CHAP. 24. Fences, how constructed. Height of fen ces. Damages by cattle, from CHAPTER 24. OF FENCES, FENCE VIEWERS, AND IMPOUNDING OF CATTLE. 1. All fences of enclosed lands shall be built of stones, pickets, boards, logs, poles, brush, or posts and rails, unless the lands are bounded by ponds, unfordable rivers, or the sea, or surrounded by sufficient hedges. 2. Such fences shall be at least four feet and a half high, except stone walls and picket and board fences, which shall be at least four feet high. 3. If any damage be done by horses, sheep, goats, whom recovered. Swine, or cattle, breaking into and destroying the product of such enclosures, the same being enclosed at the time with a sufficient fence in the judgment of the fence viewer, the owner of the animals trespassing shall pay to the party injured the value of such damages. Of the appraise ment. Damages recoverable after notice. Partition fences, how erected; adjusted. 4. The damages shall be ascertained by an appraisement of three persons living in the neighbourhood, being first sworn before a justice truly to value the same, who shall be entitled to a fee of twenty-five cents each. 5. If the owner refuse to pay the amount appraised and such fees, upon notice thereof, the party injured may maintain an action therefor as for any other debt. 6. The proprietor of a field adjoining another enclosed differences, how and improved, shall build and maintain his proportion of fencing on that part of such land which adjoins his own; and in case of neglect so to do, after three days' notice to that effect, any fence viewer may forthwith cause such deficient fence to be made or repaired, as the case may be; and the person so neglecting shall pay double the expenses of making or repairing such fence, to be recovered by the fence viewer, with costs, as any other debt. If adjoining proprietors differ as to the part or proportion of a new division fence to be made by each, the nearest fence viewer shall decide the same. Fence viewers' neglect of duty. Obligations of adjoining improved land. 7. No fence viewer shall be allowed more than sixty charges; fine for cents per day for his own trouble and time; and for each neglect of duty, when notified, he shall forfeit eight dollars. 8. Where the owner of land, improved or cultivated, owners of land shall have made, or hereafter shall make, his proportion or one-half part of the fence separating his land from the improved or cultivated land of the adjoining proprietor, of permanent or durable materials or growth, to be determined as hereinafter provided, he shall not, nor shall any person claiming under him, be required to erect or repair the fence in any other place as between his land and that of such adjoining proprietor, or any person claiming under TITLE IV.] IMPOUNDING CATTLE-FENCES. 137 him, in case of sale or change of occupancy of any part of CHAP. 24. the land of the latter, so long as such portion of fence of the kind above mentioned shall be maintained by the person first above referred to or some person claiming under him. fences-how de 9. Any two justices of the peace of the county in Sufficiency of which the lands referred to lie (due notice in writing for termined. at least three days being first given to the proprietor of the adjoining land) may repair to the land and examine the fence, and pronounce the same by any instrument in writing under their hands to be made of permanent or durable materials or growth within the meaning of this Chapter, and such instrument in writing shall thereupon be deposited with the Clerk of the Peace of the county, in memorial and as evidence of the matters therein stated. 10. Any person feeling aggrieved by the decision of Appeal. the justices may appeal to the next General Court of Sessions for the county, whose decision, affirming or reversing the decision of such justices, shall be final. not affected by 11. Nothing in the three preceding sections contained Titles to lands shall be construed to affect the title to the lands on which this Chapter. the fences are erected. land, owner not 12. No owner or proprietor of wood, or barren or Unimproved burnt lands, not under improvements, shall be compelled liable to fence. to make any part of a fence against or on the same. sures liable to be 13. If any damage shall be done by horses, sheep, Cattle, &c., tresgoats, swine, or cattle breaking into and destroying the passing on encloproduct of any enclosures, the persons whose fences have impounded. been broken and enclosures damaged, may impound the cattle so trespassing till the owner shall claim the same, and tender sufficient amends. case. 14. The pound-keeper shall thereupon, as soon as may Pound-keeper's be, advertise the same in three of the most public places duty in such in the settlement where the trespass has been committed, in order that the person injured may proceed against the owner of such animals refusing to pay the damages done thereby. mode of recov 15. The owner of such animals shall pay to the pound- His fees and the keeper, above the damages adjudged under section four, ery. twenty cents for every horse or head of cattle, and ten cents for every sheep, goat, or swine, for each day the same shall have been impounded, for their support; and in case of refusal to pay the same within eight days after being impounded, with the charge of advertising, the animals shall be publicly sold; and the proceeds, after deducting the pound-keeper's charge for supporting them, and the damages, shall be paid to the owner if he appear within thirty days; if not, then to the overseers of the poor for the place where the trespass was committed. CHAP. 24. 16. If any person shall rescue any animals from the Fines for rescue person driving them to the pound, he shall forfeit to the and pound party aggrieved four dollars above all damages sustained covered and ap- by the trespass committed by such animals; and if any breach; how re propriated. Rivers, creeks, person break any pound or by indirect means deliver any animals therefrom, he shall forfeit twenty dollars to any person who will sue for the same; which penalty and damages or penalty, as the case may be, shall be sued for and recovered with costs, as if the same were a private debt, and the penalties for such pound breach, after deducting any expenses of repairing such breach of the pound, shall be paid to the overseers of the poor for the place where the offence shall have been committed. 17. Such rivers, creeks, bays, harbors, and inlets of ed lawful fences. the sea only shall be deemed lawful fences, as in the judgment of the fence viewers of the township or place where such lands lie, shall be sufficiently deep and inac cessible to prevent the passing of cattle. Appeals from judgment of fence viewers. Damages recoverable if fence broken were lawful. cattle break his 18. If any person feel aggrieved by the judgment of the fence viewers as to the lawfulness of such last mentioned fence, or desire the decision of the Court of Sessions instead, such person may apply to the Sessions, who shall inquire into the matter, and, upon hearing the parties and their witnesses, may make an order which shall be binding on all fence viewers and others interested. 19. In every case where damage shall be done to the enclosed lands of any person by any of the animals hereinbefore mentioned breaking the fences enclosing the same, the owner of such animal shall be liable for the damage if that part of the fence broken by such animal were lawful, although other parts of the enclosing fence may not be lawful. Owner liable if 20. The owner of any of the animals hereinbefore portion of fence. mentioned breaking through a division fence which such person is bound to repair and keep up, shall be liable for any damage done by such animal upon the land of another person enclosed or partly enclosed by such division fence, although the same may not be a lawful fence. Penalty for destroying railings, public grounds, bridges, &c. 21. If any person shall destroy or injure any railing, &c., on sides of stone wall, or fence of any kind, placed on the side of any public square, bridge or causeway, he shall forfeit for each offence not less than one dollar or more than eight dollars, in addition to any private damage sustained. Not to takeaway common law right. 22. Nothing herein shall be construed to impair the right of action under the common law for damages occa sioned by horses, sheep, goats, swine or cattle breaking into lands. CHAP. 25. TITLE V. OF THE SUPPORT OF PUBLIC WORSHIP. CHAPTER 25. OF THE CHURCH OF ENGLAND. men only to 1. No minister of the Church of England shall officiate Licensed clergy as a clergyman of that Church but such as shall be duly officiate. licensed by the Bishop, and shall conform to the orders. and constitution of the Church of England; whereupon he shall be inducted into any parish which may make presentation of him. 2. No license shall be refused without the causes of re- Licenses not fusal being signified in writing and delivered to the appli- cause shewn. cant. refused without lished; mode of and estab 3. The parishes already established shall remain as Parishes estabheretofore; and when any church shall be erected for allotting, dividdivine service according to the rites of the Church of Englishing future land, the Bishop of the diocese may allot a district which parishes. shall be the parish of such church, and may divide and sub-divide any parish now established or hereafter to be allotted; but no parish shall be divided or subdivided by the Bishop unless on the application of a majority of the parishioners of the parish proposed to be divided or subdivided, or by a majority of parishioners expressed at any public meeting of the parish called for the consideration of such a measure. of churchward 4. The church wardens and parishioners of every parish of the election shall meet annually on the Monday next after Easter-day, ens and vestry, notice of the hour and place of meeting having been first and their power. given by the rector or officiating minister; at which meeting the parishioners shall choose two church wardens and twelve vestry men, to whom the clergyman officiating as rector in the parish shall be added; and such churchwardens and vestry, in all matters connected with the church and persons usually attending its services and ordinances within their respective parishes, shall have the like powers as they have heretofore exercised in this Province. corporate for filed. 5. Churchwardens and vestries are hereby constituted To be bodies within their respective parishes bodies corporate, with purposes specipower to sue and be sued, to receive grants of real and personal estate for the use of the church and all parish purposes, to improve the same and receive the rents there CHAP. 25. of for the like use, and with the approval of the bishop to sell and convey such real and personal property, and to have a common seal, and to make bye-laws and regulations consistent with the laws of the Province for the management of the temporalties of their church and the due and orderly conducting of their affairs. Of parishioners; their power of mode of assess tion. 6. The parishioners shall consist of pew holders and granting money; others accustomed to attend upon the services of the ment and collec- church; and such parishioners who have previously paid up their pew rents and assessments, or the accustomed contributions to the church, may, if they think fit, at their annual meeting by a majority of those present, grant money for the support of their ministers, and all other expenses which shall be required for the payment of such officers as may be found necessary, and for repairs and other services; which shall be assessed by the churchwardens and vestry in just proportions upon such parishioners, being persons usually attending the services and ordinances of the church, according to their respective abilities, and shall be collected in the name of the clerk of the vestry for the use of the parish as an ordinary debt; but no act of the churchwardens and vestry shall be valid unless it be agreed upon by seven of their members; nor shall the assessment be valid unless it be subscribed by that number at least; and the parishioners at their annual meeting shall appoint three of their number, by whom the churchwardens and vestry shall be assessed. Power of churchwardens and ves ments. 7. The churchwardens and vestry shall have power to try over assess- abate any individual assessment if it should appear unequal, and to compromise the same for prompt payment or otherwise, as it may be for the interest of the church, without affecting the general rate. Meeting for business, when and how called. Churchwardens &c., refusing to 8. The churchwardens and vestry may meet for the transaction of business as often as occasion may require ; and the churchwardens, vestry and parishioners, may assemble for all business connected with the parish, except the choice of officers or making assessments, as often as it may be considered necessary, either upon the application of the rector, the churchwardens, or the parishioners, provided that ten at least of the latter sign a requisition to that effect, notice of such meeting and of the business to be transacted thereat having been given by the minister of the parish during divine service in the church on some Sunday at least three days previously. 9. In case of refusal to act by persons nominated as act, others to be churchwardens and vestry, the parishioners shall proceed appointed. to nominate others in their place until a sufficient number shall accept office. |