K. B. Div. under the Dublin Police Act, 5 & 6 Vict. c. 24, to amend such technical defect. 1904. THE KING (CAHILL) v. JUSTICES OF Lord O'Brien, L.C.J. Mr. Horan's second point is that there was no jurisdiction, because there was no evidence to warrant a conviction. That is, of DUBLIN. course, that there was no evidence at all, because we cannot go into the balance of the evidence. I do not think that this point is open on the present application. If it had been intended to be relied on, it should have been taken in the clearest and most explicit manner, and I do not think it has been so taken. But, even assuming that the point was open, I am of opinion that there was ample evidence before the magistrate to warrant a conviction. I shall read the words of the section under which the conviction was made:-"If any person drives a motor car on a public highway recklessly or negligently, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and use of the highway, and to the amount of traffic which actually is at the time, or which might reasonably be expected to be, on the highway, that shall be guilty of an offence under this Act." person The gist of the offence is the danger to the public. Let me read the evidence in the present case. The police constable states: "On the 7th instant, at the corner of Stephen's Green and Leesonstreet, I saw defendant drive a motor bicycle along the thoroughfare. He did the 264 yards in twenty-four seconds along Stephen's Green in the middle of the day." I think that that was sufficient to warrant Mr. Drury in convicting. He must be taken to know something of the nature of the locality-Stephen's Green, in the city of Dublin. I think, too, that the words "in the middle of the day' are significant as indicating the condition of the traffic at the time. GIBSON, J., concurred. MADDEN, J. As a question of general importance has been argued in this case, I add a few words expressing my reading of the statute, while I entirely agree with the view of the case taken by my Lord Chief Justice. 1904. THE KING (CAHILL) ť. JUSTICES OF Madden, J. In this Act, which has been drawn with great care, the Legis- K. B. Dw. lature had before it two objects. First, a relaxation of the existing state of the law in favour of a new and important addition to our modes of locomotion, which has also added to the enjoyment of large numbers of people. But as this mode of locomotion is attended with obvious danger, the Legislature took care at the same time to secure additional protection to the public lawfully using the highway. The relaxation in favour of motorists is contained in the 9th section. This section imposes an extreme limit to the rate of speed; but as it is difficult to form an accurate opinion as to the speed of either horse or motor, provisions are inserted requiring a warning to be given, and the testimony of at least two witnesses. The first section is drawn in a different manner. The offence there depends not on the single element of rate of speed, but on a combination of circumstances creating danger to the public. The offence is committed when any person "drives a motor car on a public highway recklessly or negligently, or at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case.' These are the words defining the offence, and the subsequent words in the section are merely an enumeration of certain circumstances which ought to be before the magistrate when considering whether the driving was dangerous to the public. In my opinion, the conviction would have been good if it had stopped at the words "having regard to all the circumstances of the case," and it is none the worse because the magistrate adds the subsequent words appearing in the section. I agree with my lord that the words used by the witness "in the middle of the day" may be regarded as some evidence of the existence of traffic; but, in my opinion, it was unnecessary to go into evidence of the actual existence of traffic at the time. The words of the section-" or which might reasonably be expected to be"-make this plain. In my opinion, the magistrate was not only at liberty, but bound, to take notice that this place was a highway in the metropolis of Dublin, a city with a population of some 300,000 inhabitants. The amount of traffic that might reasonably be expected in such a place is one of the circumstances of the case to which he was bound to have regard. K. B. Div. 1904. THE KING (CAHILL) A The argument founded on the 9th section does not apply. conviction under the 1st section is not necessarily founded on the attainment of any definite rate of speed, or on the actual presence of traffic, although these are elements to be taken into consideraDUBLIN. tion in considering whether the motor is driven "in a manner which is dangerous to the public." v. JUSTICES OF Madden, J. Solicitors for the prosecutor: Carlyle & Duncan. Solicitor for the Divisional Justices: Sir Patrick Coll. J. G. T. ALLEN, APPELLANT; SMALL, RESPONDENT (1). K. B. Div. 1904. Cruelty to animals-Cock-Cock-fighting-12 & 13 Vict. c. 92, sects. 2, 29 Oct. 27, 28. 17 & 18 Vict. c. 60, sect. 3. A cock is an animal within section 2 of 12 & 13 Vict. c. 92, and to cause cocks to fight is an offence within that section. Budge v. Parsons (3 B. & S. 382) and Bates v. M'Cormick (8 Ir. Jur., N. S., 239) followed. CASE STATED under 20 & 21 Vict. c. 43. The respondent was charged before the justices at Petty Sessions on a summons brought under 12 & 13 Vict. c. 92, with having cruelly ill-treated and tortured cocks by causing them to fight. At the hearing evidence was given that the respondent had caused cocks to fight, but it was contended on his behalf that a cock was not an animal within the meaning of 12 & 13 Vict. c. 92, and that the occurrence was not punishable as an offence under sect. 2 of that statute. The majority of the magistrates were of opinion that this contention was correct, and they dismissed the case on the merits. The judgment of the Court was now required as to whether the majority of the justices were correct in point of law in their determination. Cecil Atkinson, for the appellant:-- A cock is an animal within section 2 of the 12 & 13 Vict. c. 92: Bates v. M'Cormick (2); Budge v. Parsons (3); Reg. v. Brown (4); Webster's Dictionary, definitions of animal, domestic, cock, bird; New English Dictionary, definition of animal. [GIBSON, J., referred to Johnstone v. Abercrombie (5).] The matter is put beyond all doubt by the explanatory statute 17 & 18 Vict. c. 60. K. B. Div. 1904. ALLEN v. SMALL.. Oct. 28. There was no appearance for the respondent. LORD O'BRIEN, L.C.J.: The question in this case is a not uninteresting one, viz., whether a cock is an "animal" within section 2 of 12 & 13 Vict. c. 92. The section is as follows:-"And be it 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." The word “animal” is defined by the 29th section as meaning:-" Any horse, mare, gelding, bull, ox, cow, heifer, steer, calf, mule, ass, sheep, lamb, hog, pig, sow, goat, dog, cat, or any other domestic animal." Is a cock an animal within that definition? It is undoubtedly an animal, as distinguished from a vegetable or mineral; but is it an animal within this definition clause? I own that for myself I should have great difficulty in holding, apart from the explanatory statute to which I shall afterwards refer, that a cock was an animal within the meaning of that definition section, or that cockfighting was intended to be prohibited by sect. 2. All the animals specifically enumerated in the 29th section are quadrupeds, and I should have thought, applying the principle that general words following particular are to be construed ejusdem generis, that the words "or any other domestic animal" would not include a cock. This was the view adopted by the Court of Session in Scotland in the case of Johnstone v. Abercrombie (1). But we have in this country the case of Bates v. M'Cormick (2), in which it was held that a cock was an animal within sect. 2 of the Act. That is a case of very high authority. It was decided in the year 1863 by Chief Justice Monahan and Mr. Justice, afterwards Lord Justice, Christian, following the English case of Budge v. Parsons (3), and it has been acted on ever since. Even apart, therefore, from the statute 17 & 18 Vict. c. 60, to which Mr. Atkinson has referred us, I should have followed the decision in Bates v. M'Cormick (2), and (1) Sess. Cas., 4th series, vol. 20, p. 37. (2) 8 Ir. Jur. (N. S.) 239. (3) 3 B. & S. 382. |