#### J. Ogden O’Hair v. L. Dow Morris.

1. Burden of Proof—Sale of Diseased Animals.—Under the averments of the declaration, in this case the burden of proof is upon the plaintiff to prove that “ the hogs died of cholera,” and that the defendant at the time of exposing them for sale knew them to be afflicted with that disease, or had been exposed to it.

Action in Case, for selling diseased animals. Appeal from the Circuit Court of Edgar County; the Hon. Henry Van Seller, Judge, pre*394siding. Heard in this court at the November term, 1899.

Reversed and remanded.

Opinion filed February 27, 1900.

Dundas & O’Hair, attorneys for appellant.

Van Seller & Shepherd, attorneys for appellee.

Mr. Justice Harker

delivered the opinion of the court.

This suit was brought by appellant to recover damages from appellee for selling to him hogs afflicted with hog cholera.

The declaration charges that the defendant was the owner of twenty-five hogs which he sold £o the plaintiff; that the hogs were at the time of the sale apparently healthy but were in fact afflicted with cholera; that the defendant knew the hogs bad been exposed to that disease and were at the time afflicted with it, but sold them to the plaintiff as sound and healthy; that after the plaintiff had taken possession of the hogs and moved them to his premises they died of cholera, and communicated the disease to other of his hogs, of which they likewise died.

An issue was formed upon a plea of “ not guilty,” and a trial had, resulting in a verdict and judgment for the defendant.

A reversal is urged because of the errors of the court in ruling upon testimony, and in passing upon instructions to the jury.

Under the averments of the declaration, it devolved upon appellant to prove that the hogs died of cholera, and that appellee, at the time of exposing them for sale, knew them to be afflicted with that disease, or had been exposed to it. There is no proof whatever that the hogs died of cholera. For aught that appears in the record they may have died of some other disease.

The alleged errors of the court in ruling upon testimony do not relate to what disease the bogs died of, but to the knowledge of the plaintiff as to their being healthy. By no ruling of the court was appellant at all limited in proof of what disease the hogs died.

*395Some of the instructions are subject to criticism, but as no other verdict than that rendered could stand under the averments of the declaration and proofs, the judgment must be affirmed.