1. It is always supposed, unless an express agreement be made to the contrary, when horses are put out to keep, that the keeper is at the risque of them (unavoidable accidents only excepted, wherein no care of the keeper can be supposed sufficient to preserve them, such as their being slain by lightning or the like.) This you yourself tacitly allow when you offer to restore me the value of my horse. Were it otherwise, people having no security against a keeper's neglect or mismanagement would never put horses out to keep.
2. Keepers considering the risque they run, always demand such a price for keeping horses, that if they were to follow the business twenty years, they may have a living profit, though they now and then pay for a horse they have lost; and if they were to be at no risque they might afford to keep horses for less than they usually have. So that what a man pays for his horse's keeping, more than the keeper could afford to take if he ran no risque, is in the nature of a premium for the insurance of his horse. If I then pay you for the few days you kept my horse, you should restore me his full value.
3. You acknowledge that my horse eat of your hay and oats but a few days. It is unjust then to charge me for all the hay and oats that he only might have eat in the remainder of the six months, and which you have now still good in your stable. If, as the proverb says, it is unreasonable to expect a horse should void oats who never eat any, it is certainly as unreasonable to expect payment for those oats.
4. If men in such cases as this are to be paid for keeping horses when they were not kept, then they have a great opportunity of wronging the owners of horses. For by privately selling my horse for his value (ten pounds) soon after you had him in possession, and returning me at the expiration of the time only seven pounds, demanding three pounds as a deduction agreed for his keeping, you get that 3l. clear into your pocket, besides the use of my money six months for nothing.
5. But you say, the value of my horse being ten pounds, if you deduct three for his keeping and return me seven, it is all I would in fact have received had you returned my horse; therefore as I am no loser I ought to be satisfied: this argument, were there any weight in it, might serve to justify a man in selling as above, as many of the horses he takes to keep as he conveniently can, putting clear into his own pocket that charge their owner must have been at for their keeping, for this being no loss to the owners, he may say, where no man is a loser why should not I be a gainer. I need only answer to this, that I allow the horse cost me but ten pounds, nor could I have sold him for more, had I been disposed to part with him, but this can be no reason why you should buy him of me at that price, whether I will sell him or not. For it is plain I valued him at thirteen pounds, otherwise I should not have paid ten pounds for him and agreed to give you three pounds more for his keeping, till I had occasion to use him. Thus, though you pay me the whole ten pounds which he cost me, (deducting only for his keeping those few days) I am still a loser; I lose the charge of those days' keeping; I lose the three pounds at which I valued him above what he cost me, and I lose the advantage I might have made of my money in six months, either by the interest or by joining it to my stock in trade in my voyage to Barbadoes.
6. Lastly, whenever a horse is put to keep, the agreement naturally runs thus: The keeper says I will feed your horse six months on good hay and oats, if at the end of that time you will pay me three pounds. The owner says, if you will feed my horse six months on good hay and oats, I will pay you three pounds at the end of that time. Now we may plainly see, the keeper's performance of his part of the agreement must be antecedent to that of the owner; and the agreement being wholly conditional, the owner's part is not in force till the keeper has performed his. You then not having fed my horse six months, as you agreed to do, there lies no obligation on me to pay for so much feeding.
Thus we have heard what can be said on both sides. Upon the whole, I am of opinion that no deduction should be allowed for the keeping of the horse after the time of his straying.
I am yours, &c.
THE CASUIST.