AGISTER. 241 



cumstances of the case, tliere be gross general negligence, 

 to which the loss may reasonably be ascribed («) . 



For instance, if cattle be agisted, and the Agister leaves If ho leaves 

 the gates of his field open, he uses less than ordinary dili- ■'"^ Gates 

 gence ; and if the Cattle stray out, and are stolen, he must °^^^' 

 make good the loss (r). 



So, too, if the Fences were in an improiDcr state when the Fences out of 

 Horse was taken in to agist, or if the party taking it in, order, &c. 

 did not apply that care and diligence to its custody, even 

 though it be taken in gratuitously (.r), which the owner 

 had a right to expect (.r) ; as where, from not properly 

 Fencing a Pond, the Horse stuck in the mud and died, the 

 Agister is answerable for such negligence (y) . But where 

 a Horse fell through some rotten boards into a cesspool 

 and was injured, it was doubted by Willes, J., whether the 

 defendant was liable (z). 



In the ease of Gaunt v. Smith {a), tried before Pollock, Injury by 

 C. B., which was an action brought against an Agister for ?J^o*^^er 

 negligence in the care of the plaintilf's Pony, which was °^^^' °' 

 kicked and damaged during its agistment by a Horse, 

 whose shoes had not been taken oS, there being no evi- 

 dence that the defendant knew the Horse to be vicious, the 

 plaintiff was nonsuited. But this case has recently been 

 overruled by the case of Smith v. Cook {b), the facts of 

 which were as follows : — An Agister of cattle placed a 

 Horse in a field with a number of heifers, knowing that a 

 bull, kept on adjoining land, had several times been found 

 in the adjoining field, and there was no sufficient fence to 

 keep it out. He did not, however, know that the bull was 

 of a mischievous disposition. The IPorse was gored by tlie 

 bull and killed; and in an action by the owner of the 

 Horse against the Agister for breach of contract to take 

 reasonable care, the jury found for the plaintiff. It was 

 held that the fact that the Agister had no knowledge of 

 the mischievous disposition of the particular bull was no 



(tf) See note {i), ante. Horse when grazing in a field, by 



[v) Broadwater v. Blot, Holt, falling down a shaft, which was 



5-17. Also per Byles, J., Marj'dl improperly fenced by the defend- 



V. South H'ales Bailw. Co., 8 C. B., ants, who were in occupation of 



N. S. 525. the minerals under the Held, was 



{x) Booth V. JTihon, 1 B. & Aid. actionable. 

 59. (r) Slacci/ v. Livesay, C. P., N. P., 



{y) Poveyy.Purnell, before Chief Nov. 14, 1856. 

 Justice Jervis, C. P.,N. P., Dec. 6, {a) Gaunt y. Smith, N. P., Ex., 



1853. And see Groucott v. WU- Dec. 11, 1856. 



lUuns, 32 L. J., Q. B. 237, in which {}>) L. R., 1 Q. B. D. 79 ; 45 L. 



it was held that injury done to a J., Q. B. 122 ; 33 L. T., N. S. 722. 



U. R 



