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Applying this rule to the sale of sheep which are affected by a malady which is infectious, where the sheep which have the disease are to be mixed with others which are sound, the damage, if the flock become infected, is not the mere difference between the value of a diseased sheep and a healthy one, but the loss sustained by communicating the disease to the whole flock.1

§ 156. Laws for protection of sheep from infectious diseases. Where there are statutes providing that any person who suffers sheep owned by him, and known to be infected by contagious disease, to run at large, or who keeps them in any place where other sheep can have access to or be infected by them, shall be liable to pay all resulting damages, the statute cannot be evaded by confining the recovery to any one sheep which is first infected, and from which the disease has spread. It may, and ordinarily must, be the case, that the disease is first communicated to one, or a very small number, of the flock originally free from the disease, and thence spreads to the flock with which such sheep, which have taken the disease, habitually run. The general rule, that immediate or proximate damages are alone recoverable, is not applicable to the extent that the owner of the diseased flock is only responsible for the damage which can be shown from immediate contagion from his sheep. The object

from the amount of the note; and the measure of damages will be the difference in value at the time the warranty was broken, and what its value would have been had the warranty been true." (McClure v. Williams, 65 Ill. 390.)

1 Jeffrey v. Bigelow, 13 Wend. 518. In this action, an agent of defendant sold to plaintiff a flock of sheep consisting of 500 ewes and seven bucks, which were mixed by plaintiff with a flock of 548 sheep which he before owned. Shortly after the sale, the disease called the "scab" made its appearance among the sheep bought as above related, and spread throughout the flock, so as to cause damage to the amount of $1,525.

On the trial, it was proved that "scab" is a contagious disease, and that by putting a few sheep diseased with scab into a healthy flock the whole will become affected; that defendant bought sheep for the purpose of selling them again; that of the lot sold by defendant to plaintiff, there was a flock of 120 sheep which defendant had bought for a less price than the market value of sound sheep, because of the lot there were from 35 to 55 known to have the scab. No information of the fact that the sheep were diseased was communicated by the vendor to the purchaser, and upon these facts the Court held the seller of the diseased sheep liable, not only for the loss of those sold which died, but also for the entire loss in the whole flock. (Sedgwick on Measure of Damages, Secs. 90, 91; Bradley v. Rea, 14 Allen, 20; Mullett v. Mason, Law Rep. 1 C. P. 559; Knowles v. Nunn, 14 L. T. [N. S.] Q. B. 592; Faris v. Lewis, 2 B. Monroe, 375.)

of the statutes is to afford protection to flocks of untainted sheep, by imposing extraordinary care upon those persons who have sheep which are affected by contagious disease; and such statutes are not to be defeated by any such hair-splitting refinements as would restrict the amount of damages to the injury done to individuals of the flock directly affected by contagion with the flock originally diseased.1

As to the amount of care and skillfulness of treatment which the person whose flock has been injured by infection should exercise, it would appear that, it being made to appear that the sheep, otherwise free from disease, have been rendered ill and affected by disease by infection or contagion, it does not lie with him from whose flock the disease has spread to complain that he whose flock has been injured did not employ persons specially skilled to treat his sheep, or to take extraordinary means to seek remedies for them. If such a duty devolves on any one, it is upon the owner of the sheep from which the disease spread; he having caused the injury, is morally and legally bound to do all possible to repair it; the duty is upon him, and he cannot impose it upon a person guilty of no wrong.2

§ 157. Duty of shepherd and agistor of sheep. The care of sheep, when they are in charge of a servant or bailee, should be such as their peculiar nature requires; and negligence in giving such care is a proper basis for an action of damages on the part of the owner, when he suffers from the lack of due attention being given to his sheep.

If the sheep are let out to pasture for a price, the bailment is for the benefit of both parties. In bailments of this kind, the bailor yields his present custody and care of the property to the bailee upon a contract implied by the law, by which he who

1 Herrick v. Gary, 65 Ill. 104; Mount v. Hunter, 58 Ill. 246. "Under the Act of Feb. 16th, 1865, relating to diseased sheep, it is clear that the owner of sheep having contagious disease has no right to let them run, even upon his own land, where they can communicate disease to sheep lawfully pastured in an adjoining field." (Ibid.)

2 "Where a plaintiff's sheep are infected from the sheep of defendant, the former will not be held responsible for more than ordinary care and skill in their treatment; but even if they could have been cured by proper care and treatment, this will not exonerate the defendant from the liability for the trouble and expense incurred by the plaintiff." (Herrick v. Carey, 65 Ill. 101-5; Mount v. Hunter, 58 Ill. 249.)

takes the animals on pasture agrees to exercise ordinary diligence in respect to the property bailed, and if any loss result from his failure so to do, he is liable for such loss.1

§ 158. Sheep taken on shares.-The ownership of sheep "taken on shares" may become matter of controversy, from the peculiar property which each party to the contract has in the flock.

As a rule, the increase of animals belong to the person who owns the mother; but this rule becomes modified by circumstances, and such occur where sheep are taken to be pastured and cared for, in consideration, on his part who takes them, of becoming the owner of a part of the increase.

Until the division of the young is made, the parties are tenants in common as to them; but, so soon as to each is set apart his share, the interest of the other ceases, and the tenancy in common ends.

But the change of ownership, by which the bailee becomes part owner in the subject of the bailment, depends greatly upon

1 Story on Bailments, Sec. 443; Ibid, Sec. 429; Jones on Bailments, 91, 92. Phelps v. Parish, 39 Vermont, 511. In this action, the plaintiff sued for a pasturage bill of $41.43. He had pastured for defendant certain cattle and sheep, and the amount claimed was the balance of the money due therefor. The defendant, as his defense, showed that plaintiff kept certain bucks, and so carelessly guarded them that they inopportunely got at defendant's ewes, and the consequence was that sixty of the ewes had lambs in the latter part of January, and "fifty-six of the lambs died, by reason of having so unseasonable a birth." The defendant, upon this showing, claimed that these facts constituted a breach, by the plaintiff, of the contract under which he kept the sheep and cattle, and that he, the defendant, should be permitted to recoup the damages resulting from such breach of the plaintiff's contract.

The Court sustained defendant upon this proposition, and said: "The parties having made no express contract as to the care and diligence which the plaintiff should exercise, the question arises, what obligations are imposed by law in this sort of bailment ? It seems clear that the general principles of the law of bailment required the plaintiff to exercise the care and diligence, in respect to the property, which men of common prudence, under the circumstances, exercise about their own affairs. The exercise of this degree of diligence is not limited to the feeding of the animal, and the use of means to prevent it from straying, but the law requires its exercise by the bailee so far as shall be necessary to prevent such injury to the property as would be likely to result from ordinary negligence."

Upon the question of recoupment, the language of the decision is: "The damages result from the breach of the very contract which the plaintiff seeks to enforce," and the damages resulting from his breach of contract ought to affect his recovery under it.

the fulfillment of his part of the contract. There is a sort of conditional sale, by which he acquires no immediate interest, but may, at a future time, do so by compliance with the conditions stipulated. These conditions, where none are expressed in the contract, are implied by the law to be that he will exercise reasonable care-such as a prudent man would ordinarily do in protection of his own similar property-and he should be held to a fair showing of such care before any title vests in him.1

§ 159. Rights of owner and bailee of sheep as to third parties. For injuries to sheep let out on shares, it would seem that either the owner of the flock or he who has it on shares

1 Bradley v. Arnold, 16 Vt. 382. This case was upon a written indenture, to the effect that plaintiff leased to one John Hunt certain lands and 500 sheep for the term of sixteen years, on condition that Hunt delivered to him, each year, one thousand pounds of the wool; and at the end of the term, this covenant having been complied with, Hunt was to become the owner of all the sheep and their increase.

The wool was duly delivered for five years; but on the sixth year, after the sheep were sheared, and the wool was in Hunt's possession, it was attached and sold under process on a judgment against Hunt.

This proceeding terminated the relation between the parties; and, upon the claim of the defendant of an interest in the flock, consisting of the original five hundred and their increase, the Court held that, "by the terms of the lease, the plaintiff must be considered the owner of the sheep until the expiration of the full term of the lease, and the performance of all the stipulations contained in it." (West v. Bolton, 4 Vt. 558; 2 Kent, 4th Ed. 498; Barrett v. Pritchard, 2 Pick. 512; Dennis v. Belt, 30 Cal. 247; Rourke v. Bullens, 8 Gray, 549.)

Robinson v. Haas, 40 Cal. 474. The plaintiff owned a large number of sheep, and contracted with one Rood to keep them for a certain length of time, upon the terms, that, at the end of that time, the original number of sheep should be made good to plaintiff out of the flock, and the increase, if any, divided between plaintiff and said Rood.

Rood took the sheep, and sold the flock to defendant, without informing plaintiff of his having done so. Plaintiff, upon being informed of what had been done, demanded of defendant the whole flock; which demand was refused by defendant, and thereupon plaintiff brought this action for the recovery of the sheep.

The Court held that the delivery of personal property to another, by the owner, to be taken care of and returned at a stated time, upon the terms that the latter is to be compensated out of its increase, is a mere bailment for the benefit of both parties, and does not divest the title of the true owner.

A contract between A and B, by which A transfers to B the possession of a flock of sheep, upon the terms that B should herd and take care of them for three years, at the end of which time he was to return to A the original number of sheep intrusted to him, and the increase be equally divided between them, does not form a partnership between A and B in the sheep.

may bring an action against a stranger: the bailee has a special property in the flock during the continuance of the contract, and he may protect that property by action from any tortious dispossession of it, or any injury to it. But, since the owner has also a general property, he also may maintain a like suit against the stranger. But, in such a case, a recovery by either, it seems, will bar the action of the other.2

There is observable a distinction in this respect between a letting on shares and the case where the flock is hired out for a money rental for a specified term; in the latter case, the later decisions are to the effect that the owner cannot maintain an action against a third person for interference with the flock.

The owner of animals let to hire cannot maintain trespass against a stranger who interferes with them. To entitle a plaintiff to recover for injury to personal property, it must appear that he has such a right as to be entitled to reduce the goods to his possession when he pleases; and where the owner has parted with his possession for a term, during that term he loses control of it, has no right to its immediate possession, and therefore cannot maintain trespass for injury to the property.3

§ 160. Wool, peculiar duties of vendor of. The sale of wool, from the peculiar manner in which it is packed, preclud-` ing very thorough examination by the buyer, has been a matter of judicial application of the general rules of sales of personal property, as to caveat emptor, warranty, and fraud. The real condition and character of the wool in the middle of the bale

1 Croft v. Alison, 4 Barn. & Ald. 590; Sudden v. Leavitt, 9 Mass. 104; Hall v. Packard, 3 Campb. 187; Story on Bailments, Sec. 93; Nicolls v. Bastard, 2 Cromp. Mees. & Rosc. 659.

2 Bac. Abr. Trespass, C; Ibid, Trover, C; 2 Black. Com. 396; Gordon v. Harper, 7 Term R. 9; Pain v. Whittaker, 1 R. & Mood. 99; Story on Bailments, 394.

3 Triscony v. Orr, 49 Cal. 612. "The demurrer to the complaint was properly sustained. Whether the action be deemed to be in the nature of trespass, trover, or trespass on the case, the complaint is defective in substance. The lease of the sheep constituted a bailment for hire, and during the term of the lease the lessee was entitled to the exclusive possession. The alleged trespass was committed during the term when the lessee was in the actual, and was entitled to the exclusive, possession as against the plaintiff, his lessor. It is well settled that a person having neither the possession nor the right to the possession of personal chattels, cannot maintain trespass or trover for injury done to the property." (Putnam v. Wiley, 8 Johns. 432; Hoyt v. Gaston, 13 Ibid, 141, 561; Hurd v. West, 7 Cow. 752; Orser v. Storms, 9 Cow. 687.)

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