Agistor must Inform Customer of Danger of Contagion. It is the duty of an agistor to know the condition of the cattle in his pasture, and if he knows that any of them are affected with a contagious disease, and does not so inform a customer, whose horse contracts the disease and dies, he will be held responsible for the loss.1 (3) Duty to Maintain Good Fences-Agistor must Keep Pasture Inclosed.-A person who takes cattle to pasture must keep his ground properly inclosed, and free from dangerous places and obstacles. If the fence is in bad condition at the time he receives the cattle, he should repair it at once. He is bound to put and keep it in order, even though the owner of the cattle sees that the fence is bad; for the owner has a right to expect that this will be done, and need not make it an express condition of the contract, the condition being implied in the contract for agistment. Failure to exercise ordinary care in maintaining reasonably good fences to keep the stock in, would render the agistor liable for the immediate damage occasioned by the escape of the stock by reason of such negligence.2 Failure of Adjoining Owner to Keep Up Fence. The agistor is not excused by the failure of the adjoining owner to properly maintain his portion of the division fence.3 to withdraw the cattle at any time when they might be liable to loss on account of lack of grass and water, and to pay at the rate agreed upon for the time already expired. M claimed that the supply of grass and water became exhausted before the end of eight months, so that a number of cattle died from starvation, and the remainder became poor and unfit for market, he being also put to the expense of moving them before he was prepared to do so. It appeared that the pasture was of sufficient area and open to the inspection of both parties, and all the time the cattle were in the pasture it contained both grass and water. It was held that the contract did not bind C to furnish pasturage for the full eight months, or render him responsible for the continuance of the supply, but that the owner expressly reserved to himself the right of determining as to these things, and of protecting himself from loss by withdrawing the cattle at any time. M was required to pay for the time the cattle were in the pasture, without any allowance for his alleged loss. Menly v. Čorkill, 75 Tex. 599. 1. Agistor must Inform Customer of Danger of Contagion.-Costello v. Ten Eyck, 86 Mich. 348. In this case the defendant, a pasturer of horses, received the plaintiff's mare to pasture. The mare remained in the pasture about three weeks, when the plaintiff learned that the horses in the pasture had distemper. It appeared that certain persons having horses in the pasture had removed them, by reason of the prevalence of this disease, and that the defendant was acquainted with this fact when he took the plaintiff's mare to pasture, but gave no notice of it to the plaintiff. The plaintiff removed the mare on learning of the existence of the distemper, but she soon afterwards died in consequence of the disease. It was held that the plaintiff could recover. See also Eaton v. Winnie, 20 Mich. 156, 4 Am. Rep. 377 Texan Fever.-In Gibbs v. Coykendall, 39 Hun (N. Y.) 140, affirmed in 116 N. Y. 666, an action was brought to recover for the loss of cattle which the plaintiff had hired the defendant to pasture upon his farm. The cattle were sound and in good condition when turned into the pasture, but shortly afterwards became sick, and died of Texan fever, contracted from poisonous and infectious matter left in the field by Texan cattle which the defendant had previously pastured therein, of which fact the plaintiff was ignorant. It was held that as the jury found that the defendant was not aware, at the time of receiving the plaintiff's cattle, that there was danger of native cattle contracting the disease by being pastured upon fields previously occupied by Texan cattle, he was not liable for the damages sustained by the plaintiff, and that the liability of native cattle to contract this disease, under such circumstances, was not sufficiently known among the farmers of New York to charge the defendant with knowledge of that fact. 2. Agistor must Maintain Good Fences.Broadwater v. Blot, Holt 547; Halty v. Markel, 44 Ill. 228, 92 Am. Dec. 182; Cecil v. Preuch, 4 Martin N. S. (La.) 256, 16 Am. Dec. 171; Gibbs v. Coykendall, 39 Hun (N. Y.) 142; Tewksbury v. Bucklin, 7 N. H. 518, Pub. Stat. 1891, c. 143, §§ 15-16; McAuley v. Harris, 71 Tex. 631; Sargent v. Slack, 47 Vt. 674, 19 Am. Rep. 136. Duty to Provide Safe Housing-It is the duty of one to whom sheep are let for a rental payable in wool and a share of their increase, under a contract calling for their return, unless they died without his negligence, to provide such sheep sheds as an ordinarily prudent farmer would keep his own sheep in; and where the sheep die from the effects of the damp and wet condition of the sheds into which they were put, through the bailee's negligence, he is liable. Wolsheid v. Thome, 76 Mich. 265. 3. Lyons v. Merrick, 105 Mass. 71; Sargent v. Slack, 47 Vt. 674, 19 Am. Rep. 136. As to Injuries of Cattle by Barbed wire Fences, see Pim v. Griffith, 3 Pa. Co. Ct. Rep. 177. (4) Injuries by Other Animals-Agistor Responsible for Such Injuries when Negligent. -An agistor will be held responsible for injuries inflicted by other animals in his pasture, upon cattle intrusted to him, where such injuries are the result of negligence on his part. When Knowledge of Dangerous Disposition Necessary. Whether knowledge of a vicious disposition in an animal is necessary to render the agistor liable for injuries resulting therefrom, depends upon whether the animal is one usually dangerous or not. In case of animals not generally mischievous or dangerous, knowledge of such a disposition must be shown to render the agistor liable; but where the animal belongs to a class usually vicious, the scienter need not be proved, and the keeper will be presumed to be guilty of negligence.1 Thus, where an agistor knows of the vicious disposition of a horse, he will be liable for injuries inflicted by it upon other animals in the pasture; but where a colt was killed by a vicious bull which had access to the pasture, the agistor was presumed negligent, although he was unaware that the bull was dangerous.3 (5) Negligence-Burden of Proof.-In an action to recover damages for loss or injury to animals while in the care of an agistor, it seems to be the better doctrine that the burden of proof is on the owner to show that such loss or injury was caused by the negligence of the agistor in caring for the animals. 1. 1 Thomp. on Negligence, pp. 201, 204, 208; Smith v. Cook, 1 Q. B. Div. 79; Schroeder v. Faires, 49 Mo. App. 470. See also the titles ANIMALS; INJURIES TO ANIMALS. 2. Agistor Liable when Aware of Danger of Injury. A delivered a yearling colt to B to pasture, but the colt became sick with distemper, and B got A to take it away with the understanding that it was to be returned. After several months, he told A to turn the colt back into the pasture, which he did. Unknown to A, B had then in the pasture a dangerous and vicious horse, which kicked the colt in the leg, breaking it, so that it was necessary to kill the colt. It appeared that B knew of the vicious disposition of the horse. It was held that B was liable for the death of the colt. Schroeder v. Faires, 49 Mo. App. 470. 3. Knowledge of Vicious Disposition Not Necessary in Case of Animals Generally Dangerous, -The plaintiff sent a colt to be pastured by the defendant. The colt was placed in a field with several heifers, and some days afterwards was found dead, apparently gored to death by a bull. A bull was kept on land adjoining the pasture, there being only a shallow ditch between the two fields. The evidence showed that the bull had been several times found on the defendant's land, but it did not appear that the defendant knew that the bull was of a vicious disposition. It was held that the plaintiff could recover for the loss of the colt. Smith 7. Cook, 1 Q. B. Div. 79. 4. General Rule-Burden of Proof on Owner to Show Negligence.-Story on Bailm., §§ 213278-454; 2 Story on Contracts, § 902, 5 Am. L. Rev., p. 224; Broadwater v. Blot, Holt 547; Wood v. Remick, 143 Mass. 453; Maynard . Buck, 100 Mass. 46; Dennis 7. Huyck, 48 Mich. 622, 42 Am. Rep. 479; Rey v. Toney, 24 Mo. 600, 69 Am. Dec. 444; McCarthy v. Wolfe, 40 Mo. 520; Calland . Nichols, 30 Neb. 532 Kemp v. Phillips, 55 Vt. 69. Burden of Proof Not Shifted -In an action on the case against a bailee for negligence in ill treating and improperly caring for the plaintiffs' hired horse, the plaintiffs conceded that the burden of proof in the first instance was on them to show that the horse was injured through the negligence of the defendant; but they claimed that they discharged that duty by showing that the horse was delivered to the defendant in sound condition, and returned injured in a way that does not usually occur without negligence; and that having shown this, the burden was shifted to the defendant to show that the injury was not due to his negligence. The court held that this might have been sound law, had it been the defendant's duty to return the horse in the same condition in which he received it; but his duty was performed if, during the bailment, he had exercised due care and been guilty of no neglect in his treatment of the horse. In this case he would not have been liable, although he might not have returned the horse at all. This being the measure of his duty, the burden was on the plaintiffs to show negligence, and rested on them throughout the trial. Malaney v. Taft, 60 Vt. 571, 6 Am. St. Rep. 135. Compare Collins v. Bennett, 46 N. Y. 490, cited in Leach v. French, 69 Me. 393, 31 Am. Rep. 296. There Is, Perhaps, No Absolute Rule for determining in every case upon whom the burden of proof rests, whether upon the bailor to establish the negligence by which the property was lost, or upon the bailee to show that the loss was without any neglect on his part. Sometimes it depends on the form of the action and upon the stage of the cause upon which the question arises. In an action of trover, the plaintiff may rely on a demand, and refusal of the property, and thus put the opposite party on the defense; but in an action of assumpsit, or an action on the case founded on negligence, the plaintiff must make out a prima facie case as he charges it, for it is a general common-law principle that every person is presumed to do his duty until the contrary is shown (Story on Bail., §§ 213, 278, 2. To Third Persons for Damage Done by Animals-Agistor Liable when Negligent.— An agistor is liable for all damage done to third persons by animals in his care and under his control, where such damage is occasioned by his negligence.1 410, 454). It is also said that when the thing bailed is lost or injured, the bailee is bound to account for such loss or injury; but when this is done, the proof of negligence or want of due care is thrown on the bailor. Per Richardson, J., in Winston v. Taylor, 28 Mo. 82, 75 Am. Dec. 112. See also Schoul. on Bailm. & Car., § 23; 2 Parsons on Contracts, 125 note, 144; Cross v. Brown, 41 N. H. 283; Foote v. Storrs, 2 Barb. (N. Y.) 326; and see generally the title BURDEN OF PROOF. Duty of Bailee to Account for Change or Loss of the Thing Bailed.-If a bailee receives an animal in good condition, and returns it in an injured state, or fails to return it at all, it has been held in some cases that he must show how the change or loss occurred. Cumins v. Wood, 44 Ill. 416, 92 Am. Dec. 189; Funkhouser v. Wagner, 62 Ill. 59; Burlingame v. Horne, 30 Ill. App. 330. And so in cases of gratuitous bailment. Baren v. Cain, 15 Ill. App. 387; Bennett v. O'Brien, 37 Ill. 250. See also Arnot v. Branconier, 14 Mo. App. 431; Cummings v. Mastin, 43 Mo. App. 558; Belanger v. Quiner (Quebec), 9 R. L. 530; S. C. 1879. 1. Liability to Third Persons for Damage by Agisted Animals-Smith v. Jaques, 6 Conn. 530; Weide v. Thiel, 9 Ill. App. 223; Ward v. Brown, 64 Ill. 307, 16 Am. Rep. 561; Frammell. Little, 16 Ind. 251; Weymouth v. Gile, 72 Me. 446; Sheridan v. Bean, 8 Met. (Mass.) 284, 41 Am. Dec. 507; Reddick v. Newburn, 76 Mo. 423; Tewksbury v. Bucklin, 7 N. H. 518; Noyes v. Colby, 30 N. H. 143; Rossell v. Cottom, 31 Pa. St. 525; Moulton v. Moore, 56 Vt. 700. Damage by Bull.-In case of an action for damages done by a bull in charge of a bailee, it was held that if the bailee knew all about the animal, it was his business to keep him secure, but that he was only bound to keep him in an enclosure reasonably secure for that purpose, when not interfered with by the agents of the party claiming damages. Weide 7. Thiel, 9 Ill. App. 223. An Agistor of Sheep was held liable for damages where the sheep, while trespassing on the plaintiff's land, communicated to his sheep a contagious disease from which many of them died. The action was for trespass for breaking the plaintiff's close, and evidence of the communication of the disease was admitted to enhance the damages. It was not necessary for the plaintiff to prove that the defendant knew that his sheep were diseased, but he might do so to increase the amount of recovery. Barnum 7. Vandusen, 16 Conn. 200. Stock Breaking Pasture.-A had possession and control of a pasture containing stock belonging to himself and others. The stock broke down the division fence, and entered the adjacent corn fields of B, and destroyed the corn. A was held liable for the entire damage, on the ground that the stock was ex clusively under his control. Reddick v. Newburn, 76 Mo. 423. In an action brought to recover for damages done by a horse, which the defendant was pasturing for hire, and which escaped by his negligence into the plaintiff's field, the judge instructed the jury that the defendant was responsible, so far as the damage resulted from the horse's conducting himself as an animal ordinarily would do, and might fairly be expected to do; but so far as the damage resulted from some peculiar viciousness of the animal, he would not be responsible. Colt, J., held that the defendant had no ground of exception, and said in delivering the opinion of the court: "The owner of an animal, or the person who in his place, and by contract with him, has the exclusive custody and control of it, is liable for injuries which he negligently suffers it to commit. The liability stands wholly upon the ground of actual or presumed negligence. If the injury is committed while trespassing upon the lands of others, the owner is chargeable, and is responsible for the damage which directly results therefrom as the natural and probable consequence. In other cases he may be liable, although there is no trespass, and the animal is rightfully in the place where the mischief is done, as where the injury comes from the vicious disposition or mischievous habits of the animal, of which the owner had previous actual notice; or where, without actual notice, the disposition and habits are so universal among the species that notice is presumed, as in the case of wild and savage beasts. The owner or keeper of such animals, with actual or implied notice of their character, is bound at his peril to keep them, at all times and in all places, properly secured, and is responsible to any one who, without fault on his own part, is injured by them." Lyons v. Merrick, 105 Mass. 71. See also Wilkinson v. Parrott, 32 Cal. 102; Cook v. Morea, 33 Ind. 497; Marsel v. Bowman, 62 Iowa 57; Smith v. Montgomery, 52 Me. 178; Brooks . Taylor, 65 Mich. 208; Marsh v. Jones, 21 Vt. 378, 52 Am. Dec. 67. Want of Compensation does Not Excuse Agistor. The agistor will be held liable for damage done by cattle in his charge on the cultivated lands of another, even though he receives no compensation from the owner of the cattle for pasturing them. Laflin v. Svoboda, 37 Neb. 368. Under the Fence Law the Term Owner Includes Agistor.-It has been held that the act rendering owners of cattle liable for damages done by their cattle on the fenced lands of another, apply also to all those having the care and control of the animals. Smith 7. Jaques, 6 Conn. 530; Barnum 7. Vandusen, 16 Conn. 200; Sheridan v. Bean, 8 Met. (Mass.) 284, 41 Am. Dec. 507; Laflin v. Svoboda, 37 Neb. 368. See also Reddick v. Newburn, 76 See generally the title FENCES. Mo. 423. III. LIABILITY of Owner for DAMAGE DONE BY ANIMALS-1. To Agistor. The owner of animals must notify agistors, or other persons dealing with them, of any vicious trick or habit his animals may have, or he will be responsible to such persons for any injury the animals may inflict on them in consequence of such vicious propensity.1 2. To Third Persons-Not Liable in General.-The liability for the trespasses of animals arises not from ownership but from possession, for only the person having possession of the animals can exercise control over them, and prevent them from doing mischief. It follows that the owner of animals in charge of an agistor is not liable for their trespasses.2 This seems to be the better doctrine, though some authorities give the party injured a right to proceed against either the agistor or the owner, at his election.3 1. Liability to Agistor.-Keshan v. Gates, 2 Thomp. & C. (N. Y.) 288; Campbell v. Page, 67 Barb. (N. Y.) 113. See also Story on Bailm., 391 a; Hadley v. Cross, 34 Vt. 586, 80 Am. Dec. 699. Definition of Vicious Propensity.-By vicious propensity is intended a propensity to do any act that might endanger the safety of the person or property of others in a given situation, not such only as would impair the utility of the animal for the purpose for which it is kept. Per Grover, J., in Dickson v. McCoy, 39 N. Y. 400. The vicious habits or propensities which the owner of an animal must, when known to him, guard against, are such as are directly dangerous, such as kicking and biting in horses, hooking in horned animals, and biting in dogs. He must give notice of such vicious habits to persons dealing with the animals, when he knows that serious injury might result if the animal should take occasion to indulge them. But this duty extends only to cases where the habits are ordinarily and directly dangerous to either person or property. Keshan v. Gates, 2 Thomp. & C. (N. Y.) 288. Negligence of Bailee Exonerates Owner.-The owner would not be responsible when the injury resulted from negligence on the part of the bailee himself. Bard v. Yohn, 26 Pa. St. 482. 2. Owner Generally Not Liable for Damages Done by Agisted Animals-Bac. Abr., Trespass, G. 2; 2 Roll. Abr. 546; Cooley on Torts, 340; Weide v. Thiel, 9 Ill. App. 223; Ward v. Brown, 64 Ill. 307, 16 Am. Rep. 561; Ozburn v. Adams, 70 Ill. 291; Reddick 7. Newburn, 76 Mo. 423. In an action of trespass brought against the owner of agisted cattle for breaking into the plaintiff's wheat field and damaging the wheat, it was held that the owner was not liable. Rossell v. Cottom, 31 Pa. St. 525. Thompson, J., said in delivering the opinion of the court: "No direct authority is to be found in our own books illustrative of the case, and but few in the older books; but it is said in 1 Esp. N. P. 387, title Trespass, that he who has the care, custody, or possession of the cattle who do the damage is liable to this action,' and adds 'as, if agisted cattle break into another's land, the agistor is liable to the damages.' Dawtry v. Huggins, Clayton 33, Trials per Pais 201. ***Dawtry v. Huggins is as follows: 'It was ruled upon an evidence, if A hath the custody of the goods of B, as here it was hogs put into the defendant's yard; if these do a trespass to the land of C adjoining, A shall be punished in trespass, and this though the owner's servant did wait upon them; and here it was proved the servant of A did also wait on them and serve them, therefore they were in his special possession; and the like matter was relied on in the case of Stephen Bateman of Wakefield for agist cattle, if they do commit trespass, the owner of the soil where, etc., shall answer for that trespass.' York Assizes, 1651. *** Neither Dawtry v. Huggins, nor Bateman's Case, Clayton 33, supports the doctrine that either the owner or agistor of cattle may, at the election of the injured party, be sued for the trespass of agisted cattle. They are authority to the contrary. *** But, independently of authority, it seems clear that the case is with the plaintiff in error. * * * The point of the argument is, that either [the owner or the agistor] may be made liable in trespass for the depredations of agisted cattle. This cannot be maintained by any legal logic. The reason of liability in such cases arises out of the legal requirements to take the necessary care and control of them, so as to prevent injury, which implies not only the duty but the right of control. *** It is not the ownership of the trespassing creature, but the possession and use, that raises the liability." If the Owner Retains the Care and Control of his Cattle kept on the land of another, he will be liable for their trespasses; but if the owner or occupant of the land has the custody, he and not the owner of the cattle, will be liable. Kennett v. Durgin, 59 N. H. 560; Tewksbury . Bucklin, 7 N. H. 518. 3. Both Owner and Agistor Held Liable.Sheridan v. Bean, 8 Met. (Mass.) 284, 41 Am. Dec. 507. In this case it was held that the common law gave the plaintiff his election to pursue either the owner or the agistor, at his pleasure, or to seize the cattle damage feasant, but the plaintiff can have but one satisfaction. To sustain this view the court cites 2 Roll. Ab. 546; Comyns's Dig., Trespass, c. 1; 20 Vin. Ab., Trespass, B. It is also claimed in opposition to Rossell v. Cottom, 31 Pa. St. 525, decided some years later, that Bateman's Case and Dawtry v. Huggins, Clayton 33, are not authority to the contrary, but that they do not touch upon the question of the owner's liability at all. Maine. This decision has been followed in Qualification of General Rule.-It seems that the owner will be liable in an action on the case, if he selects a careless or irresponsible agistor, or knows, or has reason to believe, that the cattle will commit the trespass when placed in his hands.1 IV. RIGHTS OF AGISTOR-1. Against Third Persons. By virtue of the fact that an agistor has the custody of the animals, and is responsible to the owner for their safe-keeping, he may maintain an action of trover or trespass against a stranger for wrongfully taking or injuring them while in his possession. Maine, in Weymouth v. Gile, 72 Me. 446. Here the defendant pastured five cows on land leased by him. While under his charge they escaped from his premises, and committed the trespass complained of. The court held the agistor and the general owner of the cattle liable for the damage. New Hampshire.-The same decision has been made in New Hampshire. Blaisdell v. Stone, 60 N. H. 507. New York. In New York, in a suit brought to recover for damage done on plaintiff's land by defendant's cattle, which were being pastured by the owner of the adjoining field, it appeared that the fence between the two fields had been divided, and the cattle came through a defect in that part of the fence which it was the duty of the agistor to repair. The court held that the defendant was liable, saying that the plaintiff could have recovered from either the agistor or the owner, but that it was no answer for the defendant to say that the plaintiff might have proceeded against another. Stafford v. Ingersoll, 3 Hill (N. Y.) 38. See also Atwater v. Lowe, 39 Hun (N. Y.) 150. 1. When Owner would Be Liable.-A agreed with the owner of cattle to pasture them for a certain sum per week, and afterwards, without the knowledge of the owner, made an arrangement with C, by which the cattle were to be placed in the field of C, adjoining A's field, the pay for pasturing to be divided between them. The cattle were first put in A's field, but the fence between the two fields was removed by A and C, and the cattle were allowed to run in both fields, and passed from C's field into that of D, through a portion of the division fence which C was bound to maintain, but which was insufficient to turn stock. While in the field of D, the cattle committed a trespass for which action was brought. The damage was done before the owner of the cattle knew that they had been turned into C's field. It was held that he was not liable for the damage, the court being of opinion that the owner might have been liable in case, had it been shown that he was negligent in selecting a reckless and irresponsible bailee, or had reason to believe that the trespass would be committed, neither of which facts appeared. Ward v. Brown, 64 Ill. 307, 16 Am. Rep. 561. Where the owner of a bull left him in charge of one D, who kept him in a well-fenced pasture which was sufficient to hold him for several weeks, and through the negligence of the appellee's sons the bull escaped and gored appellee's mare, it was held on the authority of Ward v. Brown, 64 Ill. 307, 16 Am. Rep. 561, that the owner was not liable, there being no evidence to show that he had been neg ligent in selecting an irresponsible bailee, or had reason to believe that the animal would commit the trespass when placed in his care. Weide v. Thiel, 9 Ill. App. 223. See also Reddick v. Newburn, 76 Mo. 423. Trespasses by Cattle in Possession of a Tenant. The owner of cattle is not liable for trespasses committed by them while in the possession of a tenant to whom the owner had rented both farm and cattle, and who had the sole custody and control of them when the in jury was done. The latter alone is liable. Van Slyck v. Snell, 6 Lans. (N. Y.) 299, followed in Atwater v. Lowe, 39 Hun (N. Y.) 150. See also Moulton v. Moore, 56 Vt. 700. 2. Agistor may Maintain Actions against Strangers.-Bouv. Law Dict., Agistor; 9 Bacon's Abr., Trespass, c. 457; 9 Bacon's Abr., Trover, c. 646; Story on Bailm., § 443; Hanover on the Law of Horses, § 416; Mason v. Morgan, 24 U. C. Q. B. 328; Smith v. Jaques, 6 Conn. n. 530; New York, etc., R. Co. v. Auer, 106 Ind. 219, 55 Am. Rep. 734; Hurd v. West, 7 Cow. (N. Y.) 752; Bass v. Pierce, 16 Barb, (N. Y.) 595; Betts 7. Mouser, Wright (Ohio) 745. See also Wilbraham v. Snow, 2 Saund. 47, note 1; Burton v. Hughes, 2 Bing. 173, 9 E. C. L. 368; Sutton v. Buck, 2 Taunt. 302; Magee v. Toland, 8 Port. (Ala.) 36; Auld v. Travis (Colo. 1895), 39 Pac. Rep. 357; Welty 2. Indianapolis, etc., R. Co., 105 Ind. 55; Poole v. Symonds, 1 N. II. 289, 8 Am. Dec. 71. A, having received a horse belonging to his brother to keep for the night, kept the horse in his stable for a short time, and then after dark turned it into his pasture, where he usually kept his own cattle. The next day the horse was found dead in B's field, from which A's pasture was separated by a fence which B was bound to maintain. It appeared that the fence was in bad condition, and the horse was killed in consequence of this by falling from one field into another. It was held that though A was a gratuitous bailee merely, he might recover from B the value of the horse. Rooth v. Wilson, I B. & Ald. 59. In Hare v. Fuller, 7 Ala. 717, the plaintiff was bailee of hogs of which he had the care and control. Some of them broke into the grounds of the defendant, which were insecurely fenced, and they were injured by the defendant by splitting their hoofs and setting the dogs on them. It was held that the plaintiff could recover damages from the defendant. Where A employed B to pasture his cow in the daytime, A reserving the use of her for his family, driving her from the pasture in the night and back in the morning, it was held that B was an agistor in the daytime, and could bring an action of trespass against |