DEFUE, Chief Justice. This was a suit by husband and wife to recover damages for an injury done to the wife, Mary Healey, who, on October 14th, 1898, was walking along the sidewalk on Christie street, a public street in the city of Newark. While she was in the lawful use of the street, a horse of the defendant was being led along the sidewalk by a halter by a servant of the defendant. The horse had no other harness. The plaintiff testified that she came from Ferry street into Christie street, and walked along the sidewalk on Christie street; that on the outer edge of the sidewalk and running parallel with Christie street is a wooden railing separating the sidewalk from the street; that while she was walking along the sidewalk she saw a man leading a horse by a halter coming towards her on the sidewalk; that as the man and the horse approached her she attempted to get out of the way of the horse by going a little further out towards the railing, when the horse kicked her. For the personal injuries she sustained this suit was brought, and resulted in a verdict in favor of the plaintiffs for personal injuries to the wife and for the damages sustained by the husband. There is no controversy as to the manner in which the accident happened. The plaintiffs neither allege in the declaration nor proved at the trial any mischievous propensity on the part. of the defendant's horse. The contention on the part of the defence was that in order to allow the plaintiffs to recover damages for the personal injuries, a vicious or mischievous propensity on the part of the animal must be shown and the scienter established. This question was raised first on motion to nonsuit, which was denied and exception taken. The learned judge, in his charge to the jury, dealt with this subject as follows: "It is said by the defendant that the plaintiffs ought to prove to you that the defendant knew that the horse was a kicker. I charge you that that is not the law, and that it is not necessary, in order for the plaintiffs to recover, for them to show that the defendant corporation knew of this bad propensity. . . . Did the stableman act negligently and carelessly in leading the horse along the sidewalk so near to the plaintiff Mary Healey that the horse could reach her with his hoofs?" To this instruction exception was also taken, and errors have been assigned accordingly. To sustain the contention of the defendant's counsel, reliance is placed on Cox v. Burbidge, 13 C. B. N. S. 430. In that case it appeared that the defendant's horse, being on a highway unattended, kicked the plaintiff, a child who was playing there; there was no evidence to show how the horse came on the spot, or what induced him to kick the child, or that he was accustomed to kick. It was held that there was no evidence from which a jury would be justified in inferring that the defendant had been guilty of actionable negligence. The familiar doctrine of the common law is that the owner of a domestic animal is not responsible for an injury done by it unless he has knowledge of the propensity or vice which induces the animal to do the injury, or has been guilty of some actionable negligence. The court, in disposing of the case, dwelt mainly on the fact that there was no evidence of an actionable wrong on the part of the owner of the animal. . . . In Ellis v. Loftus Iron Co., L. R. 10 C. P. 10, the defendant's horse injured the plaintiff's mare by biting and kicking her through the fence separating the plaintiff's land from the defendant's. It was held that the defendant was liable in damages, apart from any question of negligence on its part. The ground of that decision is stated in the opinion of Mr. Justice KEATING to be this: "The horse, it is found, kicked and bit the mare through the fence. I take it that the meaning of that must be that the horse's mouth and feet protruded through the fence over the plaintiff's land, and that would, in my opinion, amount in law to a trespass. . . ." Mr. Beven, commenting on these cases, used this language (Negligence, 97): "Although when a horse is in a place where it has a right to be, any disposition to kick that it may suddenly manifest does not import a liability on its owner; yet, when the horse is where it should not be, and kicks, the kicking is not so far remote from what is to be expected from the natural disposition of horses that the injury cannot be said to follow in the natural and obvious sequence from the original wrongful act which allowed the horse to get where an opportunity of doing injury is given.” . . . If the owner of a horse suffers it to go at large in the streets of a populous city, he is answerable for a personal injury done by it to an individual, without proof that the owner knew that the horse was vicious. Goodman v. Gay, 15 Pa. St. 188; see also Fallon v. O'Brien, 12 R. I. 518. . . . Mr. Wood, commenting on the case of Cox v. Burbidge, says: "The doctrine of this case does not commend itself to the Courts or profession as being consistent with reason or sound policy. The horse was unlawfully in the highway; the child was lawfully there, and there seems to be no good reason why the owner or keeper of the horse should not be responsible for the injuries inflicted upon the child while the horse was so unlawfully at large." Wood, Nuisance, 190. Judge Redfield, in discussing the case of Cox v. Burbidge, says that that case "has created some discussion in England and provoked some unfriendly criticisms, as it seems to us not altogether without reason. It seems almost incomprehensible that anyone should require proof that the owner of a horse was made aware of its propensity to do damage when running at large in the highway. If the horse was wrongfully in the highway and did damage in consequence to any person or thing rightfully there, the owner or keeper should be responsible, as it seems to us." 4 Am. L. Reg. (N. S.) 140, 141. It may safely be asserted that the decision of that case was contrary to the great weight of authority of this country, and it seems to us not sustained on principle or by preceding authority in England. The case of Cox v. Burbidge is, however, so clearly distinguishable from this case that, if recognized as authority, it would be inapplicable in this instance. In that case it was assumed by the Court and made the groundwork of decision that there was no evidence of an actionable wrong on the part of the owner of the animal; that it may have been in the street without any negligence of the owner, or might have been put there by a stranger, or might have escaped from some enclosed place without the owner's knowledge. In the present case the defendant's horse was in charge of a servant, for whose acts and negligence the defendant is responsible. . . . The Court instructed the jury that the plaintiffs could only recover by establishing by a preponderance of the testimony that the servant of the defendant was in some way careless and negligent at the time. Riding or leading a horse along the sidewalk, is a nuisance; for such an unlawful use of the sidewalk, an indictment would lie. It was assumed by the English judges, in their opinions in Hammack v. White, 11 C. B. N. S. 588, that riding and driving on the sidewalk as a voluntary act was unlawful, and that the defendant would be liable in damages for killing a man on the sidewalk, unless he showed that he was carried on the sidewalk by his horse, which was restive and uncontrollable. The cases from the courts of our sister States that have been cited are also to the same effect. . . . We think the instruction of the trial Court on this subject was correct. . . . We find no error on the record, and the judgment should be affirmed. SUB-TOPIC C. DAMAGE BY INFECTION 505. ANDERTON v. BUCKTON KING'S BENCH. 1719 1 Stra. 192 TRESPASS for the entry of diseased cattle into the plaintiff's close, per quod the plaintiff's cattle were infected. Not guilty pleaded, and a verdict for the plaintiff for 20s. It was moved to allow the plaintiff his full costs, upon the account of the special damages alleged and put in issue, and which would have subsisted of itself as a distinct cause of action, and the plaintiff ought not to be punished for joining it with the trespass, to avoid vexation. And Cro. Car. 163, 307, 3 Mod. 39, 2 Vent. 48, Cro. Car. 141, Ray. 487, were cited. On the other side it was insisted that though here is a matter of aggravation laid, yet it is still to be considered as an action of trespass, in which there is a recovery under 40s. And matter alleged only by way of aggravation cannot entitle the plaintiff to full costs. 2 Vent. 48, Salk. 642. The CHIEF JUSTICE, POWYS, and FORTESCUE, Justices, were for full costs, because the consequential damage is a matter for which the plaintiff might have had a distinct satisfaction. . . . EYRE, J., contra. . . . And the plaintiff had full costs. 506. COOKE v. WARING EXCHEQUER OF PLEAS. 1863 DECLARATION, for that the defendant wrongfully, negligently, and improperly kept certain sheep diseased with the scab, and dangerous to be suffered to go at large, he the defendant during all that time well knowing the said sheep were so diseased with the scab and dangerous to be at large; whereby and by reason of the wrongful, negligent, and improper conduct of the defendant in that behalf, the said sheep of the defendant intermixed with certain sheep of the plaintiff in a sound and healthy condition of body, and the said healthy sheep of the plaintiff became diseased and infected by the said diseased sheep of the defendant, and many of the sheep of the plaintiff died from the said disease, and were wholly lost to the plaintiff, and the residue of the said sheep became and were diseased and rendered of little value to the plaintiff. Plea: Not guilty. At the trial, before CHANNELL, B., at the Shropshire Spring Assizes, 1863, the following facts appeared: - In the summer of 1860, the plaintiff, who was a farmer, had some sheep in a field on his farm. Adjoining one corner of this field was a field of a farm occupied by the defendant. A day or two before the alleged injury the defendant had fetched some sheep from a distance and placed them in this field. The plaintiff being about to sell some of his sheep, they were removed to a barn for inspection by the intended purchaser, when it was discovered that they all had the scab. Some sheep of the defendant having that disease had been previously found in the plaintiff's field mixed with his sheep, and the plaintiff's shepherd separated them; information was sent to the defendant, but he took no notice of it; and his sheep, after being kept for some time, were turned out into the road. There was no direct proof of the mode in which the defendant's sheep got into the plaintiff's field. . . . About four days after the defendant's sheep were found in the plaintiff's field, the defendant said to a person who told him that his sheep had the scab, "I could not help it; I had the sheep at tack at Mr. Parson's of Tugford, and they caught it from Mr. Brindley's, at Broomscroft, sheep." . . . It was submitted on behalf of defendant: first, that there was no evidence that the defendant knew that his sheep had the scab; secondly, that there was no proof of negligence. The learned judge was of that opinion, and nonsuited the plaintiff. Huddleston, in the following term, obtained a rule nisi for a new trial, on the ground that the learned judge wrongly determined that there was no evidence to go to the jury of scienter or negligence, and that negligence was necessary to be proved as well as knowledge; against which Piggott, Serjt., H. Matthews, and Gough showed cause, before POLLOCK, C. B., BRAMWELL, B., and CHANNELL, B., May 28, June 2, 4. The ruling of the learned judge was correct. In actions of tort it is not sufficient to allege that an injury accrued to the plaintiff from some act of the defendant, but it must be averred and proved that the act was wrongful. Here there was no evidence of negligence. . . . If the allegation of negligence be struck out of the declaration, no wrongful act is shown. In the case of ferocious animals, the keeping them is the wrongful act, and therefore negligence need not be alleged or proved. Card v. Case, 5 C. B. 622 (E. C. L. R. vol. 57); May v. Burdett, 9 Q. B. 101 (E. C. L. R. vol. 58); Jackson v. Smithson, 15 M. & W. 563; Smith v. Pelah, 2 Stra. 1264; Rast. Ent. 616. But here there is damnum without injuria. Vaughan . Taff Vale Railway Company, 3 H. & N. 743, in error 5 H. & N. 679. [BRAMWELL, B. There is nothing illegal in keeping a mischievous or a diseased animal, provided it is kept safely. In May v. Burdett the Court said: "But the conclusion to be drawn from an examination of all the authorities appears to us to be this: that a person keeping a mischievous animal with knowledge of its propensities is bound to keep it secure at his peril, and that, if it does mischief, negligence is presumed, without express averment." May it not be said that an animal having an infectious disease is a "mischievous" animal? Perhaps it is not correct to say of a scabby sheep that it has a "propensity" to communicate disease, but it has a tendency to communicate it. Is there any distinction in principle between the liability for acts of a mischievous animal and a diseased animal?] The propensity to which the law attaches a liability so extraordinary, must be innate and habitual. The tendency to communicate disease may be, and here probably is, of a temporary character. At all events unless a scienter be alleged and proved, which is not done here, evidence of negligence is necessary. [CHANNELL, B. Suppose a vicious horse trespassing on the plaintiff's land and eating his grass, kicked him, would it be necessary to allege a scienter?] An action might be maintained in respect of the trespass, and the injury caused by the kick would form the subject of consequential damage. Cox v. Burbidge, 13 C. B. N. S. 430. . . . But where there is no trespass as against the party injured by an animal, there must be proof of a scienter or negligence on the part of the owner. It may be admitted that trespass might have been maintained here, but that form of action has not been adopted. Anderson v. Buckton, 1 Stra. 192, was an action of trespass for the entry of diseased cattle |