er of the said proprietors; and such repairs may be examined by any two or more fence viewers, and if adjudged by them to be sufficient, they shall ascertain and determine the cost of the repairs, and make a statement thereof, and of the amount of their fees, in writing, under their hands. Ib. § 31.

37. The person making such repairs may demand, of the proprietor who was bound to make the same, or of the tenant holding under him, double the cost of the repairs and of the fees of the fence viewers, ascertained as aforesaid; and if the same is not paid within one month after notice and demand thereof, he may recover the same in an action on the case. Ib. § 32.

38. If any part of the fence shall be suddenly blown down, or carried away by any flood or tempest, at a time when the crops of grain or grass in the field shall be thereby exposed to immediate destruction or injury, the proprietor, to whom that part of the fence was assigned, shall be bound to repair the same, within twenty four hours after notice thereof given to him by a fence viewer; and if he shall fail so to do, the fence may be repaired by any other proprietor, and such proprietor may recover double the cost of the repairs and fees, in the same manner as is provided in the preceding section. Ib. § 33.

FIELD DRIVERS, AND IMPOUNDING AND DISTRAINING CATTLE.

1. FIELD drivers are to be chosen at the annual meeting in such mode as the meeting shall determine, and are to be sworn to the faithful discharge of the duties of their office. R. S. c. 15, § 33 & 34.

2. Every field driver, within his town, shall take up, at any time, any swine, sheep, horses, asses, mules, goats or neat cattle, going at large in the public highways, or town ways, on common and unimproved lands, and not under the care of a keeper, and shall forthwith impound them in the town pound, and, for any such cattle or beasts, so going at large on the Lord's day, the field driver or any other inhabitant of the town may recover, by an action of debt, for each beast, the same amount of fees, which the field driver is entitled to receive for the like beasts, when distrained and impounded. Ib. c. 19, § 22.

3. The pound keeper shall not deliver to the owner any beasts so impounded, until the owner shall pay him his fees and the expense of keeping the beasts, and also the fees due to the field driver, which latter, when received, he shall pay to the field driver. Ib. c. 113, § 3.

4. The pound keeper shall furnish any beasts, impound

ed by any field driver, with suitable food and water, so long as they are detained in his custody. lb. § 1.

5. The pound keeper shall be entitled to four cents per head for all animals impounded, but if more than ten sheep are taken up at the same time, the fees for all above that number shall be two cents per head. 1b. $2.

6. A field driver is authorized to impound cattle so going at large on Sunday, the action of debt to which the owner is subjected being only a cumulative remedy. 23 Pick. 251.

7. In the same case, Wild v. Skinner, the court decided that the field driver was not bound under the eighteenth section of this title to leave with the pound-keeper a memorandum, stating the cause of impounding and the damages or fees demanded, this being requisite only where cattle are taken doing damage. 23 Pick. 254.

This decision however seems to be in direct conflict * with the case of Bruce v. Holden, in which the court say that it is "the duty of a field driver" who had impounded cattle going at large on the highway, to file with the poundkeeper a memorandum or certificate of the cause of impounding, and of his fees and expenses, and that such certificate was official and prima facie evidence of the truth of the facts stated in it. 21 Pick. 187, 192.

8. A turnpike road is a highway within the meaning of the law restraining cattle. 4 Pick. 258.

9. The field driver shall be entitled to fifty cents per head for all horses, asses, mules and neat cattle, and ten cents per head for all sheep, goats and swine, so distrained by him; but if more than ten sheep are taken up at the

*The cases cannot be reconciled by a distinction between fees and damages, for in both cases the question arose as to memorandum of fees. Indeed the field driver impounding cattle going at large on the highway has no claim for damages. Though the decision of Wild v. Skinner, is the later one, the safer course for the field driver will be to leave the memorandum of the cause of impounding and of his fees with the poundkeeper.

same time, the fees for all above that number shall be only five cents per head. R. S. c. 113, § 2.

10. Each town shall, at its own expense, and in such places therein as the inhabitants shall direct, maintain one or more sufficient pounds, in which swine, sheep, horses, asses, mules, goats and neat cattle may be restrained and kept. lb. c. 19, § 19.

11. Every town that shall, for the space of three months, neglect to maintain a sufficient pound, shall forfeit the sum of fifty dollars, to the use of the county in which such town is situated. Ib. § 20.

12. Each town shall annually appoint a suitable person, to be the keeper of each pound therein, and in such mode as the town meeting shall determine. 1b. § 21.

13. When any person is injured in his land, by sheep, swine, horses, asses, mules, goats or neat cattle, he may recover his damages in an action of trespass against the owner of the beasts, or by distraining the beasts doing the damage, and proceeding therewith as herein after directed. 1b. 4. 18 Pick. 422.

14. If the beasts shall have been lawfully on the adjoining lands, and shall have escaped therefrom in consequence of the neglect of the person who has suffered the damage, to maintain his part of the division fence, the owner of the beasts shall not be liable for such damage. Ib.

15. The owner of a close is not obliged to fence but against the escape of cattle lawfully in the adjoining ground; and if all his fence be insufficient, yet if the cattle do not escape into his close through the insufficient fence, but are turned in or escape through a deficient fence of an intermediate close not belonging to him, he may lawfully distrain the cattle doing damage. 6 Mass. 90.

16. The public have no rights in a highway but a right to pass and repass thereon. They cannot therefore turn their cattle thereon, for the purpose of grazing. And if

cattle on the highway for the purpose of grazing escape into the adjoining land, the owner of the land may maintain trespass, or distrain, although the land was unfenced. 16 Mass. 33.

The owner of the land, however, takes the hazard of cattle lawfully passing the road, running upon his land, and casually and “snatchingly," against the will of the driver, devouring his crops. 16 Mass. 33. 18 Pick. 422.

17. The beasts so distrained for doing damage shall be impounded either in the town pound, or in some suitable place, under the immediate care and inspection of the person who distrained them, and he shall furnish them with suitable food and water, so long as they remain impounded. R. S. c. 113, § 5.

18. If the beasts are impounded, in the town pound, the distrainer shall leave with the pound keeper a memoradum in writing, under his hand, stating the cause of impounding, and the sum that he demands from the owner, for the damage done by the beasts, and also for the daily charges of feeding them; and if they are impounded in any other place, he shall give a like memorandum to the owner of the beasts, if demanded by him. Ib. § 6.

19. The pound keeper, when the beasts are in his custody, shall not deliver them to the owner, until the owner shall pay him his fees, together with the sum so demanded by the distrainer, for the damages and charges aforesaid, and the expense of advertising the beasts if they are advertised, and all other legal costs and expenses. Ib. $ 7.

20. When beasts are impounded, the person impounding, shall within twenty-four hours thereafter give notice. in writing, to the owner or the person having the care of them, if known, and living within six miles from the place of impounding, which notice shall be delivered to the party, or left at his place of abode, and shall contain a de