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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Appeal - Henderson v. M'Kenzie [1876] ScotLR 13_393 (18 March 1876)
URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0393.html
Cite as: [1876] SLR 13_393, [1876] ScotLR 13_393
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SCOTTISH_SLR_Court_of_Session
Page: 393↓
Court of Session Inner House Second Division.
v.
Facts:
By the second section of the Dogs Act 1871, power is given to Courts of Summary Jurisdiction to take cognisance of any complaint that a dog is dangerous and not kept under proper control.— Held that this section is not limited in its operation to dogs which are dangerous to human beings; and a libel held relevant in regard to dogs dangerous to sheep.
This was an appeal to the Court of Session under the Summary Prosecutions Appeals (Scotland) Act 1875. It arose out of a complaint brought by the appellant William Horn Henderson, Procurator-fiscal for the county of Linlithgow, against the respondent Alexander M'Kenzie,
Page: 394↓
tailor in Whitburn, in the Sheriff Court of Linithgow. M'Kenzie was charged with an offence against the provisions of the second section of “The Dogs Act 1871,” in so far as he had on or about the “ninth day of September 1875, and still has, in his possession, within or at or near his dwelling-house or premises at Whitburn aforesaid, a dog of the retriever breed, or of some other breed to the complainer unknown, which is dangerous, and not kept under proper control; and the said dog by itself, or in company or in concert with another dog belonging to the said accused, and which he has since caused to be destroyed or put away, did (first) on or about the said ninth day of September 1875, and in or near a field on the farm of Blaeberryhill, in the parish and county aforesaid, now or lately occupied by David Grieve, farmer there, chase for a considerable time and distance a flock of greyfaced lambs, or other description of sheep, the property or in the lawful possession of Walter Dandie, then and now or lately residing at Blaeberryhill aforesaid, and did severely bite and shake or worry one of said sheep, and injure or terrify the remainder of the flock; and ( second) on or about the said ninth day of September 1875, and in or near a field commonly called the ‘Townhead’ field, situated on the farm of White-dalehead, in the parish and county aforesaid, and now or lately occupied by Robert Gardner, bank-agent in Whitburn, did chase and pursue for a considerable time and distance a flock of two-year old sheep, or other description of sheep, the property or in the lawful possession of the said Robert Gardner, did force and compel or otherwise cause the said sheep to leap the wall between said field and the Cleuch turnpike road, and did chase or pursue the said sheep along said road into or towards the village of Whitburn, all in said parish and county, whereby one of said sheep was staved or otherwise injured in both or one of its shoulders, and the remainder of the flock were injured or terrified, in consequence whereof, or of part whereof, the said Alexander M'Kenzie is liable to be ordered to keep the said dog under proper control, or to destroy it, and failing his compliance with such order, is liable to a penalty not exceeding twenty shillings for every day during which he fails to comply with such order.” The respondent was cited, and accordingly appeared, before the Sheriff-Substitute at Linlithgow on 19th October 1875, when it was pleaded on his behalf that the libel was irrelevant and incompetent, and did not come within the meaning of the Act founded on, in respect that the operation of that Act was limited to dogs which were dangerous to human beings, while the libel only alleged that the respondent's dog was dangerous in respect of its having chased, injured, and terrified sheep.
The appellant contended that the Act was not so limited, and that it applied to all dogs which in the opinion of the Court of Summary Jurisdiction were dangerous to human beings, or to animate or inanimate property.
The Sheriff-Substitute sustained the objection to the relevancy, and dismissed the complaint.
The appellant' (and complainer) appealed against said judgment, and applied in writing within three days after such determination to the Sheriff-Substitute to state and sign a case in terms of section 3 of ‘The Summary Prosecutions Appeals (Scotland) Act 1875.”
The questions of law submitted by the Sheriff-Substitute for the opinion of the Court of Session were:—
“I. Is the second section of “The Dogs Act 1871” limited in its operation to dogs which are dangerous to human beings, and which are not kept under proper control?
II. If not, is the libel relevant in regard to dogs that are dangerous to sheep?”
The following is the section of the “Dogs Act 1871” (34 and 35 Vict. c. 56) referred to:—“Any Court of Summary Jurisdiction may take cognisance of a complaint that a dog is dangerous and not kept under proper control, and if it appears to the Court having cognisance of such complaint that such dog is dangerous, the Court may make an order in a summary way directing the dog to be kept by the owner under proper control or destroyed; and any person failing to comply with such order shall be liable to a penalty not exceeding twenty shillings for every day during which he fails to comply with such order.”
At advising, the opinion of the Court was delivered by Lord Ormidale.
Founding on this Act, the Procurator-fiscal for the county of Linlithgow presented a complaint to the Sheriff, setting out that the respondent Alexander M'Kenzie had been guilty of an offence, or had contravened the provision of the second section of the Act, in so far as he had on or about the 9th of September last, and continued to have in his possession, within or near his dwelling-house or other premises at Whitburn, a dog “which is dangerous and not kept under proper control, and that said dog had by itself, or in concert with another dog belonging to the said accused, and which he has since caused to be destroyed or put away,” and on or about said 9th of September, chased for a considerable distance two flocks of sheep, and severely bit and shook or worried one and injured others of them.
This complaint was objected to by the accused as irrelevant and incompetent, as not coming within the meaning of the Act founded on, in respect the operation of the Act was limited to dogs which were dangerous to human beings, while the libel only alleged that the respondent's dog was dangerous in respect of its having chased, injured, and terrified sheep.
The Sheriff-Substitute sustained this objection and dismissed the complaint, whereupon the prosecutor appealed, in terms of the Summary Prosecutions Appeals (Scotland) Act 1875 (38 and 39 Vict. c. 62), and applied to the Sheriff-Substitute to sign and state a case for the opinion of a Superior Court. That having been done, and counsel for the parties having been heard, the Court has now to give judgment in answer to the following two questions submitted in the case:—“(1) Is the second section of the ‘Dogs Act 1871’ limited in its operation to dogs which are dangerous to human beings and which are not kept under proper control?” And “(2) if
Page: 395↓
These questions involve very much the same thing, and in the present instance an answer, either affirmative or negative, to the first must also dispose of the second.
Now, in regard to the limitation of the Act to dogs which are dangerous to human beings, there is certainly nothing in it expressly to that effect. Neither am I satisfied, looking at the statute in all its clauses, that any such limitation was intended. The title to the Act is quite general, being simply “An Act to provide further Protection against Dogs;” and the preamble is in the same terms. The second section, again, of the Act, being that on which the complaint is founded, provides that any Court of Summary Jurisdiction may take cognisance of a complaint “that a dog is dangerous and not kept under proper control;” and if it appear that such dog is dangerous, may make an order directing the dog to be kept by the owner under proper control or destroyed, and that failing compliance he shall be liable to certain penalties. Now, it is not said here that the dog must be dangerous to human beings, although, if that had been meant, nothing could have been more simple and easier than to have so expressed the enactment. Nor I find anything in the other sections of the Act indicative of a limitation of the second section to dogs dangerous to human beings.
But it is only with the second section of the Act we have to deal at present; and considering that it contains no express limitation of its operation to dogs dangerous to human beings, but that in the generality of its words it is fairly, and I think not unreasonably, applicable to dogs dangerous to sheep, and it may be to other property as well as human beings, I am of opinion that the first question submitted in the case must be answered in the negative; and if so, it necessarily follows that the second question must be answered in the affirmative, as there can be no question or doubt, I think, that the complaint is relevant. The result on a proof we cannot anticipate, and this Court has nothing to do with it.
The result, therefore, is that the interlocutor or deliverance of the Sheriff-Substitute sustaining the respondent's objection must be reversed, and the complaint allowed to proceed, with a view to an investigation and disposal of its merits.
The
The Court accordingly answered the first question in the negative, and found the libel relevant, remitting the case to the Sheriff for further procedure.
Counsel for Appellant— Burnet. Agent— James Auldjo Jamieson, Crown Agent, W. S.
Counsel for Respondent— Strachan. Agent— James Gardner, L.A., Solicitor, Bathgate.