JENKS AND OTHERS v. TURPIN AND ANOTHER. 1884. Unlawful prietary club. persons who were to make bye-laws and regulations for the good order and better regulation of the same; they were the persons who had the power of excluding a member from the club; and it was also proved that, after the police had the cognisance of what was going on at No. 7, Park-place, they gave orders that between certain days baccarat should not be played by any members in the card-room, and that they subsequently resolved to allow the game to be resumed, and that finally, on the 18th day of January, gaming-Pro1884, at a full meeting of the committee, a resolution was unanimously passed suspending the game until after the 31st day of January, 1884. It seems to me that these appellants the committee-men did assist in conducting the business of the house within the meaning of the statutes, and that the learned magistrate was quite right in so finding. The last question is this: Were the three appellants who were merely players at the game on the 1st day of December, 1883, rightly convicted? This depends upon whether it can be said that they were in any manner assisting in conducting" the business of the house. If a man goes into a shop and buys an article therein, can it be said that he was assisting in conducting the business of the shop? He certainly, as it seems to me, avails himself of the business there carried on, but does he assist in conducting the business there carried on? I think not. It is, however, said that the appellants were members of the club; so they were, but in my opinion it cannot be maintained that by merely being a member of a club a man thereby assists in conducting its business. He, as before stated, avails himself of its business, but does not, in my judgmemt, assist in conducting it any more than a customer who purchases an article in a shop. It was further urged that these appellants used the house, and therefore come within the words of sect. 4 of 17 & 18 Vict. c. 38, which enact, any person being the owner or occupier, or having the use of any house, room, or place, who shall open, keep, or use the same," &c. In my judgment, the words "having the use of any house" point to a person having the use of a house as a licensee to carry on its business, and do not apply to a person merely going in to avail himself of the business which happens to be carried on there. The words, moreover, in the section applying to persons advancing money for the purpose of gaming with to persons frequenting the house seem to show also that mere players were not aimed at by the section. I cannot and do not therefore agree with the learned magistrate as to this, and I think that the players were wrongly convicted of the charge preferred against them under the statute. Whether they were guilty of a common law misdemeanour is another matter, but that is not the point now to be considered. My brother Hawkins has gone through the whole of the statutes and cases brought to our notice by the learned counsel who argued the case, and I do not again now refer thereto. I am of opinion, for the above reasons, that the convictions against Jenks and the committee-men should be JENKS AND affirmed, and with costs of this appeal, and that the convictions against the three players should be quashed. OTHERS v. TURPIN AND 1884. Unlawful gaming-Proprietary club. Convictions affirmed against Jenks and the members of the Solicitors for the appellants, Lewis and Lewis. Freland. EXCHEQUER DIVISION. April 19 and 21, 1884. (Before DowsE, B. and ANDREws, J.) BRADY (app.) v. MCARDLE (resp.). (a) Cruelty to animals—Dishorning cattle-12 & 13 Vict. c. 92, s. 2. By the 12 & 13 Vict. c. 92, s. 2, it was enacted "That if any person shall from and after the passing of this Act cruelly beat, ill-treat, over-drive, abuse, or torture, or cause or procure to be cruelly beaten, ill-treated, over-driven, abused, or tortured, any animal, every such offender shall for every such offence forfeit and pay a penalty not exceeding five pounds." McA. being the owner of thirty-four head of cattle, on the 25th day of February, 1884, caused their horns to be cut off close to the skull. B. took out a summons against McA. for having caused the horns of certain cattle to be cut off and otherwise ill-treated them on the 25th day of February, 1884, at Greenan, in the county of Meath, and thereby caused and procured them to be then and there cruelly ill-treated, tortured, and abused, contrary to the 2nd section of the 12 & 13 Vict. c. 92. Upon the hearing of the summons evidence was given that the operation of dishorning caused very great pain and suffering, and that the reasons for cutting off the horns were (1) greater convenience in feeding cattle in yards, and (2) that cattle without horns brought in some places 21. a head more than those with horns. The magistrate who heard the summons, having refused to convict McA., was called upon by B. to state a case for the opinion of the Exchequer (a) Reported by JONES H. STAVELEY, Esq., Barrister-at-Law. Division as to whether he was wrong in point of law in dismissing the case. Held, that McA. was guilty of the offence of cruelly ill-treating and abusing the cattle, within the meaning of the 2nd section of the 12 & 13 Vict. c. 92, and ought to have been convicted. C ASE stated for the opinion of the Exchequer Division of the High Court of Justice in Ireland at the instance and request of Thomas F. Brady, Honorary Secretary to the Society for the Prevention of Cruelty to Animals, pursuant to the 20 & 21 Vict. c. 43, entitled "An Act to Improve the Administration of the Law as far as respects Summary Proceedings before Justices of the Peace." The following is a copy of the summons: Thomas F. Brady, Complainant;} Thomas McArdle, Defendant. Whereas a complaint has been made to me certain cattle to be cut off and otherwise ill-treated them on the 25th day of February, that the defendant having caused the horns of 1884, at Greenan, in the county of Meath, and thereby caused and procured them to be then and there cruelly ill-treated, tortured, and abused, contrary to the 2nd section of the 12 & 13 Vict. c. 92. This is to command you to appear as a defendant on the hearing of said complaint at Drumconrath Petty Sessions on Wednesday, the 19th day of March, 1884, at 11 o'clock forenoon before such justices as shall be there. (Signed) GEORGE MACCARTHY, R.M., Justice of said County. The case stated, which was signed by George MacCarthy, R.M., then proceeds as follows: This case was tried before me sitting alone as justice at a petty sessions holden at Drumconrath on the 19th day of March, 1884. The complainant was represented by counsel and solicitor. The defendant appeared in person. Counsel for the complainant read the 2nd section of the 12 & 13 Vict. c. 92, under which the summons was issued, and then called evidence. The following facts were proved to my satisfaction : That he was a farmer. He was in the neighbourhood of James Cahill's yard (defendant's caretaker) on the 25th day of February last, and heard considerable noise coming from it; that he saw people and cattle in the yard, but was too far away to discern who the people were. He did not hear cattle moaning nor see men putting them about. Cross-examined Thinks it greater cruelty to leave the horns on the cattle (i.e., than to take them off). That he visited the farm of James Cahill at Greenan with Constable Lamont on the 25th day of February, 1884, and saw fourteen head of cattle with their heads bleeding, apparently just after having their horns cut off, and that he could see the holes in their skulls. The cattle belonged to the defendant, Thomas McArdle. They appeared to be in pain and suffering; saw some feeding and some not; horn sawn off level (i.e., with the skull). Did not see the defendant; he was not there. James Cahill showed him the cattle. Constable Lamont deposed That he was with the last witness on said farm on the 25th day of February, and BRADY v. MCARDLE. 1884. Cruelty to animals. saw fourteen beasts. Blood was coming from their heads, and he could see into their skulls where the horns were cut off. The beasts were restless, and appeared to be in pain. Horns of some were sawn into the bone, others not; some were standing, some lying down, and others were feeding. Did not hear them moaning. Acting Sergeant Hart deposed That he went on the lands of Greenan next day (the 26th), and saw thirty-four head of cattle apparently freshly dishorned the day before. He saw the flesh red and raw where the horns were cut off, and there were deep holes in their heads. The cattle appeared to be in pain, crouched up and not at ease; their heads were covered with blood; some of them were feeding. James Cahill deposed That he was herd to defendant. He saw thirty-four head of cattle belonging to defendant being dishorned on the 25th day of February. It was done by servants of the defendant. The defendant was present part of the time when the cattle were being dishorned. Defendant's servants got directions from defendant to dishorn the cattle. In reply to defendant, witness stated that beasts were unruly, and gave bother at feeding time in the yard, and their horns had to be cut off to prevent them from tearing each other when feeding; that they gave a lot of trouble. The cattle have greatly thriven and improved since the operation. It saves trouble and bother in minding them. In reply to counsel he stated That the cattle were fed in two places in the yard, and that he could not conveniently feed them in more than two places. The cattle were divided into two lots, the weaker being separated from the stronger, as the stronger would not let the others eat. There were twenty in one place and fourteen in the other. In the place where the twenty beasts were the food was placed in a manger under a hedge, the manger being about thirty feet long by two feet wide, and there was a crib for them to feed out of as well. In the place where the fourteen beasts were they fed out of two mangers, one about fourteen feet long by two and half feet, and the other seven feet long by two and a half. The cattle could eat out of either side of the mangers in this yard. The same necessity for dishorning does not exist when cattle are in the field, but these cattle were put into the yard to be fed at night until later on in the season when the grass grows. Francis Frederick Collins, Veterinary Surgeon deposed That he had considerable experience with cattle in India and through the Afghan war; he had been employed by Government to report on a disease which attacked cattle whose horns sloughed off, and in consequence it had been necessary to cut the horns off to save their lives, and that the operation of cutting off the horns was most painful and that he had seen them scarcely able to move for some days afterwards. That he had also frequently occasion to cut off horns of sheep in India, owing to parasites at the root of the horns. That the root of the horn was very vascular, and he pointed out on a skull of a cow, which he produced, the thin partition existing between the sinus or cavity at base of horn and the brain, the partition of bone being about one-eighth of an inch thick. That at the base of the horn a number of arteries and nerves existed, and he showed on the skull the grooves in the bone where the arteries existed, and that in the process of cutting off horns close to the skull, as practised by farmers, these arteries and nerves were cut across with a saw. The action of the saw destroyed the muscles of the arteries and they then closed, which to some extent prevented a great flow of blood. That the operation of cutting horns off cattle in this manner was much the same to the beasts as cutting off a man's nail at the quick, and that inflammation ensued on the skull of the cattle, and continued for some time, which caused great pain. That eventually the skin grew over the spot but there was always a great tenderness and the cattle were careful not to knock their heads against anything. He had not seen the cattle of the defendant which had been dishorned, but had heard the evidence of the constables as to the condition of the animals and as to the cavities seen by them in their heads, and, from what they stated, he was able to say that the operation was cruel, and attended with great pain, and explained on the skull produced the cavities seen by the constables; he showed the horn on the skull produced partly cut across, with passage exposed and the cavities referred to by the constables. The purpose of dishorning was to feed them in inclosed places, but if fed out on grass there was no object in dishorning. As a scientific fact, there was no benefit to the animal from dishorning, only a convenience The defendant, on being asked had he anything to say, recalled Joseph McKeever, who stated, in reply to him, That he was acquainted with the practice of dishorning cattle for the last twentyfive years; that immediately after dishorning the cattle generally commenced to feed within two or three hours, and often within ten minutes after the operation. He never saw cattle dying from the operation. That if the beast did not feed within three hours after dishorning he would say there was something wrong. As a general rule, they improved in condition. He thought the bleeding was beneficial, and they fed better because their minds were easier. Dishorned cattle bring a better price. They were purchased largely by Scotch dealers for yard and store feeding; and even in Ireland they fetched a better price. He thought they would sell for about 21. per head more, because they were more convenient for yard feeding, as practised by Scotch and English farmers. Norwich market than those with horns. He heard that it was for stall feeding in Dishorned cattle bring 21. per head more in the Scotland that defendant's bullocks were intended. This closed the evidence on both sides. Counsel applied to me for a conviction, on the ground that the only reason put forward on behalf of the defendant to justify acts which caused great pain and suffering to the animals was the convenience of the owner of the beasts in making it easier for them to feed cattle in confined places, and argued that the acts proved against the defendant constituted an offence within the meaning of the Act of Parliament. I, however, declined to convict, on the grounds that in my opinion the act was not cruelty within the fair meaning of the statute; that the custom of dishorning cattle greatly prevailed amongst the farmers of the district to enable them to get a larger price for their beasts. I also, from the importance of the matters in question, and at the request of counsel for the plaintiff, agreed to state a case for the opinion of the Superior Courts on the question of law whether the acts proved came within the statute. The following order was made by me: "Dismissed on the merits." I was subsequently called upon by writing, dated the 21st day of March, 1884, by complainant to state a case for the opinion of the Exchequer Division of the High Court of Justice in Ireland, pursuant to the 20 & 21 Vict. c. 43, ss. 2, 3. The necessary recognisance was entered into by the complainant. The question for the consideration of the court is whether I was wrong in point of law in dismissing the case, and whether I should have convicted the defendant upon the above facts. C. W. R. Brady (with him Webb, Q.C.) for the appellant.The word "wantonly" was in the 5 & 6 Will. 4, c. 59, s. 2; but that Act was repealed by the 12 & 13 Vict. c. 92, and the word |