Scottish Court of Session Decisions

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Cite as: [1891] SLR 29_46, [1891] ScotLR 29_46

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SCOTTISH_SLR_Court_of_Session

Page: 46↓

Court of Session Inner House Second Division.

[Burgh Court of Ayr.

Saturday, November 7. 1891.

29 SLR 46

Gaffney

v.

Rowan.

Subject_1Process
Subject_2Appeal
Subject_3Whether Appeal Barred by Implement of Decree.
Facts:

A magistrate of a royal burgh, on a complaint by the procurator-fiscal, ordered the respondent to find caution that he would have his dog securely fastened up, and failing caution within twenty-four hours, granted warrant to officers of court to take possession of and destroy, or otherwise secure and safely dispose of the dog. The respondent found caution, and appealed against the judgment to the Court of Session. Held that he had not so implemented the decree as to bar his right of appeal.

Headnote:

Upon 9th July 1891 the Procurator-Fiscal for the burgh of Ayr, Carruth Boyle Rowan, complained to the Magistrates of Ayr that Richard Gaffney, canteen steward at the military barracks at Ayr, permitted a large St Bernard dog or mastiff to go at large unmuzzled and unsecured against biting and injuring the lieges, and which dog was vicious and dangerous to the lieges; and that on various specified occasions the dog had chased, attacked, seized, and bitten various persons named, and prayed that Gaffney should be ordained forthwith to destroy the dog, or to find caution that he should securely chain it up, and failing obedience in twenty-four hours, that warrant should be granted to officers of court to destroy or otherwise secure the dog.

Upon 27th July the Magistrate, Hugh Douglas Willock, after proof, found that the dog had chased and attacked several children, that the dog was large and powerful, and dangerous to the lieges. He therefore ordained the respondent to find caution
Page: 47↓
that he would chain up the dog so long as the dog was in that jurisdiction under a penalty of £10 sterling, and failing his lodging caution within twenty-four hours after the order was intimated to him, granted warrant to officers of court to destroy or otherwise secure the dog.

Upon 1st August 1891 J. A. MacCallum, solicitor at Ayr, bound himself as cautioner for the accused under this conviction.

Gaffney appealed, and argued—The appeal was competent, as it had been decided that such a complaint as this was a civil process— Duncan v. Greig, February 7, 1848, Ashley, 421; Marr & Sons v. Lindsay, June 7, 1881, 8 R. 784. No doubt the respondent had found caution as ordained, but that was not implementing the decree; it was the only means he could take to prevent the dog being destroyed.

The respondent at first argued that the appeal was in its nature a criminal proceeding, and therefore not appealable to the Court of Session, but afterwards withdrew the objection— Bruce v. Duncan & M'Lean, October 13, 1848, S. Jus. Reps. 12. Gaffney had implemented the decree by finding caution as ordered, and he could not now reclaim— M'Dougall v. Galt, June 30, 1863, 1 Macph. 1012; M'Lelland v. Garson, January 10, 1883, 10 R. 445.

At advising—

Judgment:

Lord Justice-Clerk—I understand that it is not now seriously contended that this appeal is incompetent because this proceeding was of a criminal nature. It is contended, however, that the appeal is excluded from review by the fact that there is in the prayer of the complaint a petition that the appellant Gaffney should find caution to securely fasten up his dog, and that as he has found caution, as ordered by the Magistrate, and has thereby implemented the decree, he is barred from carrying the question any further. I think it is sufficient to say, in answer to this contention, that the implement of the decree upon which the respondent relies is not at all what is meant by implement of a decree in the ordinary sense of the words. In the first place, the appellant is ordered to find caution that he will chain up his dog; and failing the said Richard Gaffney's due obedience within twenty-four hours, the judgment grants warrant to officers of court with assistants to pass, and immediately thereafter take possession of and destroy, or otherwise secure and safely dispose of said dog. Now, I think in the circumstances the only course open to Gaffney, in order to prevent his dog being destroyed, was to find caution as ordered by the Magistrate, but I do not think that that was implementing the decree in such a way as to bar him from taking an appeal against the decision.

Lord Young—It falls to us to decide this case upon its merits, that is to say, we have to judge whether the proof adduced is sufficient to warrant the judgment which has been pronounced. I think that is the unavoidable result of the authorities cited to us, but I think it unfortunate that it should be unavoidable, because in this Court we are not in the habit—and I think the course is a right one—of interfering with the powers of the police and the local authorities in putting down what is a nuisance to the inhabitants of any particular place. It seems, however, to be the law that a judgment of a magistrate upon a matter of this kind may be brought for review upon its merits to the Court of Session, with, of course, the possibility of an appeal to the House of Lords. I should have thought that all considerations of expediency and good sense were so much against a procedure of this kind, that if the question had been open I should have been inclined to hold that this appeal was incompetent. During the discussion there was a case cited to us in which an appeal of this kind was brought up at the Circuit Court along with small-debt appeals and other cases much more of this character than we are accustomed to deal with in the Court of Session. I should have thought that that was the more fitting tribunal for this case, but the authorities seem to say that this appeal is competent.

Lord Rutherfurd Clark—I am of the same opinion.

The Court pronounced this interlocutor:—

“Find that the pursuer has failed to prove the allegation of the complaint that the defender has permitted the dog libelled to go at large, and that said dog is vicious and dangerous to the lieges: Therefore sustain the appeal, recal the interlocutor appealed against, dismiss the complaint: Find the complainer liable to the defender in expenses in the Inferior Court and in this Court,” &c.

Counsel:

Counsel for the Appellant— M'Kechnie— C. Watt. Agents— Wylie, Robertson, & Rankin, W.S.

Counsel for the Respondent— Young— Watt. Agent— John Macmillan, S.S.C.
1891