DISEASED ANIMALS ; TRANSPORTATION, ETC. 347 



has no power to make regulations as to the removal of cattle 

 from the State in which contagion exists to other parts of the 

 United States-^^" 



A conditional ownership growing out of a lien will not 

 make one liable for damages for infection by Texas cattle un- 

 less he has the actual possession and control of the cattle. ^®^ 

 Where several owners of dififerent droves of cattle drove them 

 at different times over another's herding ground, by reason 

 of which the latter's cattle caught the disease, it was held that 

 there was no joint liability.-^^^ It is error to instruct the jury 

 that if cattle took a disease from one of two herds and the tes- 

 timony as to which herd is responsible is equally balanced, 

 they should find for the defendant, in an action against the 

 owner of one of the herds. If it is impossible to say that one 

 herd was more concerned than another, it seems the verdict 

 should be for the plaintiffs.^®^ 



The entry of diseased cattle into another's close by which 

 his cattle are infected is a trespass. -^^^ And where the sheep 

 of B. and C. were in the same pasture and A.'s sheep, getting 

 through an ill-kept division fence, infected B.'s sheep which 

 infected C.'s, it was held that C. could recover from A.,^^' and 

 that the fact that one of the plaintiff's sheep had communi- 

 cated the disease to the defendant's sheep would not exone- 

 rate the latter from liability.^®^ But the owner of infected 

 sheep pasturing them in his own lot adjoining the lot of 



"" Mullen V. Western Union Beef Co., 5 Colo. App. 497. 



As to the sufficiency of an indictment for shipping a cow into a State 

 without sending the Secretary of Agriculture a certificate that it was free 

 from tuberculosis, see State v. Snell (R. I.), 42 Atl. Rep. 869. See, also, 

 Howman v. Angus, 25 Rettie (Sc. Ct. Justic.) 8. 



"'Smith V. Race, 76 111. 490; Hatch v. Marsh, 71 id. 370. See, also, 

 § 104, infra. 



'" Yeazel v. Alexander, 58 111. 254. 



"" Frazee v. Milk, 56 111. 435; Newkirk v. Same, 62 id. 172. 



"*' Anderson v. Buckton, Strange 192. 



"" Herrick v. Gary, 65 111. loi. 



'" Same v. Same, 83 111. 85. And the plaintifif may recover though he 

 failed to treat the disease properly: Ibid. 



