alty not exceeding twenty dollars, and such further sum not exceeding twenty dollars, as appears to the justice to be a reasonable compensation for the damage, injury or spoil so committed,-which last mentioned sum of money shall, in the case of private property, be paid to the person aggrieved; and if such sums of money, together with the costs, if ordered, are not paid, either immediately after the conviction, or within such period as the justice, at the time of the conviction appoints, the justice may cause the offender to be imprisoned for any term not exceeding two months, with or without. hard labour. 2. Nothing herein extends to— (a.) any case where the person acted under a fair and reasonable supposition that he had a right to do the act complained of; or (b.) any trespass, not being wilful and malicious, committed in hunting or fishing, or in the pursuit of game. R.S.C., c. 168, s. 59; 53 V., c. 37, s. 18. See comments under clause D (e) of Article 499, ante, p. 447. 512. Every one is guilty of an offence and liable, on summary conviction before two justices of the peace, to a penalty not exceeding fifty dollars, or to three months' imprisonment, with or without hard labour, or to both, who— (a.) wantonly, cruelly or unneccessarily beats, binds, illtreats, abuses, overdrives or tortures any cattle, poultry, dog, domestic animal or bird; or (b.) while driving any cattle or other animal is, by negligence or ill-usage in the driving thereof, the means whereby any mischief, damage or injury is done by any such cattle or other animal; or (e) in any manner encourages, aids or assists at the fighting or baiting of any bull, bear, badger, dog, cock, or other kind of animal, whether of domestic or wild nature. R.S.C., c. 172, s. 2. The expression "cattle" includes any horse, mule, ass, swine, sheep, or goat, as well as neat cattle or animal of the bovine species and by whatever technical or familiar name known, and applies to one animal as well as to many. (Art. 3 (d.) ante). It was not an offence at common law; and This offence is a statutory one. the statutes upon the subject are of comparatively recent origin. With regard to the meaning of the words, "wanton" and " act, which is unjustifiable by the circumstances, is wanton; and cruelty exists cruel ", any whenever the animal is subjected to unnecessary pain or suffering. But the mere infliction of some bodily pain will not, of itself, constitute the offence. There must be not only some ill-usage, from wh the animal suffers, but the illusage must be without any necessity, actually existing or honestly believed to exist. (1) If there be a necessity for it, or a reasonable ground for believing that there is a necessity for it, there will be no offence. The most common case to which the law would apply is that in which an animal is cruelly beaten or tortured for the mere purpose of causing pain, or for the gratification of a malignant or vindictive temper; although other cases may be suggested, which would be within the meaning of the law. Thus, cruel and unnecessary beating or torture in training or correcting an intractable animal; pain inflicted in wanton or reckless disregard of the suffering it occasioned, and so excessive in degree as to be cruel; torture inflicted by mere inattention and criminal indifference to the agony resulting from it, as in the case of an animal contined and left to perish from starvation, would undoubtedly be punishable. The mere inconvenience and discomfort attendant upon the transporting of animals from one place to another, by rail or by water, does not constitute cruelty. And a surgeon who performs, upon an animal, some operation which he honestly believes to be of benefit to the animal, will be guilty of no offence, un derthe above Article, although the performance of the operatiou may cause the animal severe pain and suffering. (2). Nor does the law interfere with the infliction of any chastisement which may be necessary for the training or discipline of animals; but the chastisement must not be excessive. Chastisement resorted to in good faith and for a proper purpose will not, in general, be deemed excessive; but, if the chastisement is unduly severe, it may be taken into consideration by the jury in determining whether or not it was prompted by a malevolent spirit, and not by a justifiable motive. Chastisement of an animal is not so restricted as that which a parent or a master is entitled to exercise over his child or his pupil. The parent or master is liable to punishment, if. in chastising his child or his pupil, he exceed what is moderate and reasonable; but, in the case of an animal, there is no liability for any such excess, unless it be such an excess as is unnecessary and wantonly cruel. In an American case, under a statute making it an offence to "needlessly mutilate or kill any living creature," the proof shewed that the defendant had, in his own corn-field, killed his neighbor's small pig, with one blow of a club, thereby producing immediate death. The pig with others had been in the habit of trespassing in the defendant's corn-field; and the defendant had repeatedly requested its owner to pen it up or keep it out of the field, which the owner did for a while; and then she turned all the pigs out again. There were no more circumstances of cruelty than the taking of life at one blow. The court refused the request of the defendant's counsel that the jury should be instructed, first, that a "needless" killing meant a killing in mere idle wantonness, without being in any sense beneficial or useful to the accused; second, that the jury were to determine whether or not it was "needless," and, that, for that purpose, they might consider the facts of the pig being found in the corn-field and its having been frequently there before; third, that they must find, before convicting, that there was no necessity or cause whatever to kill the animal; fourth, that if the jury found that the animal was destroying the accused's crops, and that he had used all reasonable means to prevent it, and that the act of killing did prevent it, they would be warranted in finding that it was not needless; fifth, that the word "needless" related to a wanton and cruel act, and not to one which was the result of necessity or reasonable cause; and, sixth, that unless the accused was guilty of wanton and needless acts of cruelty to the pig, resulting in unjustifiable pain, they should acquit. But the court, of its own motion, told the jury that, if the accused needlessly killed the pig, they should convict, notwithstanding it may have been trespassing within the cornfield at the time; and that "'needlessly' means without necessity, or unnecessarily, as where one kills a domesticated animal of another, either in mere want (1) Budge v. Parsons, 7 L. T. 184; 11 W. R. 424, 3 Best & S. 385; Swan v. Saunders, 14 Cox C. C. 566; 50 L. J. (M. C.) 67: 44 L. T. 428. (2) Com. v. Lufkin, 7 Allen, (Mass.) 579. onness or to satisfy a depraved disposition, or for sport or pastime, or to gratify one's anger, or for any other unlawful purpose." It was held error in the court to refuse the instructions asked, except the last, (the sixth), of which it was said that "a needless killing could not be justified by an easy death; cruelty was no part of the charge, although made criminal under other sections." It was also held that: All acts of killing which are unlawful are not needless,' in the meaning of the statute A man; for instance, might kill his neighbor's sheep for food, which would be unlawful, and either a trespass or felony, according to the circumstances; but such killing could not, with any show of reason, come within the intention of the act in question. The lawfulness or unlawfulness of the act has really no bearing upon its character as charged." It was also said, even though the last clause had been omitted, it would not have cured the error in refusing the charge asked by the accused, for "he was entitled to have them particularly impressed upon the jury in a matter which, being new, they might misapprehend." In defining the word "needless" the court said: "From the view we have taken of the nature and scope of this class of acts, it is obvious that the term needless' cannot be reasonably construed as characterizing an act which might by care be avoided. It simply means an act done without any useful motive, in a spirit of wanton cruelty, or for the mere pleasure of destruction." And it was added that the accused ought not to be convicted "if he had some useful object in the killing, such as the protection of his wheat and corn." (1) In another case, a farmer was indicted for " needlessly torturing and mutilating" a dog. The proof showed that the accused had for some time been annoyed by a dog, or some other animal, invading his premises at night, and breaking up the nests of his hens, sucking the eggs and disturbing his poultry. He suspected his father's dog, and had no suspicions of the dog injured, whose master lived a quarter of a mile distant. The accused borrowed a steel-trap, set it in a bucket of slop, placed the latter in his garden, and tied the trap to a post. In the night the dog injured was caught in this trap by his tongue and a part of it torn out, permanently injuring it, so that it could scarcely bark. This dog was in the habit of raiding the other neighhors' premises. The accused was held not guilty. "There can be no doubt, we think, that in doing so his object was, by catching the animal, to protect his property and relieve his premises from these depredations, and not for the purpose of inflicting needless torture upon the animal There was no testimony going to show that the slop used by the defendant was such as was calculated or likely to lure dogs or other animals away from the premises where they belonged on to his premises or within his enclosure. The defendant had a right to protect his premises against such invasions, and to adopt such means as were necessary for that purpose. And if a night-prowling dog, in the habit of invading premises and breaking up hens' nests and sucking the eggs, while so transgressing, is caught in a steel-trap, though set by the owner for that purpose, and then suffers pain or mutilation, we are not prepared to say that it would be needless torture or mutilation, within the meaning of the statute While the statute's object was to prevent cruelty to animals, and it was intended as a humane provision for their protection, it was not intended to deprive a man of the right to protect himself, his premises and property against the intrusions of worthless, mischievous and vicious animals by such means as are reasonably necessary for that purpose. The object of the statute was to protect animals from wilful or wanton abuse, neglect or cruel treatment, and not from the incidental pain or suffering that may be casually or incidentally inflicted by the use of lawful means of protection against them." (2) Where the prevention of cruelty and suffering is concerned there is plainly a difference between instantaneous death and lingering death; the former being generally, if not always, painless. In favor of those sports which are considered healthful recreations and exercise, tending to promote strength (1) Grise v. State, 37 Ark. 456. (2) Hodge v. State, 11 Lea (Tenn.) 528 ; S. C. 47 Am. Rep. 307. bodily agility, and courage, even the pain which comes with a lingering death in the lower animals is often disregarded in the customs and laws of human and highly civilized people; so, that the angler, who catches fish for pastime, or the marksman who, as an exercise of skill, or as a diversion, shoots pigeons as they fly wild in the woods is not considered guilty of any violation of the essential objects of the law in question. The cutting of the combs of cocks in order to fit them for cock-fighting or winning prizes at exhibitions was held. by Kelly, C. B, to be cruelty, abuse, and ill-treatment; (1) and so was the dishorning of cattle, in reference to which Coleridge, C. J., said, "Abuse of the animal means substantial pain inflicted upon it, and unnecessary means that it is inflicted, without necessity, and under the word necessity' I should include adequate and reasonable object. (2) In another case, however, the Court of Common Pleas held that dishorning cattle was not forbidden by the statute against cruelty. (3) To turpentine a goose and then set it on fire is cruelty. (4) a hog, (which is being slaughtered), into boiling hot water, stuck, and before it is dead. (5) So it is to plunge after it has been It has been said that whenever the purpose for which the act is done is to make the animal more serviceable for the use of man, the law ought not to be held to apply. And, so, the castration of horses or other animals or the spaying of sows has been held not to be cruelty, if done with reasonable care and skill, even though it be a mistaken idea that it improves them. (6) In a prosecution for cruelty, the question is Did the accused intend to do the act which caused the pain? Thus, where the accused, while hauling lumber, after trying to get a balky horse to pull, picked up a stick, four feet in length and two inches thick, and struck the horse on the head and instantly killed it, the court held him guilty of cruelly killing an animal, and refused to enquire into the motive he had in striking the blow namely, to make the horse pull. (7) With regard to overdriving, if an injury be inflicted, the overdriving must be wanton. If the driver, while honestly exercising his judgment, happen to err, he is not guilty. An error of judgment is to be distinguished from mere recklessness of consequence or wilful cruelty. (8) It must appear from the evidence that the accused did the act knowingly. Thus, in a colliery, certain horses were worked, while suffering from raw wounds. T. was the owner of the colliery, and S. the certificated manager, but neither was proved to have been present or to have had any notice or knowledge of the condition of the horses They were acquitted, the court holding that some knowledge of the matter was essential to the commission of the crime. (9) No one can be excused by shewing that he was authorized by another to inflict a cruel injury. And, so, a conductor and a street-car driver are liable for over-loading a street-car, even though directed to do so by a superior officer of the street-car company. (10) (1) Murphy v. Manning, L. R., 2 Exch. Div. 312. (2) Ford v. Wiley, L. R., 23 Q. B. D. 203. (3) Callaghan v. Society, etc., 11 Cox C.C. 101; and see Brady v. McArgle, 14 L. R. (Irish 174; 15 Cox, C.C. 516. (4) State v. Branner, 111 Ind. 98 (5) Davis v. Soc. for Prev. of cruelty, 16 Abb. (N. Y.) Pr. N. S., 73. (6) Lewis v Fermer, L. R. 18 Q. B. D. 532. (7) State v. Hackfath, 20 Mo. App. 614, S. C., 2 West. Rep. 588. (8) Com. v. Wood 111 Mass. 408. (9) Small v. Warr, 47 J. P. 20; People v. Brunnell, 48 How, (N. Y.) Pr. 436. (10) People v. Tinsdale, 10 Abb. (N. Y.) Pr., N. S., 374. Cruelty usually results from an act done; but there are instances where cruelty may arise from a failure to perform an act. A failure to kill a wounded animal in great pain and incurable is not "cruelty." (1) But if an animal, a horse, for instance, is fatally diseased, and its owner or keeper turns it into a field to feed on the pasturage, and it has to go about in great pain in its efforts to get food in order to support its life, such owner or keeper is guilty of torturing, or causing it to be tortured, the same as if he had tortured it with his own hand. (2) But where the owner of parrots sold ten and put them in a box, and some corn with them, to ship a long distance, providing no water for them, and ten hours afterward, at an intermediate station, they were found making a fuss, three being down on the floor, and the person so finding them gave them two saucers of water, which they drank with evident great relish and seemed refreshed; the person shipping them was held not guilty of cruelty, that the mere non-supply of water was not sufficient evidence of cruelty. (3) See article 499 clause B (b,) and comments at pp. 444 and 445 ante. Section 7 of R.S.C., c. 172, is unrepealed, (See Schedule Two, post), and is as follows: "Every pecuniary penalty recovered, with respect to any such offence shall be applied in the following manner, that is to say: one moiety thereof to the corporation of the city, town, village, township, parish or place in which the offence was committed, and the other moiety, with full costs, to the per-on who informed and prosecuted for the same, or to such other person as to the justices of the peace seems proper." No prosecution for any offence, under articles, 512, 513, 514 and 515, can be commenced after the expiration of three months from its commission. (See Art. 551 (e). 513. Keeping cockpit,—Every one is guilty of an offence and liable, on summary conviction before two justices of the peace, to a penalty not exceeding fifty dollars, or to three months' imprisonment, with or without hard labour, or to both, who builds, makes, maintains or keeps a cock-pit on premises belonging to or occupied by him, or allows a cock-pit to be built, made, maintained or kept on premises belonging to or occupied by him. 2. All cocks found in any such cock-pit, or on the premises wherein such cock-pit is, shall be confiscated and sold for the benefit of the municipality in which such cock-pit is situated. R.S.C., c. 172, s. 3. 514. Treatment of cattle while in transit by rail or water.-No railway company within Canada whose railway forms any part of a line of road over which cattle are conveyed from one province to another province, or from the United States to or through any province, or from any part of a province to another part of the same, and no owner or master of any vessel carrying or transporting cattle from one province to another province, or within any province, or from the United States through or to any province, shall confine (1) Powell v. Knights, 38 L. T. 607; 26 W. R. 721. |