Cruelty to Animals Act 1850 No 40a (NSW)

No. XL.

An Act for t h e m o r e effectual p r e v e n t i o n of

2. And be it enacted That every person who shall keep or use or act in the management of any place for the purpose of fighting or baiting any bull bear badger dog cock or other kind of animal whether of domestic or wild nature or shall permit or suffer any place to be so used shall be liable to a penalty not exceeding five pounds for every day he shall so keep or use or act in the management of any such place or permit or suffer any place to be used as aforesaid Provided always

Crue l ty to An ima l s . [1st October, 1850.]

the mischiefs arising from the improper driving of cattle Be it there­WH E R E A S it is necessary to make more effectual provision for the prevention of the cruel and improper treatment of animals and

fore enacted by His Excellency the Governor of New South Wales by and with the advice and consent of the Legislative Council thereof 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.

always that every person who shall receive money for the admission of any other person to any place kept or used for any of the purposes aforesaid shall be deemed to be the keeper thereof and every person who shall in any manner encourage aid or assist at the fighting or baiting of any bull bear badger dog cock or other animal as aforesaid shall forfeit and pay a penalty not exceeding five pounds for every such offence.

3. And be it enacted That if any person shall by cruelly beat- ing ill treating over-driving abusing or torturing any animal do any damage or injury to such animal or shall thereby cause any damage or injury to be done to any person or to any property every such offen­ der shall on conviction of such offence pay to the owner of such animal (if the offender shall not be the owner thereof) or to the person who shall sustain damage or injury as aforesaid such sum of money by way of compensation not exceeding the sum of ten pounds as shall be ascertained and determined by the Justice of the Peace by whom such person shall have been convicted Provided always that the payment of such compensation or any imprisonment for the non-payment thereof shall not prevent or in any manner affect the punishment to which such person or the owner of such animal may be liable for or in respect of the beating ill treating or abusing of the said animal Pro­ vided also that nothing herein contained shall prevent any proceeding by action against such offender or the employer of such offender where the amount of damage or injury is not sought to be recovered under this Act.

4. And be it enacted That if any person shall convey or carry or cause to be conveyed or carried in or upon any vehicle any animal in such a manner or position as to subject such animal to Unnecessary pain or suffering every such person shall forfeit and pay a penalty not exceeding five pounds for every such offence.

5. And be it enacted That when and so often as any of the offences against the provisions of this Act shall happen it shall and may be lawful for any constable upon his own view thereof or upon the complaint and information of any other person who shall declare his or her name and place of abode to the said constable to seize and and secure by the authority of this Act any such offender and forthwith without any other authority or warrant to convey such offender before a Justice of the Peace to be dealt with by such Justice for such offence according to law.

of this Act shall be made within one calendar month after the cause G. And be it enacted That every complaint under the provisions
of such complaint shall arise and every offence committed against this
Act may be heard and determined by any Justice of the Peace within whose jurisdiction such offence shall be committed in a summary way upon the complaint of any person and without any information in writing and it shall be lawful for any such Justice in all cases where any person complained of shall not be in custody to summon such person to appear before such Justice or before any other Justice of the Peace at a time and place to be named in such summons and on the appearance of the party accused or in default of such appearance upon proof of the service of such summons the said Justice or any other Justice who shall be present at the time and place appointed for such appearance shall proceed to examine into the matter and if upon the confession of the party accused or on the oath of one or more credible witness or witnesses the party accused shall be con­ victed of having committed the offence charged or complained of the party so convicted shall pay such penalty damage or compensation as the said Justice shall according to the provisions of this Act adjudge order or award together with the costs of conviction to be settled by

such

such Justice or be otherwise deal t with according to the provisions of

th is Act.

7. And be it enacted That any s u m m o n s issued by any such

Justice r equ i r ing the appearance of any party charged as an offender
aga ins t any of the provisions of th i s Act shal l be deemed and taken to
be well and sufficiently served in ease ei ther the summons or a copy
thereof shal l be served personal ly on such person as aforesaid or shall

be left at his usua l or last k n o w n place of abode in whatever place such
s u m m o n s may be served or left.

8. And be it enacted That any Justice of the Peace may with­

out i ssu ing any such summons as aforesaid for thwith issue his war r an t
for the apprehens ion of any person charged wi th any offence against

the provisions of th i s Act whenever good grounds for so doing shall

be stated on oath before such Justice.

9. And be it enacted That any Justice of the Peace may sum­
mon any wi tness to appear and give evidence before him upon the

m a t t e r of any offence agains t the provisions of th i s Act and if any such witness shal l after t ender of his reasonable expenses in that behalf neglect or refuse to attend at the t ime and place s ta ted in such s u m m o n s then proof on oath being first given of the personal service

of t he s u m m o n s upon such witness and of such t ender of expenses such Justice may issue his w a r r a n t for the apprehens ion of such witness and such Justice may commit any witness appear ing or be ing b rough t
before him who shall refuse to give evidence to the house of correct ion

or common gaol wi th in the jurisdiction of such Justice the re to

remain wi thou t bail or mainpr i se for any t ime not exceeding twenty-one days or u n t i l such witness shall sooner submi t himself to be examined
and to give evidence and in case of such submission the order of such Justice shall be a sufficient war ran t for the immedia te discharge of such

witness from custody.

10. And be it enacted That in every case of a convict ion u n d e r
th is Act where the sum imposed as a pena l ty or the a m o u n t awarded

for compensat ion or damage together w i t h costs (if any) by any Justice of the Peace for or in respect of any offence agains t the provisions of

this Act shal l not be pa id immedia te ly upon the conviction or within such t ime as the convict ing Justice shall in the exercise of his discre­ t ion appoin t and l imit in that behalf it shal l be lawful for such Justice

and he is hereby requi red to commit the offender to the house of
correct ion the re to be imprisoned wi th or wi thout ha rd labor for any t ime not exceeding two calendar m o n t h s unless paymen t be sooner

two Justices it shall be lawful for such Justices if t hey shall t h i n k fit	made Provided always that if such conviction shall t ake place before
ins tead of impos ing a pecun ia ry pena l ty forthwith to commit any such offender to the common gaol or house of correction the re to be impr i ­ soned wi th or wi thou t ha rd labor for any t ime not exceeding th ree calendar m o n t h s and in all proceedings unde r th is Act the informer or p a r t y prosecut ing shall bo deemed and taken and is hereby declared to
be a competent witness.

11. And be it enacted That whenever any person hav ing charge

of any vehicle or any an imal shal l be t aken in to custody by any

constable for any offence against the provisions of th i s Act it shal l be
lawful for such constable to take charge of such vehicle or an imal and
deposit the same in some place of safe custody as a securi ty for pay­ m e n t of any pena l ty to which the person hav ing had charge thereof or the owner thereof may become liable and for paymen t of any expenses which may have been or may be necessarily incur red for t a k i n g charge of and keep ing the same and it shall be lawful for any

Justice of the Peace before w h o m the case shall have been hea rd to
order such vehicle or such animal to be sold for t h e purpose of

satisfying

satisfying such penalty and reasonable expenses in default of payment

thereof in like manner as if the same had been subject to be distrained

and had been distrained for the payment of such penalty and expenses.

12. And be it enacted That in case any person shall at any time

or in any manner lawfully obstruct hinder molest or assault any con­ stable while in the exercise of any power or authority under or by virtue of this Act every such person shall forfeit and pay a penalty not exceeding five pounds for every such offence.
13. And be it enacted That all fines forfeitures and penalties imposed by this Act shall be paid one moiety to Her Majesty Her Heirs and Successors for the public uses of the said Colony and in
support of the Government thereof and be applied in such manner as may from time to time be directed by any Acts of the said Governor and Legislative Council and the other moiety to the use of the informer

or party prosecuting.
14. And be it enacted That when any complaint shall be made
before any Justice of the Peace against the driver or conductor of any

hackney carriage or the driver or conductor of any stage carriage or the driver of any cart wagon van or other vehicle for any offence

committed by him against the provisions of this Act it shall be lawful for such Justice if he shall think proper forthwith to summon the

proprietor of such hackney or stage carriage or the owner of such cart

wagon van or other vehicle to produce before him the driver conductor or other servant by whom such offence was committed to answer such
complaint and in case such proprietor or owner after being duly sum­ moned shall fail to produce the driver conductor or servant it shall be
lawful for the Justice of the Peace before whom such driver conductor or servant shall be required to be produced if he shall think fit to proceed in the absence of such driver conductor or servant to hear and

determine the case in the same manner as if he had been produced and to adjudge payment by the proprietor or owner of any penalty or sum

of money and costs in which the driver conductor or servant shall be

convicted and any sum of money which shall be so paid by the proprietor or owner shall and may be recovered in a summary way from the driver

conductor or servant through whose default such sum shall have been paid upon proof of payment thereof and of such servant's refusing or neglecting to be produced pursuant to the order of the Justice in the same manner as penalties are to be recovered under the provisions of this Act Provided always that if the said Justice of the Peace shall deem

it proper it shall be lawful for him when such proprietor or owner
shall fail to produce his driver conductor or servant without any
satisfactory excuse to be allowed by such Justice to impose a fine of
forty shillings upon such proprietor or owner and so from time to

time as often as he shall be summoned in respect of such complaint

until he shall produce the said driver conductor or servant.

15. And be enacted That every conviction for any offence

against this Act may be drawn and made according to the following

form or to the effect thereof or as near thereto as the case shall permit—

to wit. )

Be it remembered that on the	day of
in the year of our Lord	A . B. is brought

before me (or us) a Justice (or Justices)

of the Peace for the (here insert the city town or other

jurisdiction of the Justice or Justices) and is charged

before me (or us) with having (here describe the offence)
contrary to the provisions of a certain Act passed in the fourteenth year of the reign of Her present Majesty intituled " An Act for the more effectual prevention of

Cruelty

Cruelty to Animals" and it appearing unto me (or us) upon the confession of the said A . B. (or upon the oath of a credible witness or witnesses as the case may be) that the said A . B. is guilty of the said offence I (or we) do therefore adjudge the said A . B. (here insert the adjudi­

cation) Given under my (or our) hand (or hands) at (here insert the place where the Justice or Justices may be)

the day and year first above written.

16. And bo it enacted That every Justice of the Peace before

whom any person shall be convicted of any offence against this Act

shall transmit the conviction to the next General or Quarter Sessions
which shall be holden in or nearest to the district or place wherein
the offence shall have been committed there to be kept by the proper
officer among the records of the said Court.
17. And be it enacted That in all cases where the sum adjudged to be paid on any conviction shall exceed two pounds and in all cases
where imprisonment shall be adjudged any person who shall think himself aggrieved by any such conviction may appeal to the next
Court of General or Quarter Sessions which shall be holden not less
than fourteen days after the day of such conviction in or nearest to
the district or place wherein the cause of appeal shall have arisen Provided that such person shall give to the complainant a notice in writing of such appeal and of the cause and matter thereof within three days after such conviction and seven clear days at the least
before such Sessions and shall also cither remain in custody until the
Sessions or enter into a recognizance with two sufficient sureties before a Justice of the Peace conditioned personally to appear at the said Sessions and to try such appeal and to abide the judgment of the Court thereon and to pay such costs as shall be by the Court awarded and upon such notice being given and such recognizance being entered into the Justices before whom the same shall be entered into shall liberate such person if in custody and the Court at such Sessions shall hear and determine the matter of the appeal and shall make such order therein as to the Court shall seem meet and in case of the dismissal or non-prosecution of the appeal or the affirmance of the conviction shall order and adjudge the offender to be punished according to the con­ viction and to pay such costs as shall be thereby awarded and also the costs of such appeal or incident thereto or occasioned thereby and shall if necessary issue process for enforcing such judgment Provided
always that it shall be lawful for the said Court to adjourn the hearing
of any such appeal to any succeeding Sessions if such Court shall think
fit and such Court in the event of such postponement may make any
order for the payment of costs not to exceed in any case the sum of ten pounds by either party to the other as to such Court shall seem reasonable.
18. And be it enacted That no conviction made under the authority of this Act nor any order judgment or proceeding relative thereto shall be quashed for want of form or be removed by certiorari
or otherwise into Her Majesty's Supreme Court and no warrant of
commitment under the provisions of this Act shall be held void by reason of any defect therein provided it be therein alleged that the party committed has been convicted and there be a good and valid conviction to sustain the same.
19. And be it enacted That no action shall be brought against any Justice of the Peace or other person for anything done in pursuance or under the authority of this Act unless such action shall be commenced within three calendar months next after the fact com­ mitted and no such action shall be commenced until one calendar month at least after a notice in writing of such intended action shall

4 D—VOL. 3. have

have been delivered to the defendant or left for him at his usual place
of abode by the party intending to commence such action or by his

attorney or agent in which said notice the cause of action shall be

clearly and explicitly stated and upon the back thereof shall be indorsed

the name and place of abode of the party so intending to sue and also the name and place of abode or of business of the said attorney or agent

if such notice have been served by such attorney or agent and the

defendant in any such action shall be allowed to plead the general issue therein and to give any special matters of defence excuse or justifi- cation in evidence under such plea at the trial of such action and in every such case after notice of action shall be given as afore­ said and before such action shall be commenced the defendant to
whom such notice shall be given may tender to the party com­
plaining or to his attorney or agent such sum of money as ho may think fit as amends for the injury complained of in such notice and after such action shall have been commenced and at any time

before issue joined therein such defendant if he have not made such
tender shall be at liberty to pay into Court such sum of money as he may think fit and which said tender and payment of money into Court or either of them may be afterwards given in evidence by the defendant at the trial under the general issue aforesaid and if it shall be found at the trial that the plaintiff is not entitled to damages
beyond the sum tendered or paid into Court or beyond the sums so

tendered and paid into Court the defendant shall be entitled to a verdict and the plaintiff shall not be at liberty to elect to be nonsuit and the sum of money if any so paid into Court or so much thereof as shall be sufficient to pay or satisfy the defendant's costs in that behalf shall thereupon be paid out of Court to him and the residue if any shall be paid to the plaintiff or if where money is so paid into Court in any such action the plaintiff shall elect to accept the same in satisfaction of his damages in the said action he may obtain from any Judge of the Court in which such action shall be brought an order that such money shall be paid out of Court to him and that the defendant shall pay him his costs to be taxed and thereupon the action shall be determined and such order shall be a bar to any other action for the same cause.
20. And be it enacted That if at the trial of any such action the plaintiff shall not prove that such action was brought within the time hereinbefore limited in that behalf or that such notice as aforesaid was given one calendar month before such action was commenced or

if he shall not prove the cause of action stated in such notice then	and in every such case such plaintiff shall be nonsuit or the defendant
shall be entitled to a verdict and the defendant shall in all cases
where he shall obtain judgment upon verdict or otherwise be entitled
to his full costs in that behalf to be taxed as between attorney and client.
21. And be it enacted That for the purposes of this Act the following words and expressions are intended to have the meanings
hereby assigned to them respectively so far as such meanings are not excluded by the context or by the nature of the subject matter (that is to say) the word " Justice " shall be taken to mean a Justice
of the Peace or Magistrate for the city town or other jurisdiction in
which any offence against this Act shall be committed or in which
the matter requiring the cognizance of any Justice of the Peace or Magistrate shall arise the word " animal" shall be taken to mean any horse mare gelding bull ox cow heifer steer calf mule ass sheep lamb
hog pig sow or goat or any dog cat or other domestic animal and
subject to the context and to the nature of the subject matter words denoting the singular number are to be understood to apply to a plurality of persons animals or things and words denoting the

masculine

masculine gender are to be understood to apply also to persons and animals of the feminine gender and the word " over-drive " shall also

signify over-ride.
22. And be it enacted That this Act may he amended or repealed by any Act to be passed in the present Session of the Legis­

lative Council of New South Wales.