35 



On the other hand it was held proved for the defence that the dehorning of 

 cattle was regularly practised by farmers and breeders of cattle in Fifeshire, 

 Kinrosshire, Perthshire, Forfarshire and Kincardineshire" That the objects for 

 which the operation was performed were the safety of the animals of the herd 

 which frequently suffered painful and serious injuries through goring and butting, 

 and were often prevented from feeding by the stronger cattle when the horns' 

 were allowed to remain and also for safety in carriage by sea or rail, the horns 

 being a source of great discomfort and danger to other cattle. So far as tried 

 knobbing and tipping had not been found satisfactory by the defendants as a 

 means of preventing goring. It was further proved that the respondent had 

 considerable experience in dehorning cattle, and was frequently employed by 

 farmers and breeders in the county of Fife to perform this operation ; that it was 

 performed skilfully, and in a manner frequently adopted in the county. 



The sheriff-substitute, in his finding was largely gui'ded by the following 

 principle laid down in the case of Lewis v. Fermor, in the Court of Queen's Bench, 

 England, March 1887: " A person who with reasonable care and skill performs 

 on an animal a painful operation, which is customary, and is performed bona fide 

 for the purpose of benefitting the owner by increasing the value of the animal, 

 is not guilty of the oftence of cruelly ill-treating, abusing or torturing the animal 

 within the meaning of 12 and 13 Vict. cap. 92, sec, 2, even though the operation 

 is in fact unnecessary and useless." He held that the principle laid down applied 

 to the present question, and that even assuming the operation of dehornino- to 

 be unnecessary, the respondent was not guilty of a contravention of the Act, and 

 he accordingly acquitted him. 



The High Court. 



The case was then taken to the High Court of Justiciary for an opinion on 

 the question of law : — 



1. Whether the sheriff-substitute was right in adopting the principle laid down in the case 

 of Lewis v. Fermor as applicable to the present case ; and 



2. If not, do the facts above set forth infer a contravention of the Act 13 and 14 Vict 

 cap. 92. 



This appeal came before Lords Young, McLaren and Rutherford Clark. 



Rankine, for the appellant, claimed that in this case the sheriff-substitute 

 had erred in acquitting the respondent, the operation performed being both cruel 

 and unnecessary. Dickson, for the respondent, held that the sheriff-substitute 

 was right.^ The operation was necessary and was performed by persons who 

 had a legitimate interest and object in view. It was no doubt a painful 

 operation, but was not done wantonly or in order to ill-treat or abuse the animal. 



The Finding. 



Lord Young said he was of opinion that the judgment of the sheriff in this 

 case was right. He would not express an opinion as to the propriety of what was 

 done to these cattle — none whatever. For anything he might say, the operation 

 might be not only very unnecessary— the object being attainable otherwise and 

 without pain — or might even be a very bad operation — very wrong — not merely 

 attaining a good end in an unnecessarily painful way, but in every view a bad 

 operation. According to the facts stated in the case by the sheriff, it appeared 

 that the farmers in a certainly not unimportant district of the country were of 

 opinion that their legitimate interests were served by cutting the horns off certain 

 animals, and that was accordingly done, and to such an extent that there were 



