 104. The Chief Justice (Parsons) says: "The defendant, by riding the horse beyond the place for which he had liberty, is answerable to the plaintiff in trover; for thus riding the horse is an unlawful conversion."

Swift v. Mosely, 10 Vermont, 208. Swift hired of plaintiff a farm with the cattle and sheep on it; during the term he sold the sheep and cattle. The action was trover for them against the purchaser. Held, that if the hirer apply the subject of bailment to a purpose different from that provided by the lease, his interest is determined, and the lettor is entitled to the property.

Haines v. Little, 28 Ala. 236. If a bailee for hire sells the goods without authority, the bailment is at an end. The sale does not carry to the vendee even the right of possession for the unexpired part of the term, but the bailor may maintain trover even against the bona fide purchaser. (Loeschman v Machin, 2 Starkie, 311; Cooper v. Willomatt, 1 C. B. 672.)

42 Kent's Com. 587; Harris v. Packwood, 3 Taunt. 264; Marsh v. Horne, 5 B. & C. 322.

Jones on Bailments, 85, 86; Bac. Abr. Bailment "C." In Lee v. Atkinson, Yelv. 172, it was held that, where one hired a horse to go to a certain place, and

may maintain an action for injury done to it, for any tortious disposition of it, or for any act of a third party which unlawfully interferes with this enjoyment of the use of the animal to the extent of the bailment.1 The owner has no right to interfere with this possession of the hirer, or disturb him in the lawful enjoyment of the property during the term of the bailment;2 nor can the animals be levied upon for the debts of the owner, in such manner as to interfere with the possession of the hirer;3 and even if, during the time for which the property has been let, it is redelivered to the owner, unless the contract be terminated, he is bound to return it to the hirer.4

§ 100. If the hirer abuse the animal, or otherwise violate the terms of the trust, it is a question not free from difficulty how far, if at all, his title and right of possession terminates.

The lettor does not absolutely part with the title, even temporarily; he may, as well as the hirer, maintain a suit against a stranger for injuries to or conversion of the animals; 5 he still has the larger and more beneficial estate in the property, and it appears an anomaly that he cannot be allowed to protect his property from such treatment as is manifestly beyond and foreign to the purposes had in view in making the contract; it

the hirer found him upon a road to another place, entirely different from the one he should have taken, and manifestly on a journey differing materially from the one for which the horse had been hired, the owner should not be justified in taking the horse from the bailee; the misbehavior of the bailee, in riding to another place than that for which he had hired the animal, might be punished by an action on the case, but he had a certain property in the horse for the term of the bailment.

1 Ibid; 2 Kent's Com. 586.

2 Hickock v. Buck, 22 Ver. 149. This was trover for a mare and colt. The defendant leased a farm to plaintiff, and agreed to furnish him a pair of oxen and a horse, to carry it on, and the mare in question was furnished as and for the stipulated horse. Afterward, the plaintiff, without defendant's consent, took away the mare and sold her, without furnishing any other horse to work in her place. Held, that when, under the contract, defendant placed the mare on the farm, under the charge and for the use of the plaintiff, he, the plaintiff, having accepted her for the purposes in the contract specified, became bailee of the mare, coupled with an interest, and a right to detain her during the term of the demise; that he had the exclusive use and control of her during the term, and he could maintain trover against the defendant.

8 Hartford v. Jackson, 11 New Hampshire, 145.

4 Roberts v. Wyatt, 2 Taunt. Rep. 268; Balford v. Flowers, 11 Humph. 242. 5 Bac. Abr. Trespass, "C"; Ibid, Trover "C"; 2 Bl. Com. 396; Gordon v. Harper, 7 Term Rep. 9; La Coste v. Pipkin, 13 Sm. & Mar. 589.

seems, however, that the owner is bound to abstain from interfering with the enjoyment of the property, by the bailee, during the term, and he cannot justify a seizure of the thing by force from the personal possession of the hirer, whatever may be his right to retake it, if he can peaceably, wherever he can find it, under circumstances of danger to his property. 1

An improper use or abuse of the property, or employing it other than as agreed upon, would appear to amount to a virtual determination of the bailment, so that there would not seem to be any reason why the owner should not treat the bailee as a stranger, and retake the animal, if he can do so without violence; he certainly may maintain trover against the hirer therefor; 2 and, in one instance, where a mare, which had been hired, was badly treated, over-driven, and left ill, at a distance from the home of the lettor, the owner was not only authorized to go for and retake her, but was allowed all of his expenses in going to her, attending upon the animal, and bringing her home. 3

Where the bailee converts the property to his own use, the

1 Lee v. Atkinson, Yelverton, 172; Story on Bailments, Sec. 396.

2 Ibid; Wilkinson v. King, 3 Camp. 335; Loeschman v. Machin, 2 Stark. 311; McLaughlin v. Lomas, 3 Strobh. 85; Paley on Agency, 78, 79, 80; Rotch v. Hawes, 12 Pick. 135. Trover for conversion of a horse. Defendant hired a horse to go from New Bedford to Fall River and back. He took the horse in the morning for the purpose of making this journey, and returned him to the owner, a livery-stable keeper, at night. Immediately after the return of the horse he was taken sick, and finally died of this illness. It appeared that defendant had ridden him much further than the distance agreed upon. And it was held that if a person hire a horse to go a certain distance, and he goes further, he is liable in trover for an unlawful conversion. (Homer v. Thwing, 3 Pick. 492.)

3 Graves v. Moses, 13 Minn. 335. In this case defendants hired a team-a stallion, mare, and carriage-to drive to a certain place and back. By bad treatment, over-driving, etc., the mare fell sick on the road, and was left at a roadside inn. One of the owners went to see after, care for her, and bring her home. The Court held that he who takes a thing to hire engages to use it well, care for it properly, and return it to the owner. If bad usage procure the loss of the property, the bailor may recover from the hirer the value of the property lost through his misconduct. And it is the privilege, probably the duty, of the lettor to use all reasonable exertions in a case such as this; to use all reasonable care, diligence, and skill, to save the animal's life, and to cure it. That for the trouble and expense he is put to in so doing, he may have judgment against him whose misconduct has caused the occasion therefor; and that the expenses and loss of time incurred, in going to and from where the sick animal was, should be included as a natural and necessarily incurred part of such loss and expense.

bailment is ended. 1 Thus, if a bailee for hire, for a specified length of time, sell the property before the expiration of the term, the bailment is thereby ended, and the owner may maintain trover, should the vendee refuse to deliver it to him on demand. Nor does it alter the case that the bailee, by his contract, had a right to purchase the property within the term at an agreed price.

§ 101. A borrower differs from the hirer of animals, in that he is held to a much more strict rule of care and responsibility.

Where a loan is gratuitous, when the lender derives no benefit from the transaction and looks for no reward, the bailee is bound to extraordinary care, and is responsible for injuries resulting from slight negligence on his part, or that of his employees, children, or guests.2

1 Sargent v. Gill, 8 N. H. 325. See Green v. Harris, 3 Iredell, 210.

2 Jones on Bailments, 64 et seq.; Vaugh v. Manlove, 3 Bing. N. C. 468, 475; Phillips v. Condon, 14 Ill. 84; Scranton v. Baxter, 4 Sandf. 8.

In Bennett v. O'Brien, 37 Ill. 250, the justice (Lawrence) says: "O'Brien let Bennett have the use of his horse without compensation. This gratuitous bailment imposed on the borrower the duty of extraordinary care." The animal died while in the possession of the borrower: it was held that the burden of proof was upon him to show that he had taken such care. (Wood v. McClure, 7 Ind. 155; Eastman v. Sandborn, 3 Allen, 594; Carpenter v. Branch, 13 Vern, 161.) Green . Hollingsworth, 5 Dana, 173; Howard v. Babcock, 21 Ill. 259. This was an action for debt. It appeared at the trial that plaintiff sold his farm to defendant, and loaned to him a pair of work-mares which were on the place. One of the mares died. Defendant proved that he had taken all reasonable and proper care of her. It was held that unless the defendant could show that the death of the animal was without his fault, and that he had taken extraordinary care of the mare, he would be liable for her value; that a slight degree of neglect in the care of an animal loaned would render the borrower liable for its loss or death.

A borrower of animals is, of course, bound to feed them during the time of the loan, unless an express arrangement to that effect relieves him from this duty, (Hanford v. Palmer, 2 B. & Bing. 359) and if the borrowed animal be returned low in flesh, the presumption would obtain that he had not done so, and the bailes be put upon proof would have to take the affirmative, and show that the falling off in condition did not result from any neglect on his part. (Bray v. Mayne, 1 Gow. 1.)

But if the loss or damage to borrowed animals occur through casualties which could not be foreseen and guarded against, or if they result from inevitable accident, the borrower is not liable. Jones on Bailments, 67; Story on Bailments, 240; Watkins v. Roberts, 28 Indiana, 167; in which the horse was loaned, and while in the possession of the borrower, without any fault or negligence on his part, it was taken from him forcibly by a detachment of cavalry

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