440 BAILMENT. 



No agistor's lien, therefore, exists at the common law,^^* 

 unless there is a special agreement.^** Such a lien is, how- 

 ever, commonly given by statute,^^' and a claim therefor 

 has been held to be assignable."" The lien is confined to the 

 kind of animals mentioned in the statute.^^'^ Where the law 

 provided that the agistor should have a lien until the charges 

 under the agreement are paid, the buyer of a mare with foal, 

 who agreed that the seller should have the colt when four 

 months old, was held to have no lien on the colt for the 

 amount the seller agreed to pay for the use of the mare, 

 there being no agreement by which the latter was to pay 

 anything for the care or keep of the colt.^^^ But where one 

 takes a number of animals to pasture on an entire contract 

 for an agreed sum, he has a lien on each for the amount due 

 on all, and one cannot be taken away without paying for all, 

 though enough remain to secure the debt.^^^ 



The lien can arise only in favor of one who has actually 

 "kept" the animal, not of one who has merely paid or 

 contracted to pay some other for the keeping.^*" The owner 

 of a farm residing on it has no lien for pasturage on the stock 

 ■of his tenant who works his farm and has the custody of 

 the stock: such owner is not a herder, feeder and keeper of 

 stock for hire within the meaning of the statute.^*^ Where 



""Ibid; Chapman v. Allen, Cro. Car. 271; Bissell v. Pearce, 28 N. Y. 

 252; Goodrich v. Willard, 7 Gray (Mass.) 183; Wills v. Barrister, 36 Vt. 

 :22o; Lewis v. Tyler, 23 Cal. 364; Mauney v. Ingram, 78 N. C. 96. 



Otherwise, by the law of Scotland: 2 Bell Com. no. 



"* See Chapman v. Allen, supra; McCoy v. Hock, 37 la. 436. 



''^ See Smith v. Marden, 60 N. H. 509; Bunnell v. Davison, 85 Ind. 

 557; KroU v. Ernst, 34 Neb. 482; Gates v. Parrott, 31 id. 581; Lambert 

 V. Nicklass (W. Va.), 31 S. E. Rep. 951, and other cases cited in the pres- 

 ent section. 



"° First Nat. Bk. v. Barse Commn. Co., 61 Mo. App. 143. 



"' Fein v. Wyo. Loan & Trust Co., 3 Wyo. 332. 



'■" Cook V. Shattuck, 21 N. Y. Suppt. 29. 



"" Yearsley v. Gray, 140 Pa. St. 238. '*> Cox v. McGuire, 25 111. App. 315. 



'" Wright V. Waddell, 89 la. 350. 



As to a partner, see Auld v. Travis, s Colo. App. 535. 



