The opinion of the court was delivered by

The plaintiff placed his colt in the defendant’s pasture to be agisted for him. It was afterwards found in the ad*72joining pasture of another owner with a broken leg, and lost to the plaintiff. The action is founded upon the wrongful acts of defendant in agisting the colt. There are no facts in the case but such as appear on the report of the referee. The report is a graceful narrative of the contract of agistment, and incidents in the history of the colt up to the time he ,was found with its leg broken ; but is naked of all facts tending to show wrong on the part of the defendant. The plaintiff claims that the hampering the colt with a poke without the plaintiff’s consent was wrongful. But if this be conceded, the case fails to show that plaintiff has suffered injury from that cause. And it would seem an unnatural and strained inference for a court to infer that the broken leg was caused by the poke. If an inference is to be drawn from the circumstances detailed, it is. altogether a matter of fact to be found by the jury or referee, and, in no sense, a matter of law with which the court have to deal.

It is claimed by the plaintiff that the hampering the beast with a poke, without authority from the plaintiff, was so far wrongful that the burden is cast upon the defendant to negate any injury from that cause ; but we think, under all the proof in the case, it is incumbent on the plaintiff to prove his case by a fair balance of the testimony. If the beast is proved to have suffered for the want of food, or water, or salt, it shows or tends to show negligence and fault of the agister; but if the injury complained of in the declaration be a broken leg, and there is no legal or logical connection between the fault proved and the injury averred, and for which damages are sought, the grievance complained of is not sustained, and hence the plaintiff, by his proof, has established no basis for a judgment to requite the injuries he has alleged. There is great mistake, and not an uncommon error, in the report of referees, that they often carefully delineate circumstances and find no facts, with the seeming purpose of showing to the parties that- they are entirely impartial by casting upon the court the burden of all ugly inferences of fact. Whatever be the motive the practice is a bad one.

The result is, that the judgment of the County Court is affirmed.