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Trespass of Cattle Ordinance1860

1. The Trespass of Cattle Ordinance 1860

Whereas an Ordinance was enacted by the Lieutenant-Governor and Legislative Council of New Zealand, Session VII., No. 17, entituled "An Ordinance to Repeal the Cattle Trespass Ordinance, and the Cattle trespass Amendment Ordinance, and to Provide for the Summary Recovery of Compensation for Damage done by Cattle Trespassing:” And Whereas an Ordinance was enaced by the Lieutenant- Governor and Legislative Council of New Zealand, Session VIII., No. 6, entituled “An Ordinance to Authorize and Regulate the Impounding of Cattle:” And Whereas an Ordinance was enacted by the Lieutenant-Governor and Legislative Council of the Province of New Munster, Session I., No. 3, entituled “An Ordinance to Prevent Entire Horses, and certain other Animals from being suffered to Stray or Run at Large:” And Whereas an Ordinance was passed by the Superintendent and Provincial Council of the Province of Canterbury, entituled “The Trespass of Cattle Ordinance, Session II., No. 7;” and Whereas such Ordinance was amended by an Ordnance passed by the Superintendent and Provincial Council of the Province of Canterbury, entituled “The Trespass of Cattle Amendment Ordinance, Session X., No. 4:” And Whereas such amended Ordinance was further amened by an Ordinance passed by the Superintenent

and Provincial Council of the Province of Canterbury, entituled “The Trespass of Cattle Amendment Ordinance, Session XI., No. 10:” And Whereas it is expedient that the above recited Ordinances should, so far as they relate to the Province of Canterbury, be repealed, and that the several provisions therein contained

should be amended, and should be consolidated into One Ordinance:

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1 Former Laws repealed.

All the above recited Ordinances (except in so far as any provision therein contained shall repeal any former Laws and Ordinances) and all Proclamations and Notices issued in pursuance of the authority thereof, shall be, and the same are hereby repealed within the Province of Canterbury.

2. Interpretation of terms.

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 lawfui 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 or 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 Cour 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

3. Damages recoverable only under this Ordinance, and within thirty days of trespass.

From and after the passing of this Ordinance no cattle shall be impounded, and no proceedings shall be taken in any matter relating to the trespass of cattle, or the recovery of damages arising therefrom, in any Court of Summary Jurisdiction within the Province, except only under the authority and in accordance with the provisions of this Ordinance: Provided that nothing herein contained shall be taken to prevent the impounding of cattle under the provisions of an Orddinance enacted by the Governor-in-Chief and Legislative Council of New Zealand, Session X., No. 1, entitled “An Ordinance to Regulate the Occupation of Waste Lands of the Crown in the Province of New Ulster,” and of a like Ordinance, Session XI., No. 10, entituled “An Ordinance to Amend the Crown Lands Ordinance, No. 1, Session X., and to extend the operation thereof to the Islands of New Zealand:” Provided also, that no damages shall be recovered in any action for trespass by cattle, unless the information shall have been laid within thirty dys after such trespass.

4. Cattle trespassing in towns.

If any cattle shall be found wandering at large within the limits of any town, the Owner thereof shall be liable to a fine of not more than Five Shillings; and it shall be lawful for any one thereupon to impound such cattle; and if such cattle shall do any damage to any property within the limits of such town, the person suffering such damage may recover from the Owner of such cattle in the manner hereinafter provided, either “ordinary damages,” or “special damages,” as he shall think fit to sue for.

5. Cattle trespassing may be detained or driven to residence of owner.

If any cattle shall be found trespassing upon land enclosed within a sufficient fence without the limits of a town, the Occupier of such land may thereupon impound the same, and may recover from the Owner of such cattle, in the manner hereinafter provided, either “ordinary damages,” or “special damages,” as he shall think fit to sue for.

6. Cattle trespassing on unenclosed lands without towns.

If any cattle shall be found trespassing between the hours of sunset and sunrise upon land not enclosed within a sufficient fence without the limits of a town, the Occupier of such land may recover ordinary damages from the Owner of such cattle, accordding to the scale set forth in Schedule C to this Ordinance; asnd if such trespass shall occur between the hours of sunrise and sunset, then such Occupier shall be entitled to recover damages to the extent of one-third of the said respective sums before mentioned; but if such Occupier as aforesaid shall not have enclosed such land by a sufficient fence within six months of the date at which he shall first have cultivated the same, he shall not be entitled to recover

for any such trespass a greater sum than that recoverable for trespass between the hours of sunrise and sunset: Provided always, that the amount of such damages recoverable under this Section shall in no case exceed the sum of Five Pounds.

7. Cattle trespassing may be detained or driven to residence of owner.

If any cattle shall be found trespassing without the limits of a town 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 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 if the cattle so detained shall not be removed within twelve hours after the service of such notice it shall be lawful for the person detaining the same to drive them to the residence of the owner or to the nearest Public Pound as he shall think fit but if the owner of such cattle shall be unknown to such occupier it shall be lawful for him to detain such cattle on his own land as aforesaid and if such cattle shall not be removed within twelve hours it shall be lawful for such occupier to drive the same to the nearest Public Pound and such occupier shall be entitled to recover from the owner of such cattle ordiary

damages and charges for driving the same and for giving notice of the detention of the same according to the scale respectively set forth in Schedule C this Ordinance Provided also that such occupier if claiming ordinary damages may demand the payment of such ordinary damages before restitution of such cattle within the period of twelve hours aforesaid 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

8. Entire animals wandering at large.

If any bull 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 of not less than Two Pounds and not more than Five Pounds.

9. Ordinary damages to be recovered in a summary way.

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.

10. Special damages to be recovered in a summary way.

If any person shall be entitled to claim special damages on account of any trespass done by cattle, he may recover the same before any two Justices of the Peace in a summary way.

11. Superintendent to cause Public Pounds to be erected.

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 amd 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.

12. Superintendent to appoint Poundkeepers.

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.

13. 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 bring substantial householders of the Province.

14. Poundkeepers to keep Pound in repair, &c.

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.

15. Poundkeeper to receive fees and charges for food.

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.

16. Poundkeepers to keep board of Pound-fees and charges displayed. The Poundkeeper shall erect and maintain in some conspicuous part of the Pound under his charge a white board having painted thereon 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 permit any false statement to appear thereon he shall be liable to a fine of Five Shillings for every day during which any false statement shall appear thereon.

17. Penalties for over-charging, &c., by Poundkeeper.

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 fail 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.

18. Poundkeeper to keep Pound-book.

The Poundkeeper shall keep at or near the Pound a copy of this Ordinance and also a Pound-book in the form set forth in Schedule E 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 Pound keeper 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 oerson 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 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 Sixpence.

19. Penalties for not producing Pound-book, &c.

If the Poundkeeper shall neglect or refuse to produce a copy of this Ordinance or the Pound-book or of 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 Twenty Shillings 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.

20. Cattle impounded in charge of Poundkeeper.

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 servants 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 or receive and except upon the written authority of the person impounding the same together with 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.

21. Poundkeeper to receive damages andd charges for driving, &c.

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.

22. Poundkeeper to give notice to Owner of cattle.

If any impounded cattle shall not be claimed within twenty-four hours after such impounding the Poundkeeper shall immediately 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 five 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 Pounds and at some other place of public resort in the neighbourhood and shall advertise the same in the publicnewspapers of the nearest town and shall cause such advertisement to appear in every issue of such newspapers until the day of sale of such cattle

provided that if such cattle shall consist of sheep goats or swine and be not 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.

23. Cattle not released to be sold by auction.

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 twenty-one clear days after such notice shall have been posted as aforesaid the Poundkeeper

may apply to any Justice of the Peace for an order for the sale of such cattle And if such Justice of the Peace shall be satisfied by inspection of the Pound-book and by the evidence upon oath of the Poundkeeper and by such other evidence as he may require that the provisions of this Ordinance have been complied with such Justice may give an order in writing for the sale of such cattle and if such Justice shall find that the terms of this Ordinance have not been complied with and if delay in the sale of the cattle shall have been occasioned by any neglect of

the Poundkeeper the Poundkeeper shall bear all the costs arising from such delay.

24. Time, &c., of sale of cattle.

All sales of impounded cattle shall take place at the Pound and shall commence at the hour of noon and each animal shall be put up in separate lot and shall be sold to the highest bidder (provided that any ducklings may be 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 an Auctioneer at such sale Provided that it shall not be lawful for the Poundkeeper or the person impounding such cattle or the Justice making the order for the sale thereof 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 clause shall be liable to a penalty of Five pounds over and

above the restitution of the animal or animals so purchased.

25. Justices may order sale of cattle sooner.

Provided that it shall appear to any two Justices of the Peace upon the evidence of the Poundkeeper and upon such other evidence as such Justices may require that the proceeds of the sale of any cattle impounded may not be sufficient to satisfy the lawful fees and charges due to the Poundkeeper if such cattle shall be maintained in the Pound until the day of sale as hereinbefore provided it shall be lawful for such Justices to order such sale to take place upon any day they shall think fit earlier than the day of sale hereinbefore directed.

26. Poundkeeper to receive price of cattle sold.

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 fordriving 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 demand 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 and if such sum of money shall not be claimed within two years from the date of the receipt thereof by the Provincial Treasurer it shall be lawful for the Superintendent by warrant under his hand to direct the same to be applied to the Public uses of the Province and to the suport of the Government thereof.

27. Remedy against illegal impounding.

If any cattle shall have been illegally impounded the owner thereof shall be entitled to recover from the person impounding the same full compensation for all the loss and damage which he may have suffered thereby.

28. Penalties for rescue or commission of Pound breach.

If any person shall rescue or attempt to rescue any cattle which 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 to be liable to a penalty not exceeding Twenty Pounds.

29. Maximum Penalties.

No penalty to be imposed in any one conviction under the provisions of this

Ordinance shall exceed the sum of One Hundred Pounds.

30. Recoverable summarily.

All fines and penalties imposed under the authority of this Ordinance may be recoverable on conviction of the parties charged before any two Justices of the Peace.

31. Present Pounds and Poundkeepers continued.

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 within the meaning and under the authority of this Ordinance.

32. Title.

This Ordinance shall be entituled and may be cited as the "Trespass of Cattle

Ordinance, Session XIV., No. 1."

Schedule A.

List of Towns to which this Ordinance refers.

The town of Christchurch, as set forth in the Map of the Chief Surveyor of the

Province of Canterbury, including the town reserves.

The town of Lyttelton, as set forth in the Map of the Chief Surveyor of the said

Province.

The town of Akaroa, set forth in the Proclamation of the Superintendent of the said Province, bearing date 1st May, 1856.

The town of Kaiapoi, as set forth in the Schedule to "The Kaiapoi Town

Ordinance, Session VII, No. 7."

Schedule B.

1. A post and rail fence, at least three feet six inches in height, of substantial materials, firmly erected, of not less than two rails, with no greater distance between the rails at any one point than one foot 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.

3. A substantial wire fence, at least four feet in height, having not less than four wires tightly stretched, and kept of a white colour, and the posts of which are not further than twelve from each other.

4. A substantial iron hurdle, at least four feet in height, and kept of a white colour.

5. A bank or wall of substantial materials, at least four feet in height, of which the slope is not more than one foot from the perpendicular on the outer side thereof.

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

7. Any combination of fences of the above kind, at least four feet in height.

8. A ditch five feet broad, with a bank or any fence or combination of fences of the above sorts on the further side thereof, the top of which shall be at least five feet six inches from the bottom of the ditch, and two 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 not more than one in two.

Notes.

The sections concerning Arbitrators have been removed from the Cattle

Trespass Ordinance which was disallowed. [Session XII.] This involved Sections

9, in respect of damages set by arbitration, and sections 11 to 18.