39 



ing of cattle performed in circumstances set forth in the case, did not amount to 

 a contravention of the statute. In a case whieh afterwards came before the High 

 Court o'' Justice in England a court consisting of the Lord Chief Justice and 

 Mr. Justice Hawkins, they came to a contrary conclusion on the facts laid before 

 them, and the case which was now to be decided was instituted he understood 

 with a view to having the question of the legality of dehorning considered by a 

 court differently constituted and consisting of a greater number of judges. . . 

 What we have here to consider is not the question ol the expediency of prohib- 

 iting dehorning of cattle, but whether the practice is prohibited by being 

 included in the general enacting words of the .statute, namely, cruelly ill-treat- 

 ing, abusing or torturing animals . . . . I am of opinion that the language 

 of the statute is not in fair and just construction applicable to the case of the 

 operation of dehorning, when performed with skill and for the legitimate 

 purpose of preventing the cattle from injuring one another. . . . 



Continuing, he said he was disposed to give the greatest weight to the 

 decision of a co-ordinate English court, and he had no desire in any way to criti- 

 cise the opinions of the eminent judges by whom the case of Ford v. Wiley was 

 decided. He was not sure that he should dissent from the reasoning or the con- 

 clusions embodied in those opinions as applicable to the case before the English 

 Court, because he observed that the learned judges were agreed in holding it 

 proved that the operation of dehorning was neither necessary nor cus- 

 tomary in England. In their view of the facts, dehorning was treated as a purely 

 experimental proceeding, not productive of benefit to the owners of the animals, 

 and a cause of needless and therefore cruel suffering to the animals themselves. 

 He might hardly repeat that the facts as laid before them pointed to a very dif- 

 ferent conclusion, and while their decision was necessarily different in its legal 

 consequences from the decision of the Supreme Court in England, it did not 

 appear to him that there was any fundamental difference in the principles of 

 interpretation which had been applied by the courts of England and Scotland 

 to the construction of this statute. Assuming in accordance with the sheriff- 

 substitute's finding that the dehorning was performed with skill and without 

 the infliction of unnecessary pain, he was of opinion that the respondent had not 

 rendered himself liable to a criminal prosecution, and that the judgment of the 

 sheriff-substitute ought to be affirmed. 



Lord Trayner said that owing to the importance of the question he had 

 carefully considered the argument as well as the various cases cited. The reasons 

 given for the judgment in Ford v. Wylie, as far as not based on the particular 

 facts there found proved, seemed to him inadequate and inconclusive, while the 

 judgment in Lewis v. Fermor appeared on the other hand, to be well founded both 

 in sense and law. He was therefore of the opinion that the question should be 

 answered in the negative. 



Lord Wellwood said that the question submitted was one of law and not of 

 fact. The facts as found by the sheriff-substitute were that the operation was 

 skilfully performed, that it effectually prevented the animals from injuring each 

 other, and was for the benefit of the cattle, and that other remedies do not so 

 effectually prevent cattle from injuring each other. In this state of the facts he 

 had acquitted the respondent. . . . In order to justify conviction the inade- 

 quacy of the object must be such as would lead any reasonable and humane man 

 capable of weighing evidence, to hold that the pain inflicted was out of all pro- 

 portion to the object in view. On the facts stated he could not hold that the 

 sheriff-substitute's decision was wrong, on the contrary he thought it was right. 



Lord Kyllachy agreed that the facts of the case as found by the sheriff-sub- 

 stitute left no room for doubt as to the propriety of the sheriff's judgment. He- 



