348 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC. 



another, also occupied by sheep, is not Hable if the latter 

 sheep catch the disease. •'^^ 



The owner of horses afflicted with a contagious disease has 

 no right to permit them to go at large in the highway or to 

 water them at a public tank used for watering sound horses, 

 and he should use prudence in placing them so far from a par- 

 tition between his and his neighbor's stable that contact with 

 the latter's animals is impossible. ^^* 



Where the defendant, knowing a horse tO' be glandered, 

 delivers him to the plaintiff to be kept in the latter's stable, 

 without telling him of the disease, and the latter's horses catch 

 it, the defendant is liable.^^'' So, where the defendant repre- 

 sents the horse to have recovered from distemper, knowing 

 that he still has it.^"" And where one was allowed to remain 

 on land as a mere licensee and his sheep were infected, and, 

 when he had gone, the owner moved on with his sheep, being 

 ignorant of the danger and assured by the other that there 

 was none, the licensee was held liable for the catching of the 

 disease by the owner's sheep. ^"^ 



With regard to scienter, the rule at common law is that if a 

 man knows an animal in his possession to be diseased and 

 allows it to stray and afifect another's cattle, he will be liable 

 to an action, although there is no special evidence of negli- 

 gence in reference to its straying, but that it is otherwise if 

 at the time the animal strayed he had no knowledge that it 

 was diseased : in that case he will not be liable, in the absence 

 of special evidence of negligence.*"^ That knowledge of the 

 disease on the part of the owner or his agent must be shown 



"" Fisher v. Clark, 41 Barb. (N. Y.) 329. 



'"Mills V. N. Y. & H. R. Co., 2 Rob. (N. Y.) 326, affirmed in 41 

 N. Y. 619. 



'"' Penton v. Murduck, 22 L. T. N. S. 371. 



'"" Fultz V. Wycoff, 25 Ind. 321, cited also, as to evidence of damages, 

 in § 107, infra. 



^°' Eaton V. Winnie, 20 Mich. 156. 



As to the liability of an agistor for contagion, see § 104, infra. 



"" Garrett Nuisances, 170; Cooke v. Waring, 2 H. & C. 332. 



