436 BAILMENT. 



his place, he is liable for an injury happening therefrom to the 

 agisted animal. i"" But he is not exempt from liability merely 

 on the ground that he did not know the animal to be fero- 

 cious. All the circumstances may, nevertheless, show a want 

 of reasonable care and the rule as to scienter does not apply 

 to such cases of contract."" 



Where the agisted horse was killed by falling into a hole 

 in a field situated over old mineral workings, which hole had 

 been noticed some time before by neighbors, it was held that 

 the agistor was liable as he had failed to take that reasonable 

 care of the property which a reasonable man would have 

 taken of his own.^^^ On the other hand, where a horse was 

 drowned in a pond or quagmire existing to the owner's 

 knowledge on the pasture ground, the agistor was held not 

 liable because he had not fenced it off, such places not being 

 usually fenced. ^^~ 



Where the plaintiff agreed not to overstock the pasture, 

 it was held that such agreement was not affected by the 

 defendant's having inspected the pasture before the cattle 

 were turned in, so that he might have known it would be 

 overstocked.^** Where the kind of pasturage is expressly 

 defined, in the contract, an instruction that the agistor is re- 

 quired to furnish only the average quantity and quality for 

 the locality and the season is properly refused.*** 



The agistor is bound to employ careful and trustworthy 

 servants and is liable for injuries done by them through negli- 

 gence, though not if they are mahcious or wilful.**^ He 

 must notify his customers as to any unusual risk to which 



'°° Schroeder v. Faires, 49 Mo. App. 470. 



"° Smith V. Cook, i Q. B. D. 79, approving of Dolph v. Ferris, 7 W. & 

 S. (Pa.) 367. And see the review of this case in 10 Ir. L. T. 117. 



™ McLean v. Warnock, 10 Rettie (Sc. Ct. Sess.) 1052. And see Pearce 

 V. Sheppard, 24 Ont. 167. 



"' McKeage v. Pope, Rap. Jud. Quebec, 10 C. S. 459. 



'" McAuley V. Harris, 71 Tex. 631. 



"* Ware Cattle Co. t'. Anderson (la.), 77 N. W. Rep. 1026. 



"° Halty V. Markel, 44 III. 225. 



