224 



LIVERY-STABLE KEEPERS, AGLSTERS, ETC. 



An action for 

 not taking; 

 due care of a 

 horse founded 

 on contract. 



An action against a livery-staUe keeper for not taking 

 due and proper care of a horse of the plaintiff's, whereby 

 damage resulted, is founded on contract, and not in tort, 

 and thus differs from an action against a farrier, who 

 shoes a horse negligently, and so commits a breach of a 

 common law duty. Therefore, where less than 20/. is 

 recovered against a lirery-stdble keeper, the plaintiff is 

 deprived of costs by the County Courts Act, 1888, s. 116, 

 unless the judge certifies that there was sufficient reason 

 for bringing the action in the High Court (o). 



His posses- 

 sion. 



Does not in- 

 sure a horse's 

 safety. 



He is answer- 

 able for negU- 

 gence. 



If he leaves 

 his gates 

 open. 



Agister. 



An agister has such a possession that he may maintain 

 trespass against a person who has taken away any horse 

 or cattle left with him to be agisted [p). He may also 

 maintain an action of trover for horses or other cattle 

 during their agistment {q). If a horse so left be sold by 

 him, it is no larceny (r) ; and if it be stolen, and the thief 

 prosecuted, the property may be laid as his («). 



A person who takes in horses to agist does not, like an 

 innkeeper, insure their safety. He is obliged to use rea- 

 sonable care, but is not answerable for the wantonness or 

 mischief of others. For if a horse has been taken from 

 his premises, or has been lost by accident, against which he 

 could not guard, he is not responsible {t). 



A person who takes horses to agist is answerable, either 

 if a particular negligence be proved, through which the horse 

 was lost, or if, in ignorance of the special circumstances of 

 the case, there be gross general negligence, to which the loss 

 may reasonably be ascribed (?()• 



For instance, if cattle be agisted, and the agister leaves 

 the gates of his field open, he uses less than ordinary dili- 

 gence ; and if the cattle stray out and are stolen, he must 

 make good the loss (r). 



"Where an action was brought for the breach of a contract 



(o) Legge v. Tucker, 1 H. & X. 

 500 ; 26 L. J., Ex., 71, decided 

 under 13 & 14 Vict. c. 61, s. 11. 



(;)) See 4 Inst. 293 ; 2 Eol. Abr. 

 55 i ; Woodward' s case, 2 East's P. 

 C. 653. 



{q) Clarke T. Eoe, 4 Ir. C. L. 

 Eep. 7. 



()•) Rex V. Smith, 1 Mood. C. C. 

 473. 



(s) Woodward's ca^e, 2 East's P. 

 C. 653. 



(;") Broadwater y. Blot, Holt, 547. 

 See Corhett v. Packington, 6 B. & C. 

 268 ; Lib. Plac. 14. 



(«.) Ibid. 



{v) Broadwater y. Blot, Holt, 547; 

 17 R. R. 677. Also per Byles, J., 

 Marfell v. Soitth Wales Sail. Co., 

 8 C. B., N. S. 525. 



