AGISTMENT. 435 



burden of accounting for the loss or injury is on the agistor. 

 There is some conflict in the decisions, but this appears to be 

 the better rule.i"^ 



The agistor is not Hable for a loss resulting from severe 

 weather, where there has been no negligence on his part;^"^ 

 nor is he liable where the animals were in a bad condition to 

 ■endure cold weather when he received them;'"^ nor where 

 an animal unaccountably disappeared though the fence was 

 a sufihcient one.^"* 



The rule, as was said, is otherwise where there is negli- 

 gence. The agistor is liable if his fence is not a good one: 

 in such a case, he should immediately repair it.^°^ Thus, he 

 is responsible if sheep escape into another field and become 

 infected by other sheep.^"^ But in New York it has been 

 held that the agistor is not liable for cattle contracting 

 Texas fever from being pastured in fields previously occupied 

 by Texas cattle when he did not know there was such danger, 

 — the liability of native cattle to contract disease under such 

 circumstances not being sufihciently well known in that State 

 to charge the defendant constructively.'"'^ When cattle 

 ■escape from an agistor's field, it is his duty to find and reclaim 

 them and, if he is guilty of negligence in not using proper 

 ■care over them, in legal effect he suffers them to run at 

 large.i"* 



Where the agistor knowingly keeps a vicious animal on 



'°^ See Schouler Bailm. (3d ed.) § 23; 3 Amer. & Eng. Encyc. of Law 

 <2d ed.) 750; Ware Cattle Co. v. Anderson (la.), "jy N. W. Rep. 1026; 

 Goodfellow V. Meegan, 32 Mo. 280; Cummings v. Mastin, 43 Mo. App. 

 558; Rayl V. Kreilich, 74 id. 246; Wood v. Remick, supra; Sutherland 

 V. Hutton, 23 Rettie (Sc. Ct. Sess.) 718; Belanger v. Quiner, 9 Rev. Leg. 

 (Can.) 530. 



"' Brush V. Clarendon Land, I. & A. Co., 2 Tex. Civ. App. 188. 



™ O'Keefe v. Talbot, 84 la. 233. '°* Race v. Hansen, 12 111. App. 605. 



"'Cecil V. Preuch, 4 Mart. N. S. (La.) 256; Lucia v. Meech (Vt.), 34 

 Atl. Rep. 695- 



™ Sargent v. Slack, 47 Vt. 674. 



'" Gibbs V. Coykendall, 39 Hun (N. Y.) 140. See §§ 88, 89, supra. 



"' Schlachter v. Wachter, 78 111. App. 67. 



