beast lawfully going at large on the highways, that may enter on any lands of such person, not fenced in conformity to the said rule or regulation, or for entering through any defective fence. [7 B., 306; 4 B., 56; 5 D., 255.] presumed. § 45. When the sufficiency of a fence shall come in question in Sufficiency any suit, it shall be presumed to have been sufficient, until the contrary be established. [I., SS 31-45, as amended by the acts cited in the previous note, and L. 1850, ch. 319. Section 44 is doubtless superseded by SS 3082-3084, pages 99 and 100, ante, as a fence is not now required along a highway, Jones v. Sheldon, 50 N. Y., 479. But see 25 Barb., 11. Section 37 of the R. S. was doubtless intended to be amended by the following act, L. 1838, ch. 261 (3 Edm., 300). The fence viewers are the town assessors and commissioners of highways. 1 R. S., 340, § 4 (1 Edm., 313).] CHAP. 261. AN ACT to amend article fourth, chapter eleventh, title fourth and part first of the Revised Statutes relative to division fences. PASSED April 18, 1838. The People of the State of New-York, represented in Senate and Assembly, do enact as follows: for omit ting to build. SECTION 1. If any person, liable to contribute to the erection or Damages reparation of a division fence, shall neglect or refuse to make and maintain his proportion of such fence, or shall permit the same to be out of repair, he shall not be allowed to have and maintain any action for damages incurred, but shall be liable to pay to the party injured all such damages as shall accrue to his lands, and the crops, fruit trees and shrubbery thereon, and fixtures connected with the said land, to be ascertained and appraised by any two fence viewers of the town, and to be recovered with costs of suit; which appraisement shall be reduced to writing, and signed by the fence viewers making the same, but shall be only prima facie evidence of the amount of such damages. [See preceding note; 18 N. Y., 210; 5 D., 260; 4 D., 101; 3 H., 40.] 429 Complaints, how made. Proceedings. Id Id. Penalties to be set off. Proceedings upon the non-paymen of highway tax. § 41. It shall be the duty of every overseer of highways, within six days after any person so assessed and notified, shall be guilty of any refusal or neglect for which a penalty or fine is prescribed in this title, unless a satisfactory excuse shall be rendered to him for such refusal or neglect, to make complaint on oath to one of the justices of the peace of the town. [5 D., 102; 1 J. R., 515; 10 J. R., 470.] § 42. The justice, to whom such complaint shall be made, shall forthwith issue a summons directed to any constable of the town, requiring him to summon such delinquent to appear forthwith before such justice, at some place to be specified in the summons, to show cause why he should not be fined according to law for such refusal or neglect; which summons shall be served personally, or by leaving a copy at his personal abode. [3 J. R., 474; 9 J. R., 229.] § 43. If, upon the return of such summons, no sufficient cause shall be shown to the contrary, the justice shall impose such fine as is provided in this title for the offence complained of, and shall forthwith issue a warrant under his hand and seal, directed to any constable of the town where such delinquent shall reside, commanding him to levy such fine, with the costs of the proceedings, of the goods and chattels of such delinquent. 44. The constable, to whom such warrant shall be directed, shall forthwith collect the moneys therein mentioned. He shall pay the fine when collected, to the justice who issued the warrant, who is hereby required to pay the same to the overseer who entered the complaint, to be by him expended in improving the roads and bridges in the district of which he is overseer. § 45. Every penalty collected for a refusal or neglect to appear and work on the highways shall be set off against the assessment upon which it was founded, estimating all moneys collected as a satisfaction at the rate of twelve and a half cents an hour for each day. [The preceding sections 41-45 are 1 R. S., 510, §§ 41-45 (1 Edm., 469), as § 45 is amended by L. 1880, ch. 308.] Proceedings to recover penalty for obstructing highways. for ob § 102. Whoever shall obstruct any highway, or shall fill up or Penalty place any obstruction in any ditch constructed for draining the structing. water from any highway, shall forfeit for every such offence the sum of five dollars. [27 B., 211; 23 W., 451; 9 J. R., 349, 365; 34 N. Y., 452; 37 B., 53.] of en fences; order and therefor. § 103. In every case where a highway shall have been laid out or Removal ascertained, described and entered of record in the town clerk's of croaching fice, and the same has been or shall be encroached upon by fences notice erected by any occupant of the land through or by which such highway runs, the commissioners of highways of the town shall, if in their opinion it be deemed necessary, order such fences to be removed, so that such highway may be of the breadth originally intended. The commissioners making the order shall cause the same to be reduced to writing and signed. They shall also give notice in writing to the occupant of the land to remove fences within sixty days. Every such order and notice shall specify the breadth of the road originally intended, the extent of the encroachment and the place or places in which the same shall be. [27 B., 211; 6 W., 634; 2 H., 473; 14 W., 255; 3 W., 371; 2 Cow., 424; 9 J. R., 359; 7 W., 300; 31 N. Y., 59; 37 B., 303.] 104. If such removal shall not be made, within sixty days after Penalty. the service of such notice, the occupant to whom the notice shall be given, shall forfeit the sum of fifty cents for every day, after the expiration of that time, for which such fences shall continue unremoved, and the commissioners of highways may remove or cause to be removed such encroachment, and the occupant of the premises shall pay to the commissioners of highways all reasonable charges therefor to be collected in the manner provided in the forty-fifth section of said title. [Laws of 1840, ch. 300.] § 105. If the occupant to whom notice is given, shall within five days deny such encroachment, the commissioners, or some one of them, shall apply to any justice of the peace of the county, for precept directed to any constable of the town, to summon twelve a Proceed denial of ings on encroachment. Jury, etc, to be freeholders thereof, to meet at a certain day and place, to be specified in such precept, and not less than four days after the issuing thereof, to inquire into the premises. The constable to whom such precept shall be directed shall give at least three days' notice to the commissioners of highways of the town, and to the occupant of the land, of the time and place at which such freeholders are to meet. [Laws of 1840, ch. 300; 3 W., 468; 13 J. R., 460.] § 106. On the day specified in the precept, the jury so summoned, sworn, etc. shall be sworn by such justice, well and truly to inquire whether any such encroachment has been made, and by whom. Such witnesses as may be produced by either party, shall also be sworn by such justice; and the jury shall hear the proofs and allegations which may be produced and submitted. Verdict, how en forced. Id. [3 W., 471.] § 107. If the jury find that any encroachment has been made, they shall make and subscribe a certificate in writing, stating the particulars of such encroachment, and by whom made; which shall be filed in the office of the town clerk. The occupant of the land, whether such encroachment shall have been made by him, or by any former occupant, shall remove his fences within sixty days after the filing of such certificate, under the penalty provided in the one hundred and fourth section of this title. He shall also pay the costs of such inquiry; and if the same shall not be paid within ten days, the justice shall issue a warrant for the collection thereof, in the manner provided in the forty-third section of this title. 300.] [36 B., 493; 26 B., 592; 19 B., 537; 12 B., 510; 22 W., 135; 7 W., 108. If the jury find that no encroachment has been made, they shall so certify, and shall also ascertain and certify the damages which the then occupant shall have sustained by such proceeding; which, together with the costs thereof, shall be paid by the commissioners, and shall be a charge in their favor against the town by which they shall have been elected. [The preceding sections 102-108 are 1 R. S., 521, §§ 102-108 (1 Edm., 481) and L. 1840, ch. 300, as amended, as to § 103, by L. 1870, ch. 125 (7 Edm., 660). See the following act of 1862.j 432 CHAP. 243. AN ACT making further provisions relative to encroachments upon highways. PASSED April 15, 1862; three-fifths being present. The People of the State of New-York, represented in Senate and Assembly, do enact as follows: ings upo before jury. SECTION 1. Upon the hearing before a jury, as provided in sec- Proceedtion one hundred and six of article fifth, title first, chapter six- hearing teenth and part first of the Revised Statutes, the justice who has issued the precept to such a party shall preside at the trial, in the same manner as upon the trial of an issue joined in a civil action commenced before him, six of the jurors summoned shall be drawn and empanelled in the same manner as upon trial by jury in civil action before him, and he shall have the power and it shall be his duty to decide as to the competency of jurors, the competency and admissibility of evidence, and all other questions which may arise before him, in the same manner and with the like effect as upon a jury trial in civil actions before him; and such justice shall adjust and determine the costs of such inquiry, and in case the jury shall find an encroachment, he shall render and docket a judgment Judgment. to that effect, and for such costs against the person or persons who shall have denied such encroachment; in case the jury find no encroachment, he shall render and docket a judgment to that effect against the commissioner or commissioners prosecuting the proceedings, and also for such costs, together with the damages, if any, which may have been fixed by the jury, and payment thereof shall be enforced by such justice, as in other cases of judgments rendered by him. § 2. The person or party against whom such judgment shall be Appeal. rendered, may, within sixty days after filing the certificate of the jury, appeal from the finding and judgment to the county court of the same county; such appeal shall be made by the service, within twenty days after the docketing of said judgment, of notice of appeal upon the justice and upon the successful party or parties, or |