5S8 COMPENSATION FOR AGISTMENT. 



given of g-eneral bad condition of fences on the farm, and negligence as 

 to leaving gates open. Gibhs C.J. said: " All the defendant is obliged 

 to observe is reasonable care. He does not insure, and is not answer- 

 able for the wantonness or mischief of others. If the horse had been 

 taken from his premises, or had been lost by accidents which he could 

 not guard against, he would not be responsible. I admit that particular 

 neo-ligence must be proved, by occasion of which the horse was lost ; or 

 gross general negligence, to which the loss may be ascribed in ignor- 

 ance of the special circumstance which occasioned it. If there were 

 a want of due care and diligence generally, the defendant will be liable. 

 The question is, were the defendant's fences in an improper state at the 

 time the horse was taken in to agist ? Did he apply such a degree of 

 " care and diligence to the custody of the horse as the plaintiff", who 

 entrusted the horse to him, had a right to expect ? I shall leave it to 

 the jury" — who found for the value of the horse. 



AVhere a tenant of one Rev. Hugh Smith relied on the prescriptive 

 riuht of his landlord to have for himself and his tenants, &c., occupiers 

 ot^he messuage and farm of Blaenmerin, " the sole and exclusive right 

 of pasture and feeding of sheep and lambs," on the locus in quo, as to 

 the said messuages and farm appertaining, it was held by the Court of 

 Queen's Bench, confirming the ruling of Coleridge J., that this did not 

 entitle him to take in the sheep and lambs of other persons upon tack 

 to pasture thereon, for that by the terms of the grant some interest in 

 the pasture was reserved to the lord, and the al)ove practice was preju- 

 dicial to such interest {Jones v. Richard). 



As regards com2)ensation for agistment in Harman v. Reeve, it was 

 suggested, |;^r Curiam : " Could not the plaintiff sue the defendant for 

 the six weeks' agistment of the mare and foal on the principle suggested 

 Ijy Bagleij B. in Wood v. Benson and Earl of Falmouth v. Thomas ? 'It 

 by no means follows that, becausre you cannot sustain a contract on the 

 whole, you cannot sustain it in part, provided your declaration be so 

 framed as to meet the proof of that part of the contract which is good.'" 

 A contract for agistment is, according to Jones v. Flint, not a contract 

 for an interest in land. The question as to whether agisted cattle are 

 the suhject of lien was first decided in Chapnan v. Allen, where five kine 

 were put to pasturage at twelve-pence a-weck each. The Court said 

 that it " was not like to the case of an inne-keeper or tailor ; they may 

 retain the horse or garment delivered to them until they be satisfied ; 

 but not when one receives horses or kine, or other cattell, to pasturage, 

 paying for them a weekly summe, unless there be such agreement 

 between them." 



Lord Lllenhorovgh C.J. thus remarked on this case in Chase v. West- 



