294 
VETERINARY JURISPRUDENCE. 
all these had been reared from calves, but he spoke of the first lot at which 
lie looked. Oil the 24t,h of August, there was one beast that was diseased, 
but the rest were perfectly sound. Could it be held that a dealer was 
responsible for every head of cattle that might happen to die ? The war- 
ranty was not confined to cattle : it was given as to horses, and even in the 
case of an insurance upon life. Suppose a life, insured upon the 24th of 
August, exhibited on the 14th of October the symptoms of a latent disease, 
would it be an answer to the widow that there was an invisible germ of 
disease? The germ might exist, but this was not the disease itself. When 
disease did arise it was perceptible from the first moment of its existence. 
The disease was, in fact, an inflammation of the lungs, and could that 
disease in a horse be distinguished from the same disease in a cow? There 
was no law of science or art to show the rapidity with which such a disease 
progressed, but it was palpable that when it existed it developed itself. 
The fair of Ballinasloe was full of diseased beasts, and as the disease was 
contagious or infectious, there was an abundant opportunity for contracting 
it at the fair, even if the cattle had not been for several days travelling 
along the road to the farm of the plaintiff. What security was there if a 
man could be held responsible for the breaking out of any imperceptible 
“germ ?” The effect of such a stringent rule w r ould be, that every seller in 
Ballinasloe would have a board displayed near his cattle with these printed 
words, “These cattle are not warranted sound.” Were they to trust to 
such a warranty as that relied upon by the plaintiff, it would be a prolific 
source of litigation. “ Germ, virus, warranty,” would be three most 
magical, most potent words, to put money into the pockets of the bar of 
Ireland. If they sold a horse, and warranted him as sound, any man who 
understood the subject could pronounce an opinion as to its soundness; 
but here was a case where confessedly there was no appearance of disease 
when the cattle were sold ; and because they afterwards got distempered, 
the defendant was to be held responsible. It was a strange and most 
dangerous proposition. The learned counsel then called evidence for the 
defence. 
Walter F. M’Donough , defendant, examined by Mr. Ball, Q.C. — Resided 
near Balinasloe ; grazed about 1100 head of cattle in the year; sold three 
lots to the plaintiff at the fair ; they had been brought from his farm ; 27 
of the lot of No. 11 had been grazed upon the island of Innisshank, in the 
King’s County ; that lot consisted of 30 ; three of the lot were fed in Ros- 
common; there were two cases of distemper on the island, one in July, the 
other in August ; sold two at the fair of Eyrecourt to a butcher for £25 ; 
that butcher, whose name was Barrett, had gone to America , never had a 
sick beast since that day anywhere ; sold at Banagher 60 that had been 
grazing on the island ; they were perfectly sound ; sold 30 to Mr. Eyre, 
and 30 to Mr. Malone. 
Mr. M’Donough Q.C., objected to this evidence. Would Dycer in Dublin 
be permitted to give evidence that he sold 60 horses that were sound as an 
answer to an alleged breach of warranty in the case of an unsound horse ? 
Mr. Battersby, Q.C., pressed the question. 
The Lord Chief Justice ruled that the evidence was not admissible. 
Mr. Battersby , Q.C. , asked his lordship to take a note that he offered to 
give evidence that every head of cattle on the island was sound, and that he 
refused to admit that evidence. 
His lordship said that the plaintiff could not be expected to meet the 
case of the sales to other parties, but it was open to the defendant to give 
evidence to prove that all the cattle grazed on the island which were sold to 
the plaintiff were sound, and to give general evidence that the cattle grazed 
on the land were sound. 
