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pleted to the satisfaction of such fence viewer, he shall ascertain the costs thereof and give a certificate of the same, including also his fees, to the complainant, who may demand of the party delinquent double the sum in said certificate mentioned. If the same be not paid within one month after demand thereof, the complainant may recover the same in an action on the case for money laid out and expended, with interest at the rate of twelve per cent. per annum.
Sec. 5. Whenever any two persons land shall lie together adjoining the water, and each under improvement, the proprietors or possessors thereof shall make and maintain a sufficient water fence to prevent trespass of each others' cattle, in the same manner as other partition fences are directed to be made by this act.
Sec. 6. When any controversy shall arise about the rights of the respective occupants in partition fences and their obligation to maintain the same, either party may apply to a fence viewer of the town where the lands lie; why, after due notice to each party, may, in writing, assign to each his share thereof, and direct the time within which each party shall erect or repair his share of the same ; which assignment being recorded in the town clerk's office shall be binding upon the parties and all succeeding owners and occupants of the lands, and they shall be obliged always thereafter to maintain their respective shares of said fence.
Sec. 7. In all cases where partition fences are erected as one half part of the partition fence between proprietors or possessors of adjoining lands, or where the same may be hereafter erected by the agreement of the parties in interest or other lawful manner, the proprietors of the fences in either of the said cases erected, their heirs or assigns, shall hold and improve the same without molestation ; and shall be forever afterwards excused from making other fence on such dividing line in all cases whatever, except by the special agreement of such parties to the contrary; all agreements which shall be made hereafter relating to such partition fences shall be registered in the town clerk's office in the town where such lands shall lie.
Sec. 8. Where the whole or more than one half of any partition fence hath been or shall be made by the proprietor or possessor of the land on one side of the same, the proprietor or possessor of the land adjoining, shall pay to the proprietor or possessor who made such fence where he improves the land adjoining, the value of so much of the fence erected as aforesaid as the same may exceed one half of the fence on
the whole line ; and in case of his refusal so to do, the value shall be ascertained by any one fence viewer of the town where such land is situated, on application to him for that purpose ; which fence viewer on such application, shall forthwith cite the parties in interest on such dividing line, at a convenient time, to view the fence; shall ascertain the value of the whole, and award the one half of such sum against the proprietor or possessor so refusing, with cost, and divide the whole fence between such parties and make report into the town clerk's office, which division shall be permanent; and if any person against whom report shall be made as aforesaid shall refuse to pay the sum so reported, said sum with cost shall be recovered by the party aggrieved, against such person, by action of debt before any court proper to try the same.
Sec. 9. If any fence viewer to whom complaint shall be made against any person for a breach of this act shall neglect or refuse to do the duty by this act enjoined on him to do, such fence viewer so refusing shall forfeit and pay five dollars for every such neglect ; to be recovered by any person who shall sue for the same, before any justice of the peace in the town where such fence viewer shall live.
Sec. 10. Every fence viewer shall be allowed one dollar and a half per day, and in proportion for half a day, or for any less time, for viewing any fence, on complaint made to him for that purpose ; which fees shall be paid in the first instance, by the person complaining to him ; and in case there shall appear to be good cause of complaint, may be by him recovered back of the party complained against.
Sec. 11. All tracts of marsh land so situated and exposed to the flow and wash of the sea as to render it impracticable for the several owners thereof to keep up partition fences around their respective shares or lots, shall be exempted from the operation of this act.
SEC. 12. If any person shall permit any cattle, sheep, horses or hogs to him belonging to run upon any such tract of marsh land, the owner of such marsh land shall, for
every such trespass, have all the remedies provided in other cases by the act entitled “an act for impounding certain animals in certain cases, and for recovering damages that shall be done by them.”
An Act establishing Pounds.
Each town to maintain a pound-penalty for neglect. It is enacted by the General Assembly, as follows :
Each town shall erect and maintain at its own charge, one or more public pounds, for the impounding of horses, mules, neat cattle, sheep, goats, hogs and asses, and for the securing of such animals agreeably to law, in some convenient place or places in such town, on the penalty of forfeiting the sum of thirty dollars for such neglect, to and for the use of the state.
An Act for Impounding certain Animals in certain cases, and
for recovering damages that shall be done by them. SECTION
SECTION 1. Cattle breaking through lawful fence 10. Method of replevying.
may be impounded-or owner may be 11. Same subject. sued for the damage done.
12. Judgment in replevin-how entered, 2. Damages to be appraised.
&c. 3. Pound keeper shall give notice to own- 13. When beasts are returned, irrepleviaer-post up notice in case.
ble. 4. Cattle may be sold at auction unless 14. Plaintiff to have judgment in case, &c. damages are paid, &c.
15. Appeal given. 5. Proceeds to be paid into the town trea- 16. Cause may be removed to court of sury.
common pleas, &c. 6. Pound keeper to feed the beasts. 17. Before person aggrieved proceeds by 7. Keeper's fees.
action, he shall have the damages apo 8. Person impounding may have his ac praised. tion for damagas.
18. Cattle breaking through unlawful di9. Owners may replevy.
vision fence, owner of fence liable. It is enacted by the General Assembly, as follows:
SECTION 1. If any neat cattle, horses, sheep or hogs shall break through a lawful fence into the enclosure of any person, the person aggrieved thereby may recover his damages either by action against the owner of the trespassing beasts, or by impounding such beasts.
SEC. 2. The party aggrieved, in order to be entitled to recover damages, either by action or impounding, shall within two days after such beasts break into his enclosure get two freeholders of the town wherein the trespass is committed, to appraise the damage, and give a statement thereof in writing, under their hands, and shall lodge the same with the pound keeper.
Sec. 3. When beasts are impounded the pound keeper shall within forty-eight hours thereafter give notice thereof in writing to the owner, if the owner shall be known to him and
resides within six miles from the pound; which notice shall be delivered to the owner or left at his place of abode, and shall contain a description of the beasts and a statement of the time and cause of impounding; and in case the owner shall not be so known or resides more than six miles from the pound, the person impounding shall post up such notice in three public places in the town in which the beasts are impounded.
Sec. 4. If the owner of such beasts impounded as aforesaid shall not within ten days after the impounding thereof pay and satisfy the damages appraised as aforesaid, and the charges of impounding and feeding said beasts, or shall not replevy the same, the pound keeper shall cause them to be sold at vendue in the town where they are impounded ; first advertising the sale by giving personal notice to the owner of said beasts if he is known, and if he is not known, by posting notices of such sale, at least three days before said sale, in three public places in the town in which said beasts are impounded.
Sec. 5. The proceeds of sale, after paying all the said damages, costs and expenses, with the costs of advertising and selling the beasts, shall be paid into the town treasury for the use of the owner of said beasts, if he shall substantiate his claim thereto within two years from the sale.
Sec. 6. The pound keeper shall feed such beasts so impounded at the charge of the owner thereof; and he shall not deliver them to the owner until the owner pays him his fees, together with the sum demanded for damages, and all other legal costs and expenses.
Sec. 7. The pound keeper shall be allowed as his fee for impounding, for each neat beast or horse, four cents; for each hog or sheep, two cents; and for each notification set up or notice given to the owner, twenty-five cents; and four cents per mile for travel in giving personal notice, to be computed from the pound to the place of service. Sec. 8.
If the owner of such beasts so impounded shall within two days after they are impounded demand of and receive from the pound keeper such beasts, and pay him his charges, and the person impounding has not lodged with the pound keeper a statement of damages, he may have his action at law for such damages, provided, he shall perform all the requisitions and proceedings mentioned in the second section of this act.
Sec. 9. Any person whose beasts are impounded, may if he see cause maintain a writ of replevin therefor, to be sued
out and prosecuted before any justice of the peace in the town where they were impounded.
Sec. 10. The writ shall be sued out, served and returned, and the cause shall be heard and determined, in like manner as other civil actions before a justice of the peace, in all particulars in which a different course is not prescribed.
Sec. 11. The writ shall not be served unless the plaintiff or some one in his behalf, shall execute and deliver to the officer a bond to the defendant, with sufficient sureties, to be approved by the officer, in a penalty double the value of the beasts to be replevied, with condition to prosecute the replevin to final judgment, and to pay such damages and costs as the defendant shall recover against him, and also to return the said beasts in case such shall be the final judgment; which bond the officer shall return with the writ to be left with the justice for the use of the defendant.
Sec. 12. If it shall appear that the beasts were lawfully impounded, the defendant shall have judgment for such sum as shall be found due from the plaintiff for the damages for which the beasts were impounded, together with all the legal fees, costs, charges and expenses, and the.costs of the action of replevin ; or instead of such judgment the justice may in his discretion enter judgment for a return of the beasts to the defendant, to be held by him irrepleviable by the plaintiff, and for the defendant's damages for the taking thereof by the replevin and for his costs of suit. In case the plaintiff in replevin shall not enter his suit in replevin, the defendant may file his complaint before the justice and have judgment against the plaintiff as afore provided.
SEC. 13. When the beasts are returned to the defendant pursuant to such judgment, they shall be held and disposed of in like manner as if they had not been replevied.
Sec. 14. If it shall appear upon the default of the defendant or otherwise, that the beasts were taken without sufficient or justifiable cause, the plaintiff shall have judgment for his damages caused by the unjust taking and detaining of the beasts, and for his costs of suit.
Sec. 15. Either party may appeal from the final judgment of the justice, as in other civil actions tried before a justice of the peace.
Sec. 16. When the sum demanded for damages exceeds twenty dollars, or when the property in the beasts is in question, and their value exceeds that sum, or when title to real estate is brought in question, the case shall, at the request of either party, be transferred to the court of common pleas in