Todrick v Wilson
| Jurisdiction | Scotland |
| Judgment Date | 13 March 1891 |
| Date | 13 March 1891 |
| Docket Number | No. 16. |
| Court | High Court of Justiciary |
Lord Justice-Clerk, Ld. M'Laren, Lord Trayner, Ld. Wellwood, Ld. Kyllachy, Justiciary Clerk.
Cruelty to animals—Dishorning cattle—Cruelty to Animals (Scotland) Act, 1850 (13 and 14 Vict. c. 92), sec. 1.—
Expenses—Summary Procedure (Scotland) Act, 1864 (27 and 28 Vict. c. 53), sec. 22—Cruelty to Animals (Scotland) Act, 1850 (13 and 14 Vict. c. 92), sec. 8.—
In a complaint against a cattle-dealer for a contravention of the Cruelty to Animals (Scotland) Act, 1850,* alleged to have been committed in the dishorning of cattle, by sawing off their horns close to the skull, it was proved that the operation caused great pain to the animals operated upon, but that it was in common use over a large district in Scotland. It was further proved that the object and effect of the operation were to prevent the cattle from injuring each other when fed in courts, and that the operation had been skilfully performed.
Held that no offence had been committed under the statute.
The Summary Procedure (Scotland) Act, 1864, sec. 22, provides that in complaints brought under the Act ‘for the recovery of any penalty … expenses shall not be awarded to or against any public prosecutor or party prosecuting under the authority of any Act of Parliament for the public interest, unless such award of expenses is authorised by such Act.’ The Cruelty to Animals (Scotland) Act, 1850, by section 8, provides that in every case of a conviction under the Act, where the sum imposed as a penalty, together with costs (if any) awarded by the magistrate, ‘is not paid within a certain time,’ the magistrate may adjudge the offender to be imprisoned.
In a complaint under the Summary Jurisdiction (Scotland) Acts, 1864 and 1881, for a penalty incurred by a contravention of the Cruelty to Animals (Scotland) Act, 1850, it was held (1) that there was in section 8 of the latter Act an implied power to the Judge in the inferior Court to award expenses against the accused, and therefore, (2) that it was competent to award expenses against the prosecutor.
Renton v. Wilson, 15 R. (Just. Cases), 84, approved.
This was a complaint brought in the Sheriff Court of the Lothians and Peebles, at Haddington, under the Summary Jurisdiction (Scotland) Acts, 1864 and 1881, and the Criminal Procedure (Scotland) Act, 1887, at the instance of Thomas Todrick, Procurator-fiscal of Court, against George Wilson, cattle-dealer, Cupar-Fife.
The complaint set forth that the accused, ‘on 20th November 1889, did, within a cattle-court at the farm steading of North Berwick Abbey,
in the parish of North Berwick and county of Haddington, cruelly ill-treat, abuse, or torture, or cause or procure to be cruelly ill-treated, abused, or tortured, thirty-two or thereby oxen, by sawing off with a saw or other instrument the horns of the said thirty-two oxen, close to their skulls, whereby the said thirty-two oxen were subjected to great unnecessary and cruel pain and suffering, and were thus cruelly ill-treated, abused, or tortured, or caused or procured to be cruelly ill-treated, abused, or tortured, by the said George Wilson, contrary to the Act 13 and 14 Vict. cap. 92, and particularly section 1 thereof, whereby the said respondent was liable to the penalties particularly set forth in the complaint.’
After a proof, the Sheriff-substitute (Shirreff) assoilzied the accused, and refused a motion by his counsel that the Procurator-fiscal be found liable in expenses.
The fiscal took a case, in which the Sheriff-substitute stated the following facts as held proved by him:—‘In consequence of complaints by the cattlemen in charge of the animals, to the effect that they were preventing each other from taking their food, and injuring each other, it was resolved to dishorn them. The cattle were mostly eighteen months old. They were dishorned by the respondent, with the assistance of four of the farm servants at the Abbey farm, at the time and place libelled. Each animal was drawn by a rope to a pillar in the cattle-court. Its legs were secured by straps connected by a rope, and the animal was cast upon its side upon a bed of straw. The horns were then sawn off by the respondent as close to the skull as possible with a fine tenor saw. The skin at the base of the horn was in some cases cut with a knife after the saw had passed through the horn, and skin remained attached to it, and in some cases also the skin was cut through before sawing in order to clear a way for the saw. The operation caused a considerable amount of bleeding, some blood squirting out from the wound when the horn was cut off. The respondent, immediately after the operation, applied a balsam to the wound. The sawing off of the horns occupied a few seconds in the case of each horn, and caused considerable pain. The sinuses of the head in each case were exposed, and atmospheric air was drawn into the sinuses, and expelled therefrom at each movement of respiration. Some of the animals commenced to eat immediately after the operation, but they had not been fed that morning; others did not eat. After four or five days, there was considerable inflammation and consequent discharge of pus in the case of some of the animals. Some were unable to eat, being in a state of fever, and evidently suffering considerable pain. With the exception of applying a little balsam, as above stated, no treatment followed the operation. The animals operated upon were afterwards more manageable than before, and ultimately they put on flesh and throve well. It was further proved that in England and Wales, in Berwickshire and Roxburghshire, total dishorning was not practised, unless for surgical purposes, and that in East Lothian total dishorning was only carried out to a limited extent. The witnesses for the prosecution, who were in the habit of feeding cattle in courts, found that the objects which total dishorning was intended to attain were met either by separating the vicious and weak animals, or by cutting off a portion from the point of the horn, but so as not to open the sinuses. It was proved that the total dishorning of cattle was regularly practised by farmers and breeders of cattle in Fifeshire, Perthshire, For-farshire, Kinross-shire, and Kincardineshire. The object for which the operation was performed was the safety of the animals feeding in cattle-courts, which frequently suffered painful and serious injuries from goring and butting, the weaker animals being often prevented from feeding by the stronger, when the horns were allowed to remain. It was the opinion of the witnesses for the defence that it was impossible to feed cattle in open courts unless they were dishorned, and that as the importation of Irish and Canadian cattle (the breeds mainly fed in the before-mentioned counties), which were more inclined to be troublesome than other breeds, had increased with recent years, dishorning was now more necessary than formerly. Partial dishorning, which some of the witnesses for the defence had tried, had been found unsatisfactory. It was further proved that the respondent had considerable experience in dishorning cattle, and that the operation on the cattle in question had been performed with skill, and in the usual manner.’
The question of law for the opinion of the High Court of Justiciary was,—‘Do the facts as above set forth infer a contravention of the Act 13 and 14 Vict. c. 92?’
On 14th July 1890 the Lords Commissioners of Justiciary remitted to the Sheriff-substitute to state what were his findings in fact, if any, on the evidence referred to in the following paragraphs of the stated case:—‘“The witnesses for the prosecution, who were in the habit of feeding cattle in courts, found that the objects which total dishorning was intended to attain were met either by separating the vicious and weak animals, or by cutting off a portion from the point of the horn, but so as not to open the sinuses; and it was the opinion of the witnesses for the defence that it was impossible to feed cattle in open courts unless they were dishorned, and that as the importation of Irish and Canadian cattle (the breeds mainly fed in the before-mentioned courts), which were more inclined to be troublesome than other breeds, had increased with recent years, dishorning was now more necessary than formerly. Partial dishorning, which some of the witnesses for the defence had tried, had been found unsatisfactory.”—The said Sheriff-substitute to report to this Court quam primum.’
The Sheriff-substitute on 17th July reported that ‘he was of opinion at the trial of the cause that it was proved that when cattle fed in courts are troublesome, total dishorning, which effectually prevents them from injuring each other, is for the benefit of the cattle. That other ways of dealing with troublesome animals, viz., by fastening wooden balls to the tips of the horns, and partial dishorning, do not so effectually prevent cattle from injuring each other.’
Argued for the appellant;—The operation fell within the words of the statute. It was not necessary to shew that the respondent's act was ‘wanton.’ It was sufficient if there was the infliction of great pain for an object which could have been otherwise attained by painless means. The Sheriff-substitute stated that ‘tipping’ the horns was an operation which accomplished the desired object. It might not be so effectual as total dishorning, but the advantage gained by the latter mode was out of all proportion to the pain inflicted.1 In Callaghan'sUNK2 case, the judgment of the Court which sanctioned the operation was based upon a finding that the advantages attainable by the practice were vastly out of proportion to the pain inflicted thereby, provided the operation was skilfully performed.
Argued for the respondent;—The object of the statute was to prevent ‘wanton cruelty.’ The operation could not be said to be of this nature. It was...
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