but may not kill them, unless it be for the immediate protection of human life, and, as it would appear from the later decisions, great damage to property.1

1 Ibid; Morse v. Nixson, 6 Jones N. C. 293, which was a case in which a hog was killed while chasing the defendant's chickens; it was shown that the animal was predatory, and had acquired the reputation of being a “chicken-eating hog”; and it was alleged to have been a nuisance, because of its propensity to eat chickens. The Court did not sustain this position, but held that "the position that such a hog is a public nuisance, and may be killed by any one, is not supported on principle or authority, and, if recognized, would lead to monstrous consequences. Allow such a right, and the peace of society cannot be preserved. It is provoking to see an old sow trying to catch young chickens, and snapping up one every now and then in spite of the noisy protestations and energetic remonstrances of the hen; but it is not reason, and therefore not law, that so valuable an animal may be destroyed to save the life of an unfledged chicken. At all events, the danger must be imminent, and the necessity be fully made out." (Matthews v. Fiestel, 2 E. D. Smith, 90; Dodson v. Mack, 4 Dev. & B. 146.)

In a later case, (Williams v. Dixson, 65 North Carolina, 416) the action was trespass vi et armis. "The plaintiff owned an ass, which he knew to be dangerous, and in the habit of pursuing and injuring stock, and, with a knowledge of such vicious qualities, he permitted him to run at large. Held, that if such an animal is found pursuing a cow, which he threw down, and was in the act of stamping her, when the defendant, believing it was necessary to kill him to save the life of his cow, killed the ass, that defendant was justifiable.'

§ 192. Agistor's powers when animals are injured or stolen.

§ 184. General rules of bailment applicable to agistors. -One who takes animals to pasture at certain rates 1 is a bailee for hire of custody, and within the general rule applicable to such bailments.2 His contract with the owner of the animals is a hiring of care and attention, commensurate with the value and liability to injury of the animals intrusted to him; bailees of this sort, like other bailees upon a contract of mutual interest, are bound to ordinary diligence, and, of course, are responsible for losses by ordinary negligence.

By the Roman law, the agistor was made responsible, not only for reasonable diligence, but for reasonable skill in his business, which, indeed, is also true in the common law; he must, at his peril, know what are reasonable precautions against loss or injury to the animals, and take such precautions; ignorance of what is his proper duty is not only no excuse for a failure to discharge it, but is negligence, for which the law will punish by holding him responsible for resulting damages.3

§ 185. The agistor does not become an insurer of the animals left with him to pasture; if they stray from his premises, are stolen, or injured, he only is held responsible upon it being

1 Bouv. Law Dic. Vol 1, 105.

2 Jones on Bailments, 91, 92; Story on Bailments, Secs. 442, 443.

8 Dig. Lib. 19, Tit. 2, L. 9, Sec. 5; Pothier Pand. Lib. 9, Tit. 2, N. 29.

shown that the loss or injury occurred through his having failed to bestow upon them ordinary diligence and care; he only covenants to possess and exercise reasonable skill in his business, and he comes within the general rule given by Dr. Paley, in his treatise on Moral Philosophy: "He who undertakes another man's business makes it his own—that is, he promises to employ upon it the same care, attention, and diligence that he would do if it were actually his own, for he knows that the business is committed to him with that expectation; this he promises, and no more than this." 1

§ 186. Implied covenants by an agistor, to give due care, provide water, and not over-stock his land, result from the general rules on bailment applicable.

The covenant goes further than the language of the learned author, above quoted, in this, that it might well occur that the agistor gave such attention, skill, and care as he would have done had the property been his own, and yet fall short of the requirements of the law, for he might be a careless person, and habitually give to his own affairs less than a due amount of attention, skill, and care; the measure of the diligence required of him is, therefore, such as a prudent person would ordinarily give to his own business of a similar character, reference being had to local customs and usages, the value of the animals, their liability to injury or loss, and to the circumstances of each case. Thus, so over-stocking his land that proper pasturage for all the animals did not remain, willfully allowing them to be without water, negligently allowing his fences to remain in an insecure condition, or leaving open his gates so that the animals stray and are lost, are familiar instances of ordinary negligence, for damages resulting from which the agistor is liable.2

§ 187. Burden of proof on charge of negligence against an agistor.—As to where lies the burden of proof when negligence is the ground of a claim for damages, in the case of depositories for hire, where the property is lost or injured, the authorities are not agreed. In England, it is held that the

1 Paley's Moral Philosophy, Book 3, p. 1, Chap. 12.

2 Story on Bailments, Sec. 443; Jones on Bailments, 92; 1 Bell. Comm. p. 458, 5th Ed.; Ibid, Sec. 394, 4th Ed.

burden is upon the owner of the property; that he must assume the proof of negligence, rather than impose upon the defendant the necessity of showing that he has exercised ordinary, reasonable care.

The general presumption obtains that the party who contracts to perform the service will do so in an honest, proper manner; the bailee agrees to take such care of the property as he would do were it his own, and every one is presumed to take care of his own concerns, and there cannot be a doubt that negligence, in most of the different descriptions of bailees, should never be presumed.1

In the United States, however, this general proposition has not been universally acceded to, and the rule, by the later decisions, stands so far modified in practical effect that, although in an action against a bailee for loss of or injury to the subject of a bailment, the burden of proof of negligence rests upon the plaintiff; yet the nature of the accident, loss, or injury itself, may afford prima facie evidence of negligence. If it is one which, in the ordinary course of events, would not have happened but for the want of proper care on the part of the bailee, it is incumbent upon him to show that he took proper care and due precaution; and his failure to furnish this proof, which, if it existed, would have been in his power, may subject him to the inference that such precautions were omitted.2

11 Ph. on Ev. 605. Odiosa et inhonesta non sunt præsumenda (10 Rep. 56a.); Injuria non præsumuntur (Co. Litt. 2326.); Omnia præsumuntur legitime facta donec probatur in contrarium (Co. Litt. 232b.); Fraus est odiosa et non præsumenda (Cro. Cur. 550) are maxims of daily application in our Courts.

Schmidt v. Blood, 9 Wend. 268. "A warehouseman, not chargeable with negligence, is not responsible for goods intrusted to him, stolen or embezzled by his store-keeper or servant; and the onus of showing negligence lies upon the owner."

2 Boris v. Hartford & N. H. R. R. Co. 37 Conn. 272. "In the case of depositories for hire, where the goods are lost, the authorities are not agreed as to whether the burden of proof of negligence is on the owner of the goods, or of reasonable care on the depository. In England, it is held that the burden is upon the owner, but the Courts in this country have, in some cases, held otherwise."

Lichtenheim v. Boston & Providence R. R. Co. 11 Cush. 70. Goods on storage had been stolen. It was held that the warehouseman who fails to deliver property bailed to him is bound to show that the loss occurred without a want of ordinary care or diligence on his part, but not necessarily the precise manner in which the loss occurred, and the later English authorities tend to the same point. (Smith v. Cook, 1 Law Reports, 79, decided December 14th, 1875.) “An

§ 188. Agistor liable for trespass of animals, when.The agistor may become liable for trespass by the animals which he has in pasture. By the common law, a party into whose lands agisted animals escape, and there do mischief, may have his election against which party he shall maintain his action for the damage suffered. He may sue either the general owner of the animals, or the person who has them at pasture; and if the owner of the animals is, in the first instance, proceeded against, and he is forced by the law to make good the

agistor of cattle is liable for damages done through his negligence, by a vicious animal in his care, to another animal also in his care, although he may not have known the mischievous disposition of the former.

"Plaintiff delivered a horse to defendant, to be agisted, kept, and taken care of. The defendant placed the horse in a field with a number of heifers, knowing that a bull, kept on adjoining land, had several times been found in the field, and that there was no sufficient fence to keep it out.

"He, however, did not know that the bull was of a mischievous disposition. The horse was gored by the bull, and killed. Witnesses testified that it was imprudent to turn young horses among horned cattle; others, that there was no danger in such a practice.

"The Court left to the jury whether the defendant acted without reasonable and proper care in putting the colt in the field near the bull and with the heifers.

"Verdict for plaintiff.

A rule nisi was obtained to enter a nonsuit, on the ground there was no evidence of scienter.

"Held, that defendant was bound to take reasonable care of the horse, and that if it was killed through his negligence he was liable, and that the doctrine of scienter ought not to be extended to a contract to take reasonable

care.

"Rule discharged.

"Opinions by Blackburn, Quinn, and Field, J. J." (2 N. Y. Weekly Dig. 73, Mar. 6th, 1876; 3 Cent. L. J. March 24th, 1876.)

Alden v. Pearson, 3 Gray, 342. No demand is necessary before commencing an action for property lost or destroyed by persons having it in custody. Collins v. Bennett, 46 N. Y. 490. A horse was delivered by plaintiff to defendant to be kept and cared for, with express directions to take his shoes off, and give him only such exercise as could be done by leading him round by a halter, and to let him go bare-footed all winter; defendant violated these instructions by keeping the horse shod, and allowing his wife to use it, and by using it himself; the horse was foundered and rendered worthless while in defendant's possession, and when found by plaintiff to be in this condition was abandoned to defendant, and this suit was commenced for the value of the animal before injury. Held, that a bailee for hire who uses the property contrary to instructions of the owner, is liable for a conversion thereof. Where property in the exclusive possession of such bailee is injured in a way that ordinarily does not occur without negligence, the burden of proof is on the bailee to show that the injury was not caused by his negligence.

Russell Mfg. Co. v. New Haven Steamboat Co. 50 N. Y. 121. "The nature may itself afford prima facie proof of negligence.”