But this action is a case for improperly caring for and ill treating the horse. For all damages arising from such acts and neglects, wherever the horse was driven, the charge permitted a recovery. The plaintiffs, therefore, had an opportunity to recover all damages declared for. There was no error in the action of the court upon the first and third requests.

2. The second request of the plaintiffs to charge was, “that when property in the exclusive possession of the bailee for hire is injured in a way that does not ordinarily occur without negligence, as the plaintiffs' evidence tends to show in this case, then the burden of proof is upon the bailee to show that it was not occasioned by his negligence."

It is conceded by the plaintiffs that the burden of proof in the first instance was upon them; that it was incumbent upon them to show that the injuries to the horse were occasioned by the negligence of the defendant; but they insist that they discharged that duty and relieved themselves of that burden by showing that the horse was delivered to the defendant in a sound condition, and returned injured in a way that does not ordinarily occur without negligence. That having shown these facts, the burden shifted and rested upon the bailee to show that the injury was not occasioned by his negligence. Whether they were entitled to have this request complied with depended upon the duty of the defendant in respect to the horse. The request may embody sound law had it been the defendant's duty to return the horse in the same condition in which he received it; but his duty was performed if, during the bailinent, he had exercised due care, and had been guilty of no neglect in his treatment of the horse. Had he been free from fault, he was not liable, although he might not have returned the horse at all. This being the measure of his duty, the burden was upon the plaintiffs to show negligence, and rested upon them throughout the trial. The plaintiffs do not establish negligence by showing the facts stated in the request; the facts may have been true, and the defendant guiltless of any improper conduct in respect to the horse; the injuries may have arisen from some cause wholly disconnected with the care or use of the horse. However potent the facts tending to establish the defendant's guilt may be, there is no time during the trial that the plaintiffs are entitled to have them withdrawn from the consideration of the jury and a verdict ordered, upon a simple showing that the horse when returned was not in the condition it was in at the time of the bailment, as stated

in the request. This case should be distinguished from those where the defendant is under an obligation to return or deliver property in the condition that it was in when he received it. In suits against common carriers, innkeepers, and perhaps some others, a different rule may apply.

The cases mainly relied upon by the plaintiffs do not aid them. Collins v. Bennett, 46 N. Y. 490, was an action of trover, and a conversion of the horse, as the court said, "was clearly proved, and no question could therefore arise as to the burden of proof." The discussion by Peckham, J., of a question which he says was not in the case, is not law. The cases cited by him in support of his views are mainly those against common carriers and innkeepers. Logan v. Mathews, 6 Pa. St. 417, is a case very similar to this in its facts; but the instructions of the trial court which were sustained were: "When the bailee returned the property in a damaged condition, and fails, either at the time or subsequently, to give any account of the matter in order to explain how it occurred, the law will authorize the presumption of negligence on his part. But when he gives an account, although it may be a general one, of the cause, and shows the occasion of the injury, it then devolves on the plaintiff to prove negligence, unskillfulness, or misconduct." We by no means concede this charge to be law, but if it is, the plaintiffs' case is not within it, as it does not appear that the defendant failed to give an account of his expedition, and "his testimony tended to deny and disprove every claim and contention of plaintiffs tending to fix any liability upon him," in which contingency, as the rule is laid down in that case, it devolved on the plaintiffs to show negligence.

Neither is the case cited of Rowell v. Fuller, 59 Vt. 688, in point. That action was assumpsit to enforce a contract obligation to return notes on demand; if the defendant did not fulfill his contract, and failed to return the notes, he was liable, and the burden was upon him to show the cause of his failure, if he wished to be relieved from it. We understand our ruling upon this question has always been the doctrine of the English ourts, applied in some instances to common carriers. Cooper v. Barton, 3 Camp. 5, note, "was an action of assumpsit for not taking proper care of a horse hired by defendant of plaintiff. The plaintiff proved the hiring of the horse; that he was returned to him with his knees broken in consequence of a fall, whilst used by the defendant; and that the horse had

before that time been often let out to hire, and had never fallen down. The plaintiff contended that this was a sufficient case to go to the jury, although he had given no evidence of negligence; because as he had shown that the horse was a good horse, and not in the habit of falling, it must be presumed that the fall was occasioned by negligence, and it was for the defendant to prove the contrary if he could. Le Blanc, J., however, said that the plaintiff must give some evidence of negligence; and as he had given none in this case, the plaintiff must be nonsuited."

The same rule applies in case of a warehouseman whose duty it is to keep goods intrusted to him with due care: Willett v. Rich, 142 Mass. 356; 56 Am. Rep. 684.

Bearing in mind the liability of the bailee in a case like the one at bar, there need be no difficulty in arriving at a correct result, and reconciling the cases that apparently are in conflict. Judgment affirmed.

BAILEE OF HORSE FOR HIRE IS GUILTY OF CONVERSION, in driving him to place different from that for which he was hired: See Towne v. Wiley, 23 Vt. 355; 56 Am. Dec. 85, and note.

BAILEE IS PRESUMED TO HAVE BEEN NEGLIGENT, and burden of showing contrary is on him, where the bailor shows that he delivered and the bailee received the property in good condition, and that it was returned in damaged state: Cumins v. Wood, 44 Ill. 416; 92 Am. Dec. 189. But see, contra, Claflin v. Meyer, 75 N. Y. 260; 31 Am. Rep. 467; Willett v. Rich, 142 Mass. 356; 56 Am. Rep. 684.

ST. JOHNSBURY AND LAKE CHAMPLAIN RAILROAD COMPANY V. HUNT.

[60 VERMONT, 588.]

OFFICER MAY LAWFULLY STOP RAILWAY TRAIN FOR PURPOSE OF ARREST. ING ITS ENGINEER, where the officer has in his hands a writ by which he is commanded to arrest the body of such engineer.

CASE for stopping the plaintiff's cars. The case was heard on demurrer to the defendant's pleas, and the demurrer was sustained. Other facts are stated in the opinion.

P. K. Gleed, for the defendant.

Ide and Stafford, for the plaintiff.

POWERS, J. This case was heard upon a general demurrer to the defendant's third special plea. The declaration in sub

stance charged that while the plaintiff was lawfully and properly operating its railroad in running a train, of which Collins was the engineer, its engine struck and injured a heifer of the defendant, there by the fault of the defendant, wrongfully upon its track, and the defendant knowing he had no legal cause of action against the plaintiff, for the purpose of injuring the plaintiff, and delaying and hindering the operation of the railroad, sued out a writ, and caused an officer thereunder to arrest the body of Collins, the engineer, by stopping the train for that purpose.

The third plea alleges that the defendant had a legal cause of action against Collins, which was equally enforceable against the plaintiff, founded upon the negligence of Collins, the plaintiff's servant, in causing the injury to said heifer; that suit thereon was brought against Collins tortwise; that the defense to such suit was assumed by the plaintiff in behalf of Collins, and therein the question whether said heifer was unlawfully, and by the defendant's fault, upon said railroad track was litigated, and that it was adjudged in such suit that said Collins was in the wrong, and judgment was entered in favor of the now defendant against Collins; and that the arrest of Collins upon the writ in said cause was in pursuance of the defendant's legal right, and no more was done than was necessary to that end.

The question raised and argued before us was, whether an officer, having a legal process, in which he is commanded to arrest the body of the defendant, may stop a railroad train for the purpose of making an arrest of the engineer of such train. The defendant, in his brief, says: "The question submitted is this, Had the officer the legal right to stop the train for the purpose of arresting Collins?" The plaintiff, in its brief, says: "This case is not to be decided upon the theory that the plaintiff's only claim to recover rests upon the fact that, as an incident of the arrest, he lost the service of an employee. That is not the claim we press. The question is one of public policy." The court below sustained the demurrer, on the ground that the officer had no right to stop the train to arrest the body of the engineer upon civil process against him.

It is conceded by the plaintiff that an officer having proper process might lawfully stop a train to arrest its engineer in a criminal proceeding, but the argument is, that in civil proceedings the consequences are, or in conceivable cases might be, so detrimental to the public using the railroad, the court

should hold, on grounds of public policy, that the right does not exist.

The process was a legal one, commanding the officer to arrest Collins. The command in the process was the command, not of Hunt, but of the law. The officer did not act in making the arrest because Hunt commanded him, but because the law commanded him. Hunt, to be sure, had invoked the issue of the process, but the sheriff's justification and authority was the command of the process.

Cases may easily be conceived in which, upon considerations of relative convenience and inconvenience, the stopping of a train to serve a justice writ upon its engineer would seem to be ridiculous. But, on principle, would it be any more so if the train was stopped to serve a writ upon the engineer claiming ten dollars in damages for an assault and battery, than stopping it to arrest him in a criminal proceeding seeking to impose a fine of ten dollars upon him for the same assault? It will hardly do to rest the question upon conjectural difficulties. If it is a question of public policy, it is so because its usual, normal, and legitimate consequences are hurtful to the public. As a practical fact, there is little danger that officers will have occasion to stop a train for the service of process of any kind. Again, it is conceded that the officer might arrest the engineer at a station on the road. But this would delay the train just as long, and work precisely the same inconvenience to the public, as stopping it between stations.

It is admitted that an officer might stop a stage-coach to arrest the driver. This conceivably might delay the passengers on their way to a railroad station, so that they fail to reach a train that their business requires them to take. What is the difference in principle between an act which hinders the passenger on a public conveyance to the train and an act which hinders him while on the train?

If the question is one of public policy, it must apply generally to public carriers. But we think the right to arrest cannot be defeated upon any considerations that public policy forbids its exercise in the case of locomotive engineers. The command of the process is the voice of the law speaking to its officer. It is the order of the state of Vermont to do the act complained of. There is no room for the doctrine of public policy in such a case. It is illogical and absurd to say that the command of the law cannot be executed because, on