GENERAL RULES AFFECTING LIABILITY, ETC. 285 



"By the ancient common law, agistment did not relieve the 

 owner from liability." ^*^ 



Where, however, the owner has selected a reckless and ir- 

 responsible agistor he is liable in case;"® and this has been 

 held to be the only form of action that can be brought against 

 the owner of agisted cattle.^*® 



If the owner of a close takes oxen to keep for their owner 

 and has the custody of them, he must be considered the oc- 

 cupier of the close and bound to keep the cattle on the land, 

 but if the cattle owner keeps them there and has the custody 

 and control of them he is occupier quoad the oxen and is liable 

 for their trespasses.^ ^^ And where the defendants agreed 

 that A. should work their farm, they having the right to go 

 upon it but not to interfere, and a ram on the premises at the 

 time was exchanged without the defendants' knowledge for 

 one which trespassed on the plaintiff's premises, it was held 

 that the defendants were not liable as owners of the ram, nor 

 as principals, A. being an "independent contractor." ^^^ 



In a New York case a distinction was suggested between 

 the case of the lessee of a farm and an agistor, the court say- 

 ing of the Maine and Massachusetts decisions : "In each of 

 these cases the cattle were in the possession of an agistor. 

 An agistor is one who takes cattle for hire to pasture or care 

 for. We think there is a distinction between a person having 

 possession of cattle as an agistor and one who has possession 

 as the lessee of a farm and the cattle thereon. In the case 

 of an agistor, the possession is more in the nature of an agent 

 or bailee ; the owner, remaining constructively in the posses- 

 sion, may at any time take them into his actual possession; 

 but in the case of a lessee, the owner's interest in the cattle is 

 parted with for the term of the lease. Within that term he is 



"' Blaisdell v. Stone, 60 N. H. 507. "" Ward v. Brown, 64 111. 307. 

 ""Wales V. Ford, 3 Halst. (N. J.) 267; Rossell v. Cotton, 31 Pa. St. 525- 

 ""Tewksbury v. Bucklin, 7 N. H. 518; Kennett v. Durgin, 59 id. 560. 

 And see Duggan v. Hansen, 43 Neb. 277. 

 "' Marsh v. Hand, 120 N. Y. 315, affirming 40 Hun 339. 



