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Canterbury Trespass of Cattle Ordinance 1872

13. Canterbury Trespass of Cattle Ordinance 1872

[19^th June 1872.]

Whereas it is expedient to amend the law relating to the Trespass of Cattle within the Province of Canterbury:

Be it therefore enacted by the Superintendent of the Province of Canterbury with the advice and consent of the Provincial Council thereof as follows:

1. Repealing clause.

“The Trespass of Cattle Ordinance 1869” is hereby repealed except as to any proceedings already commenced or taken or matters done or liabilities or penalties incurred under the said Ordinance.

2. Interpretation clause.

In the interpretation of this Ordinance the word “Cattle” unless otherwise specially defined shall be deemed to include all horned and neat cattle horses mules asses sheep goats and swine of all ages and of either sex and the words “Owner of Cattle” shall be taken to mean the person having the lawful charge control and management of such cattle and the term “Sufficient Fence” shall be taken to mean any fence of the several kinds described in the Schedule A to this Ordinance the smallest part in which shall be of not less dimensions than those set forth in the same Schedule The term “Fenced Land” shall mean land enclosed by a sufficient fence within the meaning of this Ordinance and the term “Ordinary Damages” shall be deemed to be the amount of damages in every case respectively according to the scale set forth in the Schedule B to this Ordinance and the words “Special Damages” shall be deemed to be the amount of actual damage to the occupier which it shall be proved to the satisfaction of the Court has been caused by the trespass of any cattle and the word “Residence” of the owner of any cattle shall be taken to mean the nearest known residence or homestead in use by the owner of such cattle and the word “Occupier” of any land shall be taken to mean the person having the use or occupation of such land or holding a license from the Crown for the depasturing of cattle thereupon or the agent bailiff or servant of any such person and the words “the nearest Public Pound” shall be taken to mean such public pound as any Court before whom any question arising under this Ordinance shall be heard shall deem the most convenient for the purpose having regard to the circumstances of each case.

3. Cattle to be impounded only under provisions of this Ordinance. From and after the passing of this Ordinance no cattle shall be impounded except only under the authority and in accordance with the provisions of this Ordinance.

4. Cattle straying in streets or thoroughfares.

If any cattle shall be at any time found straying in or lying about any street thoroughfare highway or other public place or across any part thereof or shall be found tethered in any street thoroughfare highway or other public place or so immediately adjoining to such street thoroughfare or other public place as to obstruct the same it shall be lawful for any person to drive the same to the nearest Pound and the owner thereof shall be liable to a penalty not exceeding forty shillings This section shall not apply to cattle owned by any licensee of Crown Lands if such cattle are depasturing on roads over which he has a right of pasturage.

5. Cattle trespassing upon any land.

If any cattle shall be found trespassing upon any land it shall be lawful for the occupier of such land or of the pasturage thereof thereupon to take such cattle and either to drive them to the residence of the owner or to the nearest public Pound or to detain them on his own land at some convenient place and immediately thereupon to give notice of such detention at the residence of the owner thereof and such occupier shall be entitled to recover from the owner of such cattle ordinary damages and charges for driving the same or for giving notice of the detention of the same according to the scale respectively set forth in Schedules B and C to this Ordinance Provided also that such occupier may demand the payment of such ordinary damages before restitution of such cattle, but if such occupier shall claim special damages then such cattle shall not be detained if application be made by the owner for their restitution. Provided also that no owner or occupier of any unfenced freehold land shall be entitled to demand or recover any damages whatever by reason of the trespass thereon of any cattle or any fees for driving or for giving notice of the detention of such cattle.

6. Entire animals wandering at large.

If any bull ram boar entire horse ass or mule shall be found wandering at large on land not being in the lawful occupation of the owner of such animal or upon any street thoroughfare highway or other public place it shall be lawful for any person thereupon to impound the same and the owner thereof shall be further liable to a penalty not exceeding ten pounds.

7. Damages how recoverable.

Any person entitled to claim ordinary damages for any trespass done by cattle not having impounded such cattle may recover such damages in the ordinary course of law and if he shall have impounded such cattle such damages shall be paid to him by the Poundkeeper as hereinafter provided.

8. Cattle trespassing upon fenced land.

If any cattle shall be found trespassing upon any fenced land the occupier thereof shall be entitled to recover from the owner of such cattle either ordinary damages or special damages as he shall think fit and such occupier may recover the same in the due course of law.

9. Pigs or goats found trespassing.

If any pigs or goats shall be found trespassing on any land whether fenced or unfenced the occupier or owner of such land may recover from the owner of such pigs or goats damages at the rate of one shilling per head and if any pigs or goats the property of the same owner shall trespass on such land within the space of three months after the first trespass such occupier may recover from such owner damages at the rate of two shillings per head for every pig or goat so trespassing Provided that such occupier may either drive such pigs or goats or cause them to be conveyed to the residence of the owner or to the nearest public Pound and may recover from the owner the reasonable expenses of so doing or such occupier may give notice to the owner of such pigs or goats that they are so trespassing and if such owner shall not forthwith remove such pigs or goats he shall pay to such occupier damages at the rate of three shillings per head for every pig or goat so trespassing.

10. Pounds to be erected and maintained.

It shall be lawful for the Superintendent to cause public Pounds to be erected and maintained within the province and from time to time abolish or remove the same and all such Pounds shall be situate immediately adjoining some public highway and a notification of every such establishment abolition or removal of a public Pound shall appear in the Government Gazette of the province setting forth fully the situation of such Pound or the situation to which it is removed as the case may be together with the day being not less than ten clear days after the issue of such Gazette from and after which such establishment abolition or removal shall take effect.

11. Poundkeepers to be appointed.

It shall be lawful for the Superintendent by writing under his hand to appoint fit and proper persons to be Poundkeepers and from time to time to remove the same and to appoint others in their stead and every such appointment or removal shall take effect from the day upon which the same shall be notified in the public Gazette of the province.

12. Poundkeepers to give security.

Every Poundkeeper shall give security for the due performance of the duties of his office by bond to the amount of fifty Pounds by himself and two sureties being substantial householders of the province.

13. Duties of Poundkeeper.

It shall be the duty of the Poundkeeper to keep the Pound under his charge clean and in good order and the fences thereof in proper repair and every day or part of a day not being less than six hours during which any cattle shall be in the Pound to supply such cattle with a sufficient quantity of wholesome food and water and for every offence either by wilful act or by neglect against the provisions of this clause the Poundkeeper shall be liable to a penalty not exceeding five pounds and not less than one pound.

14. Poundkeepers may demand fees, &c.

It shall be lawful for the Poundkeeper to demand and receive from the owner of any cattle impounded all such fees and charges as are set forth in the Schedule D to this Ordinance on account of the several services therein described and the Poundkeeper shall until the Superintendent shall notify his intention to hand over the control of the Pound to the Road Board or Municipality within the jurisdiction of which any Pound may be situate account for all such fees and charges to the Provincial Treasurer or to any Sub-Treasurer as the Superintendent may from time to time direct once in every quarter on the first days of January April July and October respectively and all such fees and charges shall be first applied in payment of the salary or remuneration of the Poundkeeper and any surplus after the payment of such salary or remuneration shall be paid to the public account of the province.

15. Poundkeeper to erect and maintain board with fees.

The Poundkeeper shall erect and maintain in some conspicuous part of the Pound under his charge a white board having painted thereon with table of fees. in legible black letters a table of all the fees and charges which he is authorised by this Ordinance to demand and receive and if he shall fail to maintain the same or shall permit any false statement to appear thereon lie shall be liable to a fine of five shillings for every day during which any false statement shall appear thereon.

16. Penalty for demanding or taking greater sum than authorised.

If any Poundkeeper shall demand or take any greater sum for any act or service than he is hereby authorised to demand and take or shall fall duly to account for the fees and charges received by him in the manner hereinbefore provided such Poundkeeper shall be liable to a penalty not exceeding five pounds nor less than one pound for every such offence.

17. Poundkeeper to keep copy of Ordinance, register of brands, and poundbook.

The Poundkeeper shall keep at or near the Pound a copy of this Ordinance and a copy of the Register of Brands required to be kept under the provisions of the Sheep Ordinance which shall be supplied by the Government free of cost and also a Pound-book in the form set forth in Schedule B to this Ordinance and he shall enter into such book every particular required to be entered therein according to the said form and all such entries shall be made at the time the acts were done to which they refer respectively and every entry respecting the time of impounding any cattle and the cause for which they were impounded and the amount of damages claimed shall be entered in the presence of the person impounding such cattle and shall be signed by such person and the Poundkeeper shall produce the copy of this Ordinance and the Pound-book and all orders and other papers relating to the impounding of any cattle at all reasonable times to any person desiring to inspect the same and may demand and receive the sum of sixpence for every such inspection and the Poundkeeper shall if required grant certified extracts from such books and papers and may demand and receive the sum of one shilling for every such extract not comprising more than one hundred words and for every subsequent number of words not exceeding one hundred the sum of six-pence.

18. Poundkeeper neglecting to produce Ordinance or poundbook.

If the Poundkeeper shall neglect or refuse to produce a copy of this Ordinance or the Pound-book or any paper in his possession relating to the impounding of any cattle or shall refuse to permit any one having first tendered the charge hereby authorised to be demanded to make such inspection as aforesaid or shall refuse to furnish extracts from such books or papers as hereinbefore provided or if he shall have neglected to make any entry in the Pound-book which he is hereby required to make he shall for every such offence or default be liable to a penalty not exceeding five pounds and if such Poundkeeper shall wilfully delay making such entry or shall knowingly make any false entry in the Pound-book or shall wrongfully erase or destroy any previous entry therein he shall be liable for every such offence to a penalty not exceeding ten pounds.

19. Poundkeeper liable for loss or damage to cattle impounded.

All cattle impounded shall be in the lawful custody of the Poundkeeper and if any loss or damage shall occur to such cattle through the wilful act or neglect of the Poundkeeper or his servant the owner thereof may recover compensation for the same in a summary way and the Poundkeeper shall not release such cattle from the Pound unless upon the payment of all lawful fees charges and damages which he is herein entitled to demand and receive and except upon the written authority of the person impounding the same and payment of such lawful fees and charges and it shall be his duty immediately upon such payment or upon such authority together with such payment as aforesaid to release and deliver up such cattle and if the Poundkeeper shall at any time release cattle from the Pound except as herein provided or refuse to deliver up and release such cattle as he is lawfully required so to do he shall be liable to a penalty not exceeding five pounds.

20. Damages claimed shall be demanded from person taking delivery.

If the person impounding any cattle shall state to the Poundkeeper that he claims “ordinary damages” or “charges for driving cattle” or “charges for giving notice of the detention of cattle” as set forth in Schedules B and C respectively hereto annexed in satisfaction of the trespass for which such cattle are impounded and shall state the amount of such damages or charges and shall certify to the same in the Pound-book the Poundkeeper shall demand and he is hereby empowered to demand and receive such amount in addition to all other lawful fees and charges from the person taking delivery of such cattle and the Poundkeeper shall pay over such amount on demand to the person having claimed the same The person impounding any cattle shall state in writing to the Poundkeeper the place where the cattle were found and the name of the owner thereof if such name be known to him.

21. Impounded cattle not claimed within twenty-four hours.

If any impounded cattle shall not be claimed within twenty-four hours after such impounding the Poundkeeper shall immediately twenty send notice in writing to the owner thereof together with an extract from the Pound-book containing all the particulars of the impounding of such cattle and the amount of “ordinary damages” claimed if any and shall further state the day upon which such cattle will be sold if not sooner released and such notice shall be delivered personally

to the owner or shall be given to some adult person at his usual place of abode Provided that if such owner shall live at a greater distance than twenty miles from the Pound such notice shall be given to any one being his known agent living within such distance and if neither the owner nor his agent shall be living within such distance or if the owner shall not be known to the Poundkeeper ,then the Poundkeeper shall post such notice at the Pound and at some other place of public resort in the neighbourhood and shall advertise the same in one or more public newspapers of the nearest town and shall cause such advertisement to appear twice at least before the day of sale of such cattle in such advertisement the place where the cattle were found by the person impounding the same and the name of the owner if known shall be stated Provided that if such cattle shall not be more than two in number it shall not be necessary to give any other notice of such impounding than by posting such notice as aforesaid on the Pound and at some other place of public resort in the neighbourhood and for giving such notices the Poundkeeper shall be entitled to receive the fees set forth in Schedule F hereto annexed together with the full cost of inserting such advertisements in the newspapers.

22. Impounded cattle not released after notice has been served or posted. If any impounded cattle shall not be released from the Pound within seven clear days after notice shall have been served as aforesaid or within fourteen clear days after such notice shall have been posted as aforesaid the Poundkeeper shall forthwith proceed to sell the said cattle and every such sale shall take place at the Pound and shall commence at the hour of noon and each animal shall be put up in a separate lot and shall be sold to the highest bidder (provided that any sucklings maybe put up in the same lot with the mother thereof) and the Poundkeeper notwithstanding he shall not be duly licensed is hereby empowered to act as auctioneer at such sale Provided that it shall not be lawful for the Poundkeeper or the person impounding such cattle either directly or indirectly to purchase any animal at such sale And every purchase made by such persons shall be absolutely null and void and the persons offending against the provisions of this section shall be liable to a penalty of five pounds over and above the restitution of the animal or animals so purchased.

23. Proceeds of sale how to be applied.

The Poundkeeper shall receive the price of all impounded cattle sold as herein provided immediately after the sale thereof and shall apply the same first in the payment of all lawful fees and charges due to himself and secondly in payment of the damages “charges for driving cattle” and “charges for giving notice of the detention of cattle” (if any) claimed by the person impounding the cattle and he shall pay the residue to the owner of such cattle or to his agent upon the same being demanded and if no such demand shall be made within thirty days after such sale he shall pay over such residue to the Provincial Treasurer and. the receipt of the Provincial Treasurer shall be a legal discharge to the Poundkeeper for the amount named therein.

24. Penalty for rescue of cattle.

If any person shall rescue or attempt to rescue any cattle which cattle shall have been lawfully seized for the purpose of being impounded or shall break down injure or destroy any Pound legally erected whether any cattle shall be impounded therein or not or shall commit any Pound breach or rescue whereby any cattle of any description shall escape or be enlarged from any such Pound every such person shall upon conviction of such offence be liable to a penalty not less than five nor exceeding twenty pounds.

25. No penalty to exceed one hundred pounds.

No penalty to be imposed in any one conviction and the provisions of this Ordinance shall exceed the sum of one hundred pounds.

26. Pounds at present established to be deemed to be pounds under this

Ordinance.

Until further proceedings in that behalf in pursuance of this Ordinance as hereinbefore provided the public Pounds at present by law established shall be taken and deemed to be public Pounds and the Poundkeepers thereof to be Poundkeepers with the meaning and under the authority of this Ordinance.

27. Control and management of Pound may be handed over to Borough

Council and Road Boards.

It shall be lawful for the Superintendent by writing under his hand to notify to the Mayor of any City or Borough or to the chairman of any Road Board his intention to hand over the control and management of any Pound which shall be situated within the limits of any City Borough or Road District to the Council of such City or Borough or to such Road Board and from and after a day to be named in such notification the powers hereby given to the Superintendent shall be held and enjoyed by such City or Borough Council or Road Board respectively and the Poundkeeper shall account for all fees and charges received by him in such manner as may be directed by the Council of such City or Borough or any such Road Board.

28. Penalty for wilfully removing or driving cattle on to other person’s land, or on to public road, if from land not owned or occupied by person so doing.

If any person shall wilfully remove or drive any cattle from any land of which he shall not be the owner or occupier on to the lands of any other person or on to any public road he shall on conviction be liable to a penalty not exceeding five pounds for every such offence.

29. Superintendent to act with advice of Executive Council.

Every act which the Superintendent is hereby authorised or required to perform he shall perform solely in accordance with the advice and consent of his Executive Council and such advice shall be recorded on the minutes of the Council.

30. Offences how to be dealt with.

Every offence by this Ordinance made punishable by a pecuniary penalty shall and may be prosecuted in a summary way before any two Justices of the Peace in the manner provided by the Justices of the Peace Act 1866 so far as the same relates to summary conviction or by an Act repealing or amending the same or for like purposes.

31. Title.

This Ordinance shall be intituled and may be cited as “The Canterbury Trespass of Cattle Ordinance 1872.”

Schedule A.

Description of Sufficient Fences.

1. A post and rail fence at least four feet in height of substantial material firmly erected with no greater distance between the rails or between the rails and the ground than nine inches and the posts not more than eight feet six inches asunder.

2. A substantial upright paling at least three feet six inches in height with no greater distance between the palings than four inches.

3. A substantial wire fence at the least three feet six inches in height having not less than six wires tightly stretched with no greater distance between each of the three bottom wires or the bottom wire and the ground than six inches and the posts or standards or binding wires of which are not further than nine feet from each other.

4. A bank or wall of substantial materials at least five feet in height of which the slope is not more than one foot from the perpendicular.

5. A close and sufficient live fence at least four feet in height.

6. A combination of the above kind of fences at the least four feet in height.

7. A ditch not less than five feet broad with a bank or any fence or combination of the above sorts of fences on either side thereof the top of which shall be at least five feet six inches from the bottom of the ditch and three feet six inches above the level of the ground and where the slope of the bank on the ditch side thereof is not more than one in three and the slope of the ditch on the bank side not

more than one in two.

8. Any fence erected previous to the passing of this Ordinance which shall be of the description contained in Schedule B to the Trespass of Cattle Ordinance Session XIV. No. 1 or in Schedule A. to the Trespass of Cattle Ordinance 1869.

9. A ditch not less than four feet in width and two in depth with a bank and wires not less than three feet six inches in height the wires to be tightly strained with not more than eight inches between the wires and six inches between the bottom wire and the bank and the standards or binding wires to be not more than nine feet apart.

10. A natural stream ditch or watercourse not less than seven feet broad at the top and four feet broad at the bottom not less than three feet six inches deep with a stream of water running in it and with a bank with a slope of not more than one in three or any fence or combination of the above sorts of fences on either side thereof being not more than nine inches from the edge of the ditch, the top of which shall not be less than two feet above the level of the ground.

Schedule B.

Scale of Ordinary Damages.

Within the district hereinafter defined as the Agricultural District

For every head of horses asses mules horned or neat cattle the sum of One

Shilling and for every head of sheep or goats the sum of Threepence.

Within the portion of the Province not included in the Agricultural District or in the

Towns as hereinafter specified

For every head of horses asses mules horned or neat cattle the sum of Threepence and for every sheep or goat One Penny.

Provided that in no case shall the sum to be charged for ordinary damages for trespass by cattle upon any one occasion exceed the sum of Two Pounds.

The Agricultural District shall comprise all that portion of the Province contained within the Avon the Heathcote the Kaiapoi and the Port Victoria Electoral Districts as set forth and described in the Provincial Council Extension Ordinance Sess. VIII. No. 8 and any other portions of the Province which shall have been or shall from time to time by Proclamation of the Superintendent in pursuance of a recommendation to that effect from the Provincial Council be declared to be included in such agricultural district.

Schedule C.

Charges for Driving Cattle.

For any number of cattle of any sort whatsoever not exceeding twenty-five in number One Shilling for every mile or fractional part of a mile from the residence of the person driving such cattle to the residence of the owner of the same or to the Pound.

For any number exceeding twenty-five Two Shillings per mile. For giving notice of the detention of cattle

For every mile or part of a mile exceeding one furlong from the residence of the person giving such notice to the residence of the owner of the cattle One Shilling Provided that in no case shall the charge for so driving or for giving notice

exceed the sum of Two Pounds.

_{Schedule D.}

Pound Fees. _{S. D.}

For each entire horse above the age of twelve months 02 06

For each mare gelding colt filly foal mule ass goat or pig 01 00

For each bull above the age of twelve months 02 06

For each ox cow steer heifer or calf (first ten) 00 06

For each ox cow steer heifer or calf (above ten) 00 04

For each ox cow steer heifer or calf (above thirty) 00 03

For each ox cow steer heifer or calf (above fifty) 00 02

For each ram above the age of nine months 00 06

For ewe wether or lamb (first twenty) 00 02

For every ewe wether or lamb (above twenty) 00 01

For every ewe wether or lamb (above one hundred) 00 0½

The above fees to be paid for each day or part of a day during which the animal is kept in the Pound

Charges for Food.

For every horse mare gelding mule ass colt filly

foal or bull cow steer heifer or calf 01 00

For every sheep or lamb 00 01

For every boar sow or pig 00 06

The above charges to be paid for each day or part of a day during which the animal is supplied with food and water by the Poundkeeper.

Schedule E.

Form of Poundkeeper’s Book.

Columns: Date. Time.

Particulars of cattle impounded. Brand Marks.

Owner.

By whom impounded.

For what cause impounded.

Place where cattle were found trespassing. Time and mode of giving notice.

How disposed of.

Time when released or sold. Particulars of release or sale.

Schedule F.

Poundkeeper’s Fees for giving Notice of Cattle Impounded.

_{For giving notice to any owner agent or bailiff within twenty miles of the Pound}

_{For every mile or part of a mile exceeding one furlong} from the Pound to the residence of the owner of the cattle 01 00

For posting a notice where the owner may be not known or lives at a greater distance than twenty miles from the Pound and has no agent or bailiff within that distance 01 00