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 relating to such partition fences shall be registered in the town clerk's office in the town where such lands shall lie. SEC. 10. Where the whole or more than one half of any partition fence has 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 when he improves the same, shall pay to the proprietor or possessor who made such fence, 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. SEC. 11. The 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 costs shall be recovered by the party aggrieved, against such person, by action of debt. SEC. 12. If any fence viewer to whom complaint shall be made against any person for a breach of this chapter, shall neglect or refuse to do the duty by this chapter enjoined on him to do, such fence viewer so refusing shall forfeit five dollars for every such neglect; to be recovered by any person who shall sue for the same, in the town where such fence viewer shall live. SEC. 13. 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. 14. 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 the respective shares or lots, shall be exempted from the operation of this chapter. SEC. 15. 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 ninety-fourth chapter. CHAPTER 92. OF POUNDS. SECTION SECTION 1. Pounds to be maintained by each town. 2. Penalty for neglect. SECTION 1. 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. SEC. 2. Any town neglecting to erect or maintain a suitable public pound, for the purposes aforesaid, shall forfeit thirty dollars. SECTION 1. If any horse, neat-cattle, sheep or hog, shall be going at large in any highway or common, it shall be lawful for any freeholder or qualified elector, or field driver, of the town within which such animal is at large, to take up such animal and impound the same in one of the public pounds of said town. SEC. 2. It shall be the duty of the keeper of any pound in which any animal shall be impounded, for the cause set forth in the next preceding section, to receive, and keep and feed such animal in such pound; and he shall and may duly milk any cow so impounded for his own use. SEC. 3. The owner of any animal so impounded shall not have the same out of said pound, until he shall first pay to the pound keeper the expenses of keeping such animal, (no regard being had to the milk derived from the same,) and the pound keeper's fees for receiving the same into the pound, viz.: for each horse and neat beast, four cents; for each sheep and hog, two cents; for every notification set up or notice given to the owner, twenty-five cents; and the following penalties, to wit: for every horse, neat beast and hog, fifty cents, and for every sheep, ten cents. SEC. 4. The pound keeper shall pay one half part of every sum received by him as a penalty in pursuance of the next preceding section, to the town treasurer of the town in which the pound is situated, and the other half to the person who impounded the animal. SEC. 5. When any animal shall have continued in any pound for forty-eight hours, the pound keeper shall, within forty-eight hours thereafter, set up notifications in at least three public places in the same town with said pound, one of which shall be at or near the office of the town clerk of such town, describing the natural and artificial marks, if any, on such animal, or shall give notice in writing to the owner of such animal. SEC. 6. If no owner shall appear within twenty days from the date of such notifications or notice, and pay the penalty and charges aforesaid, the said pound keeper shall deliver the said animal to the treasurer of such town, with a statement in writing of the time and manner in which the said animal was impounded, and of the proceedings of such pound keeper in relation to the same; together with an account of the charges and expenses due from the owner of such animal to said pound keeper by virtue of this chapter. SEC. 7. If said treasurer shall find the proceedings of said pound keeper correct, he shall sell said animal at public auction, after giving reasonable notice of such sale; and shall, out of the proceeds of the sale, pay the incidental expenses thereof, the cost of keeping such animal, after the same was delivered to him by the pound keeper for sale, the expenses and charges aforesaid, the expenses and the penalty aforesaid, and in the order above, if the proceeds of the sale be not sufficient to pay the whole thereof. SEC. 8. If any town, district or village, shall vote to extend the provisions of this chapter to goats and to geese going at large within its limits, thereafter such goats and geese shall subject their owner to the same obligations and duties, and shall themselves be disposed of in the same way, as is, in this chapter provided, in relation to the animals therein named. SEC. 9. The pound keeper's fees for receiving goats shall be four cents each, and for receiving geese, two cents each; and the penalty shall be twenty cents for each goat, and five cents for each goose. SECTION CHAPTER 94. OF THE DISTRAINT OF ANIMALS DAMAGE FEASANT. 1. Cattle breaking through a lawful fence may be impounded, or damages may be recovered by action. 2. Damages, when animal is impounded, to be appraised, when and by whom. 3. Notice, when, to whom and how given. 4. Pound keeper, after notice, may sell such animal to satisfy damages and charges. 5. Proceeds of sale to be paid into town treasury. 6. Pound keeper shall feed such animals. 7. Fees of pound keeper. 8. Person impounding may have his action for damages. 9. Owner may replevy. 10. Writ to be served, and cause heard like SECTION 1. If any neat-cattle, horses, sheep or hogs shall break through a lawful fence into the inclosure 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 by impounding, shall, within two days after such beasts break into his inclosure, 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 by public auction in the town where they are impounded, first advertising the sale by giving personal notice to the owner of the beasts, if he is known, and if he is not known, by posting notices of such sale at least three days before the sale, in three public places in the town in which the 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 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 eight 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 chapter. 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 |