AGISTER. 225 



of agistment of a mare to be agisted in a field which was 

 separated by a wire fence from another field in the occupa- 

 tion of a cricket club ; and it was alleged that, owing to the 

 negligence of the agister's servant in leaving open a gate 

 between the two fields, the mare had escaped from the 

 field in which she was placed into the cricket field, where- 

 upon certain members of the club endeavoured in a careful 

 and proper manner to drive her back through the gate ; 

 but the mare refused to go through the gate, and having 

 run against the wire fence fell over it, and was injured by 

 one of the iron standards. It was held that the injury 

 to the mare was the natural consequence of the gate 

 having been left open, and that the agister was liable {iv). 



So, too, if \he fences were in an improper state when the Fences out of 

 horse was taken in to agist, or if the party taking it in, '"^'^®''' '^''• 

 did not apply that care and diligence to its custody, even 

 though it be taken in gratuitously {x), which the owner 

 had a right to expect {x) ; as where, from not properly 

 fencing a pond, the horse stuck in the mud and died, the 

 agister is answerable for such negligence (y). But where 

 a horse fell through some rotten boards into a cesspool and 

 was injured, it was doubted by Willes, J., whether the 

 defendant was liable (z). 



In the case of Gaunt v. Smith (a), tried before Pollock, Injury by 

 C.B., which was an action brought against an agister for j^Q°gg^^j 

 negligence in the care of the plaintiff's pony, which was 

 kicked and damaged during its agistment by a horse, whose 

 shoes had not been taken off, there being no evidence that 

 the defendant knew the horse to be vicious, the plaintiff 

 was nonsuited. But it must not be supposed from this 

 ruling that the doctrine of scienter has any application to 

 an alleged breach of contract of agistment, except, perhaps, 

 in so far as the knowledge of the agister of the ferocious 

 character of the animal causing the injury may be evidence 

 of negligence ; for the contract of agistment is a contract 

 to take reasonable care, and he is, therefore, not exempt 



(«c) Halestrap v. Gregory, [1895] horse when grazing in a field, by 



1 Q. B. 661; 64 L. J., Q. B" 415; falling down a shaft, which was 



72 L. T.,N. S. 292; 43W. E. 507. improperly fenced by the defen- 



{x) Sooth V. Wilson, 1 B. & Aid. dants, who were in occupation of the 



59 ; 18 E. R. 431. minerals under the field, was action- 



(y) Fovey v. Furnell, before Chief able. 

 Justice Jervis, C. P., N. P., Dec. 6, (:) Staceyy. Livesay, C. P., N. P., 



1853. And see Groueott v. WiU Nov. 14, 1856. 

 Uaim, 32 L. J., Q. B. 237, in which [a) Gaunt v. Smith, N. P., Ex., 



it was held that injury done to a Dec. 11, 1856. 



O. Q 



