Scottish Court of Session Decisions

John M'Intyre, tacksman of certain lands in the island of Lismore, brought this action in the Sheriff-court of Argyllshire to have Duncan Carmichael and Peter M'Dugald, schoolmaster at Balliveolan in Lismore, found liable to him in damages for injury done to his sheep by the dogs of the defenders. The pursuer alleged that on three occasions, but especially on the 10th of May and 4th July 1868, the dogs of the defenders had killed, worried, or driven off his lands a considerable number of sheep, lambs, &c.; and he estimated the damages at £40. A proof was led, and the principal point of difficulty was the identification of the dogs. On the first occasion M'Millan, the pursuer's shepherd, saw the dogs amongst the sheep about 600 yards off, and he stated that Carmichael's dog had white on its tail. He did not however then know whose the dogs were. On the 17th May he again saw the same two dogs amongst the sheep, and having gone to the defenders' houses saw the dogs, and informed Carmichael's son of what the dogs had done. The guilt of the dogs was denied. The same thing occurred on 4th July; and on 20th July the action was raised. No blood was ever seen on the dogs; but after the occurrences alleged they were seen to be wet as if they had been out, though their owners denied it. There are various crofters, some of whose houses are nearer to the field where this occurred than the houses of the defenders, and all of whom kept dogs. Both defenders killed their dogs; and thereafter there were no cases of sheep being worried. Carmichael said he killed his dog because he had got another, to avoid taxation, and because of the story about the sheep.

The Sheriff-Substitute ( Home) assoilzied the defenders, holding the dogs had not been identified.

The Sheriff ( Cleghorn) found that on 4th July the acts alleged had taken place on 4th July.

Carmichael appealed.

Scott, for him, argued—The evidence is insufficient for identification of the dogs. Even if it were, it must be shewn that the dogs were addicted to worrying sheep. The statute of 1863 does not change the old law that culpa of the dog's owner must be shewn. Nor was any sufficient intimation made to the defender of the dogs having worried sheep. Authorities—Stair I., 9, 5; Elchies, Reparation, No. I.; Doddridge, 3 Br. Sup. 223; Fleming v. Orr, 2 Macq 14; 26 and 27 Vict, c. 100, § 1.

Balfour, for the pursuer, was not called on.

The Court held that whether the act alleged to have taken place on 4th July occurred or not depended on M'Millan's testimony. There was nothing to shake his credibility; his not being able to speak anything but Gaelic made him only a bad witness. His evidence was sufficient, if corroborated by circumstances, and there were sufficient corroborating circumstances here. Even the defender's evidence was in some points against himself. The offence, though committed in daylight, was in its nature an occult one, and difficult of proof. The killing of the dogs per se might be in

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itself prudent; but, coupled with the bad reasons given for their destruction, was suspicious. And it was a very noticeable fact that there was no mention of any worrying of sheep subsequent to the destruction of the dogs. The fact being thus proved, the only question was the owners' liability. On one construction of the statute of 1863, the killing of sheep by a dog was sufficient to subject the owner to liability. [ Lord Kinloch considered it would be sufficient.] But it was said the old law remained unchanged by the statute of 1863, and required some culpa on the part of the owner of the dog. Even if so, there was sufficient culpa; for the worrying of sheep by Carmichael's dog was intimated on the 17th of May to his son, who was living in the house with him. And on this ground, therefore, the defender was liable in damages to the pursuer.