amount of damage done, he will have his remedy by action over against the agistor, if it appear that the trespass occurred by reason of his neglect or improvidence.

Under the common law, the owner or custodian of animals was bound to fence them in, rather than compel his neighbor to fence them out. The statutes of many of the States, and the rulings of the Courts in the United States, have established the converse of this as the rule; but if animals at pasture commit what the law makes an actionable trespass, the common-law rule yet remains in effect, that the agistor may be sued, or the owner of the animals be proceeded against, at the option of the party injured; in which latter case the owner of the animals would be entitled to recover from the agistor the amount which he had been obliged to pay, if the trespass can be traced to a neglect on the part of the bailee to take ordinary, reasonable precaution against the trespass.1

§ 189. An agistor has no lien, at common law, for the pasturage of the animals which have been left with him, unless an express agreement to that effect is made by the owner.

Where a person is bound by the law to do certain things, by which are imposed on him expense or trouble, upon or about

14 Kent's Com. 120, Note b. Sheridan v. Bean, 8 Met. 284. Certain horses which belonged to Bean were at pasture in Spencer's field. They trespassed upon the field of plaintiff, and the question submitted to the Court was whether the action of trespass, quere clausum fregit, would lie against the owner of animals at agistment, which have strayed from the agistor's field into the plaintiff's, and have done the damage complained of. It was held that he could, and the Court, by Hubbard, J., said: "In the case of trespass by cattle agisted, it is laid down, by approved writers of former times, that the party injured has his election to sue either the owner or agistor of the animals, though he can have but one satisfaction. 'Si mes avers sont en le gard de I. S. et durant cest temps font trespas al auter, il avera trespas vers moi on I. S. a son election, mes il navera satisfaction d'ambideux.' (2 Rol. Abr. 546, cites 7 Hen. IV, 316.) "While there is an apparent hardship in subjecting a person to the action of trespass, where the cause arises from the neglect of another, yet we cannot overlook the necessity of the checks which are required to guard against this species of trespass, which is not only so easily committed, but is so difficult to prevent; and we think our ancestors intended to give an ample remedy by subjecting the owner, the agent, or bailee, and the offending animals themselves, to making good the damages thus committed. Nor does the hardship appear so great when we consider that the owner has his remedy against the person whom he employs, and, if he does not obtain satisfaction for his loss, it is rather he who employed a negligent person that should suffer, than the man who is injured by such neglect."

the personal property of another, he has a particular lien upon the property; this lien is given by the law as an offset to the arbitrary requirement that the service shall be performed when requested, in certain trades and occupations, which, to accommodate the public, must be so carried on that all persons may rely on being duly served, as their necessities may demand.

Upon this ground, common carriers, inn-keepers, and farriers had a particular lien, by the common law, because they were bound, in the line of their respective employment, to serve the public. Although it is probable that the right of lien in their favor had its origin in the compensatory principle indicated, and as an equivalent for the obligation to serve the public, this right of lien is not now confined to that class of persons who are engaged in the quasi-public character mentioned, and, in a variety of cases, a person has a right to detain personal property which has been delivered to him to have labor bestowed on it, who would not be obliged to receive it, in the first instance, contrary to his inclination.1

1 Chapman v. Allen, Cro. Car. ; 2 Kent's Com. 635 and note d.

Goodrich v. Willard, 7 Gray, 183. An action in tort for conversion of cattle. At the trial, plaintiff showed that the cattle had been placed in his possession to be pastured; he claimed a lien on them for his bill for keeping them, and showed no other title. The Court held that plaintiff, as such agistor of the cattle sued for, had no such lien, and directed a verdict for defendant, on which, judgment was rendered for defendant, and plaintiff appealed.

The judgment was affirmed. The language of the Court, by Metcalf, J., was: "The sole question on these exceptions is whether an agistor of cattle has a lien on them for their keeping. He has by the law of Scotland, (2 Bell Com. 110) but the common-law authorities are uniform that he has not, except by special agreement with the owner." (Jackson v. Cummings, 5 M. & W. 342; Cross on Lien, 25, 332; 2 Saund Pl. & Ev. 2d Ed. 299.)

1 Dane, Abr. 232; Crinnell v. Cook, 3 Hill, (N. Y.) 491. "The right of lien has always been admitted where the party was bound by law to receive the goods, and in modern times the right has been extended so far that it may now be laid down as the general rule that every bailee for hire, who, by his labor and skill, has imparted an additional value to the goods, has a lien upon the property for his reasonable charges. This includes all such mechanics, tradesmen, and laborers as receive property for the purpose of repairing, or otherwise improving its condition. But the rule does not extend to a livery-stable keeper, for the reason that he only keeps the horse, without imparting any new value to the animal; and, besides, he does not come within the policy of the law, which gives the lien for the benefit of trade. Upon the same reason, the agistor or farmer who pastures the horses or cattle of another, has no lien for their keeping, unless there be a special agreement to that effect." But the question has recently undergone a good deal of discussion in England, and the result is that the old cases remain unshaken, and it must now be regarded as the settled

§ 190. An agistor has no lien as a bailee for hire, on the ground that his services have given an additional, special value to the animals which he has pastured.

It is now the accepted rule that every bailee for hire, who has given to the subject of the bailment an additional value by his skill and labor, has a charge upon the property for his compensation; thus, a miller who transforms wheat into flour, a tailor who makes the cloth into a garment, or the dyer who colors the cloth which is to be made into clothing, each give to the property a peculiar character or value, and this it is which is deemed to be their property, which, having a right to retain, the workman has a lien for.

But the agistor comes within neither of the classes of persons in whose favor a lien exists. He is not bound to receive animals on pasture; his is not, therefore, to the extent requisite, a public employment, and the necessity for his encouragement and protection, as such, does not exist. He gives by his labor or skill no additional value to the property, and hence all the standard authorities delare the rule to be that he has no lien for his compensation.1

doctrine that agistors and livery-stable keepers have no lien, unless there be a special contract to that effect. (Wallace v. Woodgate, 1 Car. & Payne, 575; Ry. v. Moody, 193, S. C.; Bevan v. Waters, 3 Car. & Payne, 520; Judson v. Ethridge, 1 Cromp. & Mees. 743.)

Miller v. Marston, 35 Maine, 155. "The doctrines of particular liens, as applicable to inn-keepers and those who are bound to receive goods, and to bailees for hire, who by their labor and skill impart additional value to the goods, have never been extended by the common law to keepers of liverystables or agistors of cattle." (Story on Bailments, Sec. 443.)

1 It must be acknowledged that the doctrine of the text does not stand without apparent contradiction at the hands of writers of acknowledged ability, and judicial decisions by Courts of last resort. Thus, in Sec. 440 of Story on Bailments is found the following language: "Thus, a tailor, who has made a suit of garments out of the cloth delivered to him, is not bound to deliver the suit to his employer until he is paid for his services. Neither is a ship-carpenter bound to restore the ship which he has repaired, nor a jeweler the gem which he has set, or the seal which he has engraved, nor an agistor the horse which he has taken on hire, until their respective compensations are paid." To this proposition the learned author cites 2 Roll. Abr. 92; Blake v. Nicholson, 3 Maule & Selw. 167; Chase v. Westmore, 5 Maule & Selw. 180; Ex parte Deese, 1 Atk. 228. But an examination of these authorities does not sustain the author in his deduction from them as to an agistor. The first, in effect, is against the proposition to which it is cited, and the others are silent upon it. Blake v. Nicholson declares a lien in favor of the printer who furnished paper and printed a work called Dr. Hawker's Commentary on the Bible, and in no wise touches upon the subject of lien in

§ 191. The agistor has a possessory interest in the animals which he takes to pasture, and in them has a temporary, qualified property. It is not an absolute property, because of his contract for restitution. He has a right of possession against every person except the true owner, and has, therefore, a cause of action against any person other than the owner, who may interfere with his possession, and can maintain trespass or trover against a wrong-doer for any injury to his possession, or any conversion of the property.1

§ 192. Agistor's powers when animals are injured or stolen. How far he may maintain the action for recovery of damages for injury to the animals agisted to him, has been matter of some doubt; on one hand, it is argued that if an animal agisted is injured or killed, through malice or actionable negligence on the part of a person other than the agistor, the agistor, having no interest in the animal, should, therefore, have no action, as he is not injured; that the action can, therefore, only be maintained by the person to whom the animal belongs, as he alone is damnified. On the other side, it is urged that the bailee is interested to the extent of his bailment; that it would be impossible for him to pursue the vocation of an agistor if the animals intrusted to his care might be injured, and he be powerless to prevent it by a wholesome fear, on the part of the wrong

favor of an agistor. Chase v. Westmore sustains a lien in favor of a miller, on the sole ground that he has, by his skill and labor, given a new and more valu→ able character to the property; and Ex parte Deese goes but to the length to declare that a lien exists for his compensation in favor of a packer of goods. Furthermore, the same author, in Note 3 to Sec. 443 of the same work, (Story on Bailments) says: "An agistor of cattle has no lien for their keeping, except by special agreement." From all of which it is proper to suppose that the language of Sec. 440, as to agistors, is the result of some oversight, clerical error, or misprint, rather than an intention on the part of the author to assume a position antagonistic to all the authorities, and to the note to Sec. 443.

It is true that, in some of the States, as in Nevada and Pennsylvania, there are express statutes giving a lien for board and pasturage of animals, and decisions have been rendered sustaining such statutory liens, but the general rule remains as given in the text.

1 Story on Bailments, Secs. 93 and 443; 2 Roll. Abr. 551; Sutton v. Buck, 2 Taunt. 309, per Chambre, J. "An agistor, etc., a factor, a carrier, may bring trover; even a general bailment will suffice, without being made for any special purpose, but only for the benefit of the rightful owner. It would be monstrously inconvenient if a wrong-doer could come and take things out of the possession of him who had the possession under the rightful owner."

doer, of being held responsible to him who, having the property in his immediate charge, can most promptly bring to bear the remedial or punitive power of the law.

The authorities appear to favor the latter view, and from the decisions of the Courts it seems to be now established, with reasonable certainty, that, for damage done to animals in his charge, the agistor may recover, and if the animals be stolen in his own name, cause the thief to be indicted.1

he

may,

1 Story on Bailments, Sec. 443; Burton v. Hughes, 2 Bing. R. 173; Rooth v. Wilson, 1 Barn. & Ald. 59. In this case, it appeared that plaintiff had his broth er's horse on pasture; the defendant owned and had possession of the adjoining land to plaintiff's pasture; and it was defendant's duty to maintain in repair the fence between the tracts; he neglected this duty; the horse got through the fence, and met with a fatal accident on defendant's premises. The liability to repair, the neglect to do so, and that, by said neglect, the horse was lost, were admitted by defendant, but in defense it was urged that plaintiff had not such a property in the horse as to entitle him to maintain this action. The learned judge who tried the case at nisi prius, however, suffered the case to proceed, and the jury found a verdict for the plaintiff.

An appeal was taken, and the judgment of the Court below was affirmed. The several judges wrote separate opinions, all concurring, and that of Holroyd, J., covers all the ground. His opinion is as follows: "The plaintiff was entitled to the benefit of his field, not only for the use of his own cattle, but also for putting in the cattle of others; and by the negligence of the defendant in rendering the field unsafe, he is deprived, in some degree, of the means of exercising his right of using that field for either of those purposes. Whether, therefore, the damage accrues to his own cattle, or the cattle of others, he still may maintain this action." (2 Blackst. Com. pp. 452, 453.)

Where cattle were alleged in the indictment to be the property of the person who, it appeared in evidence, was merely the agistor, and not the actual owner, the judges, held, "that he may maintain trespass against any who takes the beasts, all the judges agreed that the conviction was right." (Rex v. Woodward, 2 Easts, Pleas of the Crown, 653.)

And so where a horse is sold at a repository, the auctioneer may maintain trespass, or an indictment for larceny, in his own name, if it be stolen before delivery. (Williams v. Millington, 1 H. Bl. 81.)