K.B. Div.]

Tuesday, July 28.

(Before Lord HEWART, C.J., AVORY and SHEARMAN, JJ.)

BARNARD v. EVANS. (a)

Animal Cruelty to-Dog trespassing Wounding with shot-gun- Use of gun not necessary for driving dog away Cruelly ill-treatingAbsence of justification-Protection of Animals Act 1911 (1 & 2 Geo. 5, c. 27), s. 1 (1). The respondent, who was a farm labourer, saw a dog playing in a field in the occupation of his employer, and by the instructions of his employer the respondent, without attempting otherwise to drive the dog out of the field, shot at the dog with the intention of killing it. The dog received flesh wounds and crawled away bleeding and for some days suffered substantially in consequence of the wounds.

On a summons against the respondent under sect. 1 (1) of the Protection of Animals Act 1911 for cruelly ill-treating the dog the respondent contended that he was justified in shooting at the dog, which was trespassing on his employer's property, and the justices, though they found that it was not necessary to use a shot-gun to drive the dog out of the field, dismissed the summons.

Held, that as there was no justification for the act of the respondent the case must be remitted to the justices with a direction to convict.

CASE stated by justices for the county borough of Merthyr Tydfil.

On the 3rd March 1925 an information was preferred by Thomas Barnard, an inspector in the employment of the Royal Society for the Prevention of Cruelty to Animals (hereinafter called the appellant), under the Protection of Animals Act 1911, s. 1, against Edward Evans (hereinafter called the respondent), for that he did on the 12th Jan. 1925, at Merthyr Tydfil, cruelly ill-treat a certain animal, to wit, a dog, by shooting at and wounding the same, contrary to the said statute. The justices dismissed the information on the 3rd March 1925.

The following facts were proved or admitted: The respondent was a farm labourer in the employ of William Evans, a farmer. On the 12th Jan. 1925 a spaniel dog belonging to one Robert Evans, went into a field in the occupation of William Evans, the respondent's employer. There were two fields between the house occupied by the owner of the dog and the field where the dog was seen. The dog whilst in this field was playing with another dog, but it was alleged that when the respondent saw it it was chasing fowls. The respondent had a gun and shot the dog, intending to kill it. The dog ran away for a short distance, and then fell and crawled to its home. On examination it was found that a number of shots had penetrated the body of the animal and the upper parts of the right hind-leg and of the right fore-leg, causing flesh wounds which bleeding. There was no doubt that the animal (a) Reported by J. F. WALKER, Esq., Barrister-at-Law

were

[K.B. Div.

suffered in consequence of the wounds and that the suffering lasted for some days. There was no hedge round the field in question, and no attempt was made by the respondent to drive the dog out of the field by other means before he shot at it. The respondent shot at the dog with intention to kill it by the instructions of his master.

On behalf of the appellant it was contended that the shooting at and wounding of the dog in the circumstances were not justifiable because the dog was not doing any damage at the time; that the respondent used more force than was required to drive the dog away; and that the respondent caused the animal unnecessary pain and suffering.

On behalf of the respondent it was contended that the respondent was justified in shooting at the dog, which was trespassing on his employer's property and was worrying his master's sheep and fowls, and the justices' attention was directed to the following decisions of the High Court Powell v. Knight (38 L. T. Rep. 607): Armstrong v. Mitchell (88 L. T. Rep. 870) ; and Hooker v. Gray (96 L. T. Rep. 706).

The justices found (1) that the respondent shot at the dog with intent to kill it; (2) that as a result of the shooting substantial suffering was caused to the dog; (3) that it was not necessary to use a shot-gun to drive the animal out of the field.

The justices were of opinion that in view of the decisions of the High Court above referred to it was not open to them to convict the respondent, and they therefore dismissed the information.

The question for the decision of the court was whether the justices were right in so deciding. If they were, the decision was to stand. If they were not, the court was requested to remit the case to them with directions to convict the respondent.

Goddard, K.C. and F. J. Tucker for the appellant.

The respondent did not appear.

Lord HEWART, C.J.---I have no doubt that this appeal ought to succeed. The justices found that the respondent shot at the dog with intent to kill it, and that as the result of the shooting it was cruelly ill-treated, and that it was not necessary to use a shot-gun to drive the dog away. In these circumstances the justices would have convicted, but they were induced to think that some decision or other prevented them from convicting. The law, as I understand it, in such a case is to be found in l'ere v. Lord Cawdor (11 East, 569), where it is laid down, as it is laid down in many other cases, that the question is whether there was necessity. Lord Ellenborough says in that case: "The question is, whether the plaintiff's dog incurred the penalty of death for running after a hare in another's ground? And if there be any precedent of that kind which outrages reason and common sense, it is of no authority to govern other cases. There is no question here as to the right to the game. The gamekeeper had no

K.B.]

right to kill the plaintiff's dog." It should be observed that in that case it had been argued by eminent counsel for the defendant that the justification need not allege that the killing was a necessary means of preserving the hare. That case decides that to shoot an animal in such circumstances without justification is to commit an offence.

Apparently undue stress was laid on the decision in Hooker v. Gray (sup.), which turned upon special facts and was said to come within the case of Powell v. Knight (sup.), where the question was not argued and decided, but assumed. A distinction is to be drawn between such a case and a case where a person is charged with unlawfully and maliciously destroying somebody's property. As was said by Channell, J. in Miles v. Hutchings (89 L. T. Rep. 420 ; (1903) 2 K. B. 714 at p. 717): The existence of a malicious intention would be negatived if the appellant wrongly, but honestly, believed that it was necessary to shoot at the dog in order to drive him away; but while the justices have found that the shooting was unnecessary, they have found nothing as to the appellant's boná fide belief."

In my opinion the justices were led by a true instinct when they desired to convict, and they were misled when they were induced to believe that there was any decision of this court or any other court which prevented them from so doing.

The case must go back to the justices with a direction to convict.

I

AVORY, J.-I am of the same opinion. think the expression "cruelly ill-treat" applies to a case where a person wilfully causes pain to an animal without justification for so doing. In this case it is not proved, it is not even alleged, and it is not stated in the case, that the dog was in fact chasing fowls; it is only said that it was alleged that, when the respondent saw it, it was chasing fowls. There is no distinct finding in the case, even if the dog were chasing fowls, that the respondent was justified in resorting to this extreme measure. I agree that the case should be remitted with a direction to convict.

SHEARMAN, J.--I am of the same opinion. I think the case is of considerable importance because the opinion has got abroad that, if dogs are shot when trespassing. that does not come within the Protection of Animals Act 1911. Sect. 1 (1), under which this respondent was summoned, contains the words ** shall cruelly ill-treat," and it also goes on to say “by wantonly or unreasonably doing any act cause unnecessary suffering." No doubt those offences are described a little differently. It appears to me that when a man is summoned under the first part one has to consider what is cruelty. I do not think it can be better defined than " causing unnecessary suffering." It is necessary in some operations to cause suffering. It seems to me that what the justices have to look at when considering whether a man has cruelly beaten

[Div.

or ill-treated an animal is whether he did something which it was not reasonably necessary to do and which he was not justified in doing. The justices have found that the man was not justified in doing this; therefore he caused unnecessary suffering, and I think it follows that he did cruelly ill-treat this dog. The case must go back to the justices to convict.

Appeal allowed and case remitted. Solicitor for the appellant, S. G. Polhill.

PROBATE, DIVORCE, AND ADMIRALTY

DIVISION.

DIVORCE BUSINESS.
Thursday, July 9.

(Before Lord MERRIVALE, P.) VALIER U. VALIER (otherwise DAVIS); VALIER v. VALIER (VALIER intervening). (a) Nullity of marriage-Mistaken belief of one party as to the nature of ceremony-Effect in the circumstances of absence of ratification by

cohabitation or consummation.

An Italian went through a ceremony of marriage with an English girl in England under the belief that the ceremony was one of betrothal only, and did not constitute a marriage. There was no subsequent cohabitation or consummation.

Held, that there had been no valid marriage, as the husband did not know that he was going to be married, and did not know until later in the day the effect of what had been done, and there was nothing in his subsequent conduct, which amounted to a ratification.

IN the first of these two suits, which had been consolidated, the Conte Jerome Valier, an Italian subject at present residing in France, prayed for a declaration that a form of ceremony of marriage which he had gone through with May Winifred Valier, otherwise Davis, on the 14th Sept. 1916, at the register office for the district of St. Giles in London was null and void, on the grounds that he did not know the nature of the contract into which he had entered, and did not consent or intend to be then and thereby married to the respondent.

The second suit was a cross-petition by May Winifred Valier against the Conte for divorce on the grounds of desertion and of adultery with the Marchesa Balbi, subsequent to a form or ceremony of marriage, which he had gone through with the Marchesa in Italy.

Sir E. Marshall-Hall, K.C. and C. E. Jones appeared for the Conte.

Bayford, K.C. and T. Buckmill for May Winifred Valier.

A. II. King for the Marchesa Balbi Valier.
The petition for nullity was heard first.

(a) Reported by J. A. C. SKINNER, Esq., Barrister-atat-Law.

Div.]

The facts as they appeared from the evidence of the Conte were as follows:

He had been an orphan since an early age, and his affairs had been controlled by his family. When he came of age he found he was left almost without means. This had caused a great deal of trouble in the family, and he was compelled to seek employment in different countries on the Continent. He eventually came to England, and after teaching Italian for a time he started a motor garage. In 1916 a friend named Kelsey took him from time to time to Murray's Club. In September of that year, when he was recovering from a very bad accident, when his hands had been badly burned by petrol, he went again to Murray's Club. There he was introduced to the respondent, whom he at first knew only as "Maisie." She seemed to take a great fancy to him. He saw her home that night. She said that she was going to Manchester, and she wrote to him twice from there, and he met her on her return to London. A few days later she told him that she was unhappy and aroused his sympathy. She said she wanted him to be "something" to her. She told him she would come for him on the next day and take him to some place where she would have everything ready, and he would have to put his signature to some formality and afterwards they would see. It was just a form, merely a matter of going before a man in an office. He thought nothing of it, and, indeed, treated as a joke. In fact, the respondent obtained a marriage licence, saw the registrar, and paid the expenses.

On the 14th Sept. 1916 he and the respondent went through a ceremony of marriage at the register office of St. Giles, but he had not the smallest idea that he was contracting a marriage. The respondent took him to the register office, did all the talking, and produced the ring. He merely answered one or two questions and signed-with difficulty owing to his injured hand-a document. He never saw this document for a moment, as the respondent at once took it and put it in her bag. She then went to see a theatrical agent, but returned in the evening, and there was a conversation. He asked her to tell him exactly what they had done. She said that since he had signed the register he must consider himself to be her husband. He said that surely some other ceremony than a mere signature must be necessary. He had in mind the formalities customary in Italy, where an engaged couple have to attend at the town hall with witnesses and sign, and then wait some three weeks until they obtain an official permit to allow the marriage to proceed. The marriage then takes place, first at the town hall, and afterwards, if it is desired, in church. He said he could not realise it, and it was very funny if they could get married like that. She said that if he did not like it, it was very easy in England to be free by going to the Divorce Court.

He was very much worried, but he accepted the situation and promised to be a good husband. The wife then went out, saying that she

[Div.

would return after she had dressed. She never returned. The marriage was never consummated, and in all the years which had passed since then he had only seen her three times. To this day he did not know why she had ever wished him to go through the ceremony.

He was staying at that time at the Portland Hotel, but he moved to the Grafton Hotel and took a double room there, but the respondent did not come to him. After six days he returned to the Portland Hotel. The respondent went to the Grafton Hotel and tried to get possession of his motor car. He had already said that he could not give her that, as he had it on the hire-purchase system. She, however, made certain representations to the garage and obtained the car, and he had to recover possession and return it to the owner.

In Aug. 1917 the respondent called upon him and asked him to get her an Italian passport by registering the marriage at the Italian Consulate. The British and Italian authorities would not grant a passport as the marriage had never been registered as the Italian law required. He and a friend named Modiano went to the Italian Consul and confirmed this. He then drew up a document drafted by Modiano and gave it to the respondent. The document was as follows:

Since I've seen you this morning I found out that the Italian Consulate is unable to do anything on your behalf unless I first register our marriage with them. It was my intention to do that the very first week I married you; but you clearly made me understand the inopportunity of such a step and I did not. The greatest aim of my life is to get my freedom back, and no doubt you want the same. As the Italian law does not recognise divorce we should be wife and husband for ever, but which honestly I object to as well as you do, I suppose. I therefore, see myself compelled to refuse to comply with your desire in order to safeguard my possible future freedom.

The respondent soon afterwards went abroad, and he never saw her again until the hearing of the case to-day. In 1918 he went to Italy to serve in the Italian Army, and in 1920 he received a letter from the respondent, in which she said that she had found his address by chance, and was going to take steps to get a divorce. He replied that he was quite agreeable to the annulment of the marriage, and was only puzzled as to why she had ever married him. She answered that by a letter informing him that she had got a "divorce nisi.” He therefore regarded himself as free and on the 2nd Dec. 1922 he married the Marchesa Balbi in Milan, and had lived with her ever since. He had enemies in Italy, and they had made trouble, which had resulted in charges of bigamy being made against him and against the Marchesa. The charge against her had been withdrawn, but the charge against him had been suspended pending the present proceedings.

Evidence was also given for the Conte by an expert in the law of Italy as to the law and custom of that country with regard to a formal and public ceremony of betrothal, preceding