Page:Federal Reporter, 1st Series, Volume 5.djvu/394

383 FEDEBAIi EEPOBTEJB. �made in the bill of lading. But the bill of lading is clean, and there is no evidence of any complaint whatever from the ship at the time, as to the condition of the cattle when going on board, In the next place, it is improbable that the owner of the cattle, who vas shipping them to be sold abroad on his own account, and who was personally present attend- ing to their shipment, would have brought them to the pier or perraitted them to go on board the vessel in an over- heated and exhausted condition. Inquiry would bave iu- formed him that the steamer was not to leave on the morn- ing tide, and, if his cattle had become overheated, is there any doubt that he would bave endeavored to delay their go- ing on board until the last moment ? Furthermore, the short distance which the cattle had come, the time taken in the driving, the early hour of the day, do not acccount for such a condition of the cattle as is described bytheclaimant's wit- nesses. That there was some beat is not doubted, and that from two to five of the cattle fell down and had water poured on them is proved, eut of which circumstance the witnesses have made as much as possible ; but the weight of the direct evi- dence in regard to the condition of the cattle, — one of the witnesses who proves the absence of exhaustion or undue heàt being an agent for the Society for the Prevention of Cruelty to Animais, without interest in the controversy, and present for the purpose of observing the condition of the cattle, — together with the undisputed facts, forbid the con- clusion that the condition of the cattle when put into the between-decks had anything to do with the subsequent sick- ness and mortality. �It should be further remarked that there is evidence from the libellant himself that only cattle composing the first divis- ion, and which the claimant's witnesses say were not over- heated, went into the between-decks. This testimony, if true, disposes of the question of overheat or exhaustion, and leaves the condition of the between-decks on Sunday the onl}'- visible cause of the subsequent sickness, beoause the sickness was confined to cattle in the between-decks. Here, again, however, an important point, as to which many witnesses ����