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accepted the consequences which might reasonably be regarded as likely to result therefrom; so, in selling cattle, the seller may know, or in reason be supposed to assume, that a farmer, drover, or other purchaser would probably put the animal with others of a like kind in his possession, and incur the risk of losing them all. If this occur, that the plague spreads from the diseased cow, the vendor, who, either by fraudulent declarations or silence, induced the purchase, ought to stand the loss.1

1 "The English Court of Common Pleas Division, in Smith v. Green, 33 L. T. (N. S.) 572, held, in an action for breach of warranty, the plaintiff may recover damages for any injury which is the direct and natural consequence of his acting on the faith of the warranty. In the case under consideration, the plaintiff, a farmer, bought a cow from the defendant, warranted free from foot and mouth disease. The cow had the disease, and communicated it to plaintiff's other cows, with which she was placed. In an action for breach of warranty, the judge below told the jury if the defendant knew, or ought to have known, that plaintiff, in the ordinary course, would put the cow with other cows, they might give damages for the loss of the other cows; and the Court on appeal held this to be a right direction." (Chicago Legal News, Jan. 22d, 1876.)

Mullett v. Mason, (L. Repts.) 1 Common Pleas, 559. In this case, the defendant had a cow which had been imported into England from parts beyond the seas, and was suffering from a disease which was infectious; he induced plaintiff to buy the 'cow by falsely representing to him that the cow had been raised on his father's farm in the neighborhood, by concealing from him the fact that the animal was diseased, and informing him that it was free from disease.

The plaintiff, relying upon these representations, paid a fair price for and took the cow to his premises, and placed it with his other stock. In a short time it became manifest that the cow had the plague, and had infected with that disease five other cows belonging to plaintiff before it was discovered by plaintiff that his stock was in danger; these five other cows died, and the one bought became worthless.

Plaintiff was held entitled to recover the value of the five which died, as well as that which he had bought, on the ground that “in an action for fraudulent misrepresentation, the plaintiff may recover damages for any injury which is the direct and natural consequence of his acting on the faith of defendant's representations."

In Jeffries v. Bigelow, 13 Wend. 518, in a case of fraud, where an agent, authorized to sell a flock of sheep, sold a portion of them with knowledge that they were diseased, and the diseased sheep were mixed with another flock, it was held that the claim of the purchaser against the principal was not limited to the loss of the sheep purchased, but extended to that of the others to which the distemper was communicated; and the Court said: "This damage was the natural consequence of the fraudulent act of the defendant's agent." See, also, Knowles v. Nemus, 14 L. T. (N. S.) Q. B. 592, and Farris v. Lewis, 2 B. Monroe, 375; Sedgwick on Damages, 59, 100, 149. In Packard v. Slack, 32 Vermont, 9, it was held that it was not necessary to the recovery of the special damages to show that the vendor knew that the diseased animal was to be placed with others belonging to the plaintiff.

Winty v. Morrison, 17 Texas, was a case where a man sold a drove of horses, which he knew to be infected with a contagious disease, and concealed the fact

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§ 147. Laws to prevent importation of diseased animals. The prohibition of the bringing of animals affected by diseases which are infectious, is not an infringement of the right of the citizen to acquire, use, and dispose of property; neither is it such an exercise of legislative power by a State as to interfere with the enumerated powers granted to Congress, "to regulate commerce with foreign nations among the several States, and with the Indian tribes."1 Such enactments come within the scope of the police powers of the State, and the constitutional questions are but little, if any, more involved than by the exercise of ordinary police powers, by which the liberty of the citizen is limited for the public good. Each State has the unquestioned right to pass all laws necessary for the restraint and punishment of crime, the preservation of the public peace, and the health and morals of its citizens. By virtue of this power, the importation and sale of cards, dice, and billiardtables have been prohibited; the traffic in spirituous liquors regulated and suppressed; the vending of lottery tickets, the sale of unwholesome food or drink, and the making or manufacturing of poisonous candies, are made penal offenses.

So, under due exercise of the police power, property may be destroyed in time of conflagration, nuisances may be abated,

that they were diseased from the buyer, who bought for a sound price; the vendee, in exercising his right to rescind the contract, was held entitled to recover the money paid, with interest, and the value of his care, expenses, and attention in preserving the herd. If he should elect not to rescind, he would be entitled to damages equivalent to the value of such as had died and the difference between the value, at that time, of the surviving horses and the price paid for them, with interest on these sums from the date of sale; also the value of his care, time, and expense in preserving the herd. The buyer's damages are not, in such cases, confined to those actually diseased at the time, but the disease is regarded as infecting the whole herd, to the extent proved up to the time of trial. The latter is liable also for the damages sustained by the buyer to the extent of the contagion communicated to other animals of the buyer without his default. 1 Yeazel v. Alexander, 58 Ill. 254; Lenndville v. Marks, Ibid, 371; Davis v. Walker, 60 Ill. 452; Newkirk v. Milk, Ibid, 172; City of St. Louis v. McCoy, 18 Mo. 238; Same v. Boffinger, 19 Mo. 13; R. R. Co. v. Fuller, 17 Wall. 560; License Tax Cases, 5 Wall. 462; Slaughter-House Cases, 16 Wall. 62; Gibbon v. Ogden, 9 Wheat. 1.

R. R. Co. v. Gossway, Supreme Court of Ill. Jan. 16th, 1875. The act for the prevention of "Texas" or "Cherokee" cattle being brought into Illinois held constitutional.

"A common carrier is not bound to receive for transportation that which the law prohibits it from carrying, and it must be held, in this respect, to act at its peril." (Ibid.)

goods from a neighborhood where an infectious disease is prevailing may be prohibited from being brought into the State, and every species of infectious property, everything manifestly injurious to the public health or morals, may be prohibited or removed. Even the importation of gunpowder, not on account of any qualities of taint, but because of its explosive character, may be prevented. All such legislation would be a direct interference with trade, yet the power has never been questioned. It results from the law of self-preservation, which is inherent in every community. It is a right which pertains to the State exclusively; its exercise must be prompt, and, strictly speaking, occasional. From its nature it would not naturally have been parted with to the General Government, and it could not have been delegated. The State is under the same obligation, and has the same power, to protect the property of the citizen from disease and death, as to preserve its morals and health. A State powerless to do so would have none of the attributes of sovereignty, would be bereft of all merit to respect, and could retain no hold upon the citizen by affording him protection from danger.1

§ 148. Marks and brands, put by the owners thereof upon their cattle to distinguish them from those belonging to other persons, are, in many of the States, so far a recognized institution as to call for special legislation to surround the system with such guards by providing for the record of the distinctive marks and brands, by acts for the punishment of crime in those who shall kill cattle distinguished by special marks or brands with

1 "The police power is one of self-preservation, to be exercised by the State, in its sound discretion, for the interest and safety of its citizens. The necessity of the law is one of legislative determination. The character of the remedy in such case, when one is necessary, must be settled by the legislature. Whether the importation of the cattle should be permitted on conditions, or whether wholly prevented, were matters peculiarly within the province of the lawmaking power. There was danger to be apprehended to the property of citizens of the State; disease lurked upon her borders. Shall we inquire whether she acted wisely or justly? Shall we supervise the legislature, and substitute our discretion in place of the discretion exercised by the legislature? This we cannot do without touching upon the rights of a co-ordinate department of the State government. We are, therefore, of opinion that the legislature had the right, by virtue of the police power, to enact the law in question." (Yeazel v. Alexander, 58 Ill. 254; Somerville v. Marks, Ibid, 371; Davis v. Walker, 60 Ill. 542; Newkirk v. Milk, Ibid, 172; City v. McCoy, 13 Mo. 238.)

out preserving evidence thereof, and by divers other appropriate provisions, making the system of thus marking cattle a distinguishing element in all transactions affecting changes of ownership of them in such manner as to guard cattle from theft, which might otherwise be comparatively safe to the perpetrator.

Generally, the owner of stock who has adopted a distinctive mark or brand for his cattle, is required to record the same in the local records, and, when he makes sales, to "vent counterbrand by reversing the mark on the animals disposed of ; thus the purchaser is put upon his guard. The first mark indicates the adoption of it; the "vent," or counterbrand, shows that from the original owner, at all events, the transfer of property has been regular and valid.

Proper penalties to carry out the provisions and purpose of these acts are imposed to prevent infringements upon, and duly to enforce them as a part of, the respective criminal codes of the States in which they are in vogue.1

The alteration of marks or brands on cattle, fraudulently, for purposes of theft or other improper interference with the owner's possession of them, is also made a criminal offense, and dealt with, to some extent, in the summary manner by which, as a rule, the stealing of stock has been punished in the United States.

§ 149. Drovers of cattle who, for hire, undertake to receive animals at one point to be driven by them to another, as from the farm of the owner to market, are bound to use the same care in regard to the cattle intrusted to them which men of ordinary prudence would exercise over their property under the same circumstances. The farmer, ordinarily, would be un

1 Revised Code of Ala. (1867) p. 317; Comp. Laws of Ariz. p. 79, Sec. 65, and p. 589; Acts of Ariz. (1873) p. 92; Rev. Stats. of Col. p. 450; Political Code of Cal. Secs. 3167, 3172, 3184, 3185; Thompson's Dig. (Fla.) pp. 419, 492; Code of Ga. (1873) pp. 243, 795, 829; Laws of Idaho, p. 111; Nixon's Dig. N. J. 4th Ed. 16, Sec. 11; Genl. Stats. N. H. 220, Secs. 16, 17; Comp. Laws of Nev. Vol. 2, 460; Stats. of Nev. 1873, 99; Laws of Montana, 1871–2, 284, Sec. 78; Wagner's Mo. Stats. Vol. 2, 926; Stats. at Large of Minn. Vol. 1, 234, Sec. 84, 1002, Sec. 118; Rev. Stats. of Maine, 1871, 353, 627; Genl. Stats. of Kans. 1868, 1012; Laws of Iowa, Rev. of 1860, 259, 752; Stats. of Ind. Vol 1, 532; Stats. of Ill. Vol. 1, 178, 436, 262, 263; Id. Vol. 2, 259; Stats. of Tenn. 1871, Vol. 1, 803, 804; Laws of Texas, 2d Ed. 467, 468, 781, 782; Stats of Wis. (1872) 73; Laws of Wyoming, 2d Ses. 90; Id. 1869, 426, 427.

able, profitably, to drive stock which he has raised any considerable distance to a place of sale, and would not desire to sell them-unaware as he often is of their sale value-at his farm. Hence, the employment of a class of bailees for hire, known as drovers, has become a custom. Both parties are benefited by the bailment, and, while extraordinary diligence and care are not by the law imposed on the bailee, as he would be held to were he alone benefited, he will be liable if he fails to use such care as a prudent man would exercise over his own property under similar circumstances, and by reason of such neglect the cattle are lost.1

1 Maynard v. Buck, 100 Mass. 40. The defendant was a drover engaged in driving cattle from Brighton to various points between that place and Worcester. Plaintiff intrusted to him a pair of steers to drive from Brighton to Northborough for a stipulated price. On the way, the steers were lost or stolen, and the evidence left it uncertain whether the steers were in defendant's drove when he started, or were stolen from his yard, at Brighton, before he started. The defendant showed that he left his yard with a drove of one hundred and twentythree cattle; that he had, to help him drive, two men and a boy; that about dusk, at a point where the road was near a railroad, a train of cars passing by frightened and stampeded the drove into the adjoining fields; that, as soon as possible, he got them back into the road, and drove on to the stopping-place for the night; in the morning, nine animals, including plaintiff's steers, were found to be missing; that he proceeded with his drove, delivering cattle along the road, until he arrived at the end of his route at Worcester, two days after his departure from Brighton, and on the evening of the second day after the discovery of the loss. Early on the morning of the next day-which was two days after he became aware that the cattle were missing-he returned to seek them, but was unable to find the steers.

Plaintiff claimed that defendant ought to have gone at once, on discovery of the loss, to hunt the missing stock; but defendant showed that, to have done so, he must have detained the whole drove, at a great expense of feeding, and that the custom among drovers engaged in driving cattle for hire over this road, and others from Brighton, whenever it happened that a small number of cattle strayed from a drove and could not be found immediately, to proceed with the band to their destination, and then return and seek for such stray cattle. The admissibility of evidence showing these facts was questioned; but the Court, in holding it competent and relevant, said: "This must be determined with regard to all the circumstances of the case. Among these circumstances are the difficulty of pursuing a search while the drove in his charge was in mid-route, and the expense of maintaining the drove during the necessary or probable delay. The usual practice or mode of proceeding ordinarily adopted by drovers, under like circumstances, when engaged upon routes of no greater length from the same point, would have some bearing upon the question of what is ordinary care. It is involved in the comparison indicated by the term ordinary.”

The plaintiff further contended that defendant was negligent in leaving his yard unwatched; in not having more help to guard the stock from danger on the road; in approaching the railroad when a train was about to pass; in not counting the cattle when he left Brighton to start on the trip; in not again

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