Nelson Supreme Court.

Marlborough Express, Volume III, Issue 97, 18 January 1868, Page 5

Nelson Supreme Court.

SITTINGS IN BAFT CO. FRIDAY, JANUARY 3, 183s7"'"" [Before His Honor Mr. Justice Richmond.] CATOX V. FKARON. His Honor gave judgment in this ease for defendant, on the grounds that although there was in the defendant’s evidence a material variance from the pleaded defence, the evidence did, nevertheless, go to the question at issue between the parties, viz., the character of a payment of £BOO by Mr. Tetley to plaintiff, and it was found by the jury that this payment had been made on defl miaul’s behalf. The variance was not therefore material to the merits. IMPORTANT APPEAL CASE UNDER “THE CATTLE TRESPASS ACT.” WORTHINGTON V. THOMAS. This is a cu e of considerable importance to all persons whoso lands are liable to be trespassed on by the sheep or cattle of others. The history of the case in which T. K. Worthington is appellant, and J. H. Thomas (the plaintiff in ihe aetion in the Court Inflow) is the respondent, was stated by Mr. Win. Adams on behalf of the appellant. In October lasr, an action under the “ Cattle Trespass Act, 1866,” was brought in the Justice of Peace Court at Richmond by Mr. Thomas against Mr. Worthington, claiming damages for 13 different acts of trespass by sheep, belonging to the present appellant (Worthington), on the lands of the present respondent (Thomas). After hearing evidence, and tie objection, taken inter alia, at the time, by Mr. Acton Adams on behalf of Mr. Worthington, that the action was illegal as the proper notice had not been given in accordance with the Act, the Court at Richmond gave judgment in favour of Thomas for £l2 7s. 2ld. the amount claimed for trespass and driving, with costs. This was the decision now appealed against. Mr. W. Adams quoted the notice which was published in the Golonist by respon dent during the month of February ; and which advertisement set forth that “ The provisions of the ‘ Cattle Trespass Act, 1866,’ will he enforced on my land [land here specified] from and after the date of this notice. J. H. Thomas. Moutere, Feb. 4, 1867.” In continuation, it was contended for appellant that this notice did not entitle respondent to claim damages for cattle trespassing on unenclosed land, which in the Court below this was actually proved to be, inasmuch as only three sides were enclosed, and the fourth, bounding the land of the . appellant, was not enclosed. In proof of this argument Mr. Adams quoted (Section 5 of the “ Cattle Trespass Act,” as follows:

“ 5. Provided always that unless the lawful occupier of such land shall have given notice once a week for one calendar month in some newspaper generally circulated in the district of his intention to claim damages for cattle trespassing upon unenclosed land , no cattle shall be impounded for trespass upon such unenclosed land , nor shall damages he recovered or received in respect oj any such trespass, nor shall any charges be made for driving such cattle It was perfectly clear, continued Mr. Adams, that this distinct provision of the Act had not been complied with by the respondent; and the true intent and meaning of this provision was, that a particular and clearly defined notice should be given before either damages for trespass or for driving could be recovered, and hej quoted the opinion of English Judges touching the construction of Acts of Parliament to the effect that “ if the words of the statute are of them selves : precise ‘and ' unambiguous/no mef6 can be

necessary than to expound those words in their natural and ordinary sense. According to the law thus clearly laid down, a notice given in such general terms as the advertisement was in this case, was not sufficient; for it should have distinctly and precisely specified the intention of respondent to claim damages, as allowed to the Act.

The Judge: Priraa facie, and of course until I hear whether Mr. Pitt can adduce anything to overturn the argument, I am with you Mr. Adams on this objection. I think the occupier of land was bound to specify his intention of claiming damages in terms of the Act.

s Mr. Adams said he had another point to 1 raise. Another objection was taken before [ the Justices, to the effect that at the most > only £5 was recoverable, even if the right ; to claim damages had existed (which was denied). In support of this argument, i Section 2of the Act was quoted as follows : F 2. “ Wherever any cattle shall trespass ■ upon mi fenced land, or upon land which shall not be substantially fenced, the occupier of such land not having impounded such cattle as hereinafter provided, may recover before any Resident Magistrate or two Justices of the Peace, the amount set forth in Schedule A to this Act, for each day on which such cattle shall have been found trespassing, without proof of any damage having been done by such cattle. Provided always that no greater sum shall be recovered in respect of such trespass than three shillings per head, nor exceeding in the whole the sum of £5.” This objection was also taken before the Justices at Richmond, but was by them overruled like the other. He (Mr. Adams) thought that this clause really restricted the sum to be recovered to £5 ; whereas £l2 odds had been claimed and awarded against the appellant, which he argued was an exercise of power in excess of that given by the Act. He therefore claimed a reversal of the decision of the Justices. Mr. Pitt, for the respondent, contended that the Court should conclude that there had been trespass on unenclosed land ; and that the notification given refening to the provisions of the Act was of itself sufficient: that it was not necessary to intimate further any intention to claim damages. The Judge: You should have included the whole, this you should have done and not have left the other undone. Mr. Pitt said that the whole included a part. It was distinctly notified that the “ provisions of the Act ” would be enforced, and amongst these provisions is a right to claim damages. Resides, everyone was supposed to know the meaning and intention of the Act. The Judge; But no one is supposed to know the intention of the party advertising unless that intention is specially notified as the Act directs. Mr. Pitt again pointed to the general terms of the notice respecting the enforcing of the provisions of the Act, and to the fact that his client had been careful in specifying the particular sections of land on which these provisions were to be enforced. As for the second objection, that the sum claimed and given judgment for was in excess of the amount allowed by the Act, Mr. Pitt argued that the limitation to £5 clearly meant to fix a limit to each case of trespass. The Act (section 2), “provided that no greater sum shall be recovered in respect of such trespass , &c., not trepasses; and again in section 3, “ provided that in no case ” —that was to say in no single case or instance of trespass —“ shall the charge for driving exceed the sum of £5.” Jn this case there were thirteen acts or cases of trespass, and as many drivings; so that he contended this objection was untenable. The Judge said : I am agreed with Mr. Pitt that the second objection is not valid. The question in the case is whether the advertisement is sufficient to entitle the respondent to damages for trespass committed on his land. The Act founded on contains provisions for compensating damages for trespass on fenced and on unfenced land, or land not substantially fenced; but it also contains distinct provision that no damages shall be given for trespass on unenclosed land unless the owner or occupier shall give public notice of his intention to claim such damages; and unless such notice be given, not only shall no damages be received, but no cattle shall be impounded for trespass on sach unenclosed land, nor shall any charg< s ' be made for driving such cattle. It was clear, therefore, that with respect to unen- ' closed land, a notice of intention to claim, damages for trespass of cattle thereon must 1 be given by the occupier. lam of opinion ' that the notice given in this case is insuffi- ! cient, and does not comply with the terms : of the Act, as' if 'docs not state the inton- : tion to claim damages. ‘The judgment of 1 the Court below must 'therefore be reversed” 1 and, as the practice is in the case of a sue- ! ce.jsful appellant, with-costs.’ Appeal- ul- i lowed with costs.— Colonist. <