the proprietors, according to the number of acres held and cultivated, or otherwise used, by each one. R. S. c. 43, § 20, 28.

34. The part, to be maintained by each proprietor, shall be set out and assigned to him, by any two or more fence viewers, unless the proprietors shall agree on an apportionment of the fence among themselves; and in all cases, the proportion of fence, so assigned to each proprietor, shall be recorded by the clerk in the books of the proprietors, and, where there is no such clerk, the said record shall be made by the clerk of the town in which such general field is situated. Ib. § 28.

35. If any proprietor of land in such general field shall decline to cultivate his land, or to use it for pasturing, for the growth of wood, or otherwise, he shall not be required to maintain any part of the fence, nor to pay any tax or assessment on account of his land, so long as he shall decline to cultivate or use it as aforesaid. Ib. § 29.

36. The expense of apportioning the fence, and also of making and maintaining such part thereof as cannot be conveniently and justly assigned to any one proprietor, shall be borne by all the proprietors who are liable to be taxed, in proportion to their respective interests; and the part assigned to each proprietor shall be made and maintained by himself, so long as he shall use his part of the said general field of pasturing, planting, mowing or otherwise. Ib. § 30.

37. If the part of the fence assigned to any proprietor shall become deficient, and if he shall not repair it within three days after notice of such deficiency, given to him by a fence viewer of the town, it may be repaired by any other 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.

38. 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.

39. 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 DIS. TRAINING CATTLE.

1. Field Drivers, how chosen and qualified.

2. Duty of field drivers to take up cattle.

3. Fees of field drivers and pound keepers to be paid by owners.

4. Pound keepers to provide for beasts.

5. Fees of pound keepers.

6. Field drivers can impound cattle going at large on Sunday.

7. Turnpike road is a highway within the meaning of the statute. 8. Fees of field drivers.

9. Towns to maintain pounds. 10. Penalty on towns for neglecting to maintain pounds.

11. Pound keepers to be appointed. 12. Damages may be recovered against owners for injury done by beasts.

13. Same subject.

14. The owners of a close not obliged to fence except, &c.

15. Public cannot turn cattle upon highway to graze.

16. Beasts, distrained for doing damage, to be impounded.

17. Person distraining to state his demand.

18. Field drivers in certain cases need not leave memorandum.

19. Others neglecting it become trespasser ab initio.

20. Beasts, not to be delivered, until all costs and charges are paid.

21. Notice to be given to the owner or keeper.

22. Person commencing action against field driver within twenty four hours after they are impounded waives the required notice.

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. 5 Cush. 265.

4. The pound keeper shall furnish any beasts, impounded by any field driver, with suitable food and water, so long as they are detained in his custody. Ib. § 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. Ib. § 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. A turnpike road is a highway within the meaning of the law restraining cattle. 4 Pick. 258. 12 Met. 198.

8. 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 that ten sheep are taken up at the same time, the fees for all above that number shall be only five cents per head. R. S. c. 113, § 2.

9. 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.

10. 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 commonwealth. Stat. 1848, § 272.

11. 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. Ib. § 21.

12. 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 hereinafter directed. Ib. § 4. 18 Pick. 422.

13. 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.

14. 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.

15. 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.

16. 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.

17. If the beasts are impounded, in the town pound, the distrainer shall leave with the pound keeper a memorandum 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.

18. A field driver who impounds beasts for going at