judgment, that the respondent be acquitted and discharged from the forfeitures for which he is now prosecuted, and that he recover against the complainant his costs. And the warrant of distress for levying the forfeitures, when the same shall appear to be incurred, shall run in the form herein prescribed. 1796 C. 58, Sec. 4. When any town, district or plantation, shall neglect to raise money for the purpose of making and repairing the highways and town ways, as aforesaid, it shall be the duty of the several surveyors in such towns to cause so much labor to be done on the said ways, in their respective districts before the first day of July, as shall amount to one half at least of the expenses of repairing said ways the year next preceding. 8. Contracts for making or repairing Roads. 1796 C. 58, Sec. 5. Every town or district may, at their annual meeting, or any meeting warned for that purpose, authorize their surveyors or any other person or persons, to enter into any contract or contracts for making or repairing the highways or town ways within the same or any part thereof; and may also empower their surveyors of highways to collect taxes for making and repairing the ways, which shall not be paid in labor or otherwise, within the time limited by law, or such periods as may be agreed upon by such town or district; and for that purpose the assessors shall deliver to them warrants of distress, which shall be in the form prescribed by law for collecting other town or district taxes, mutatis mutandis; or they may deliver to the collector or collectors of taxes a warrant for collecting the deficiency in any highway tax, which the collector is hereby empowered and required to levy in the same way and manner as other taxes are by law to be collected, and pay the same over to the surveyor or surveyors, who shall be held to account with the selectmen for the expenditure thereof. NOTE. Sec. 6. Towns are allowed a reasonable time, not exceeding one year, to make a road passable, safe, &c. 9. Money remaining in a Surveyor's hands unexpended. Sec. 5. If any money shall remain unexpended in the hands of any surveyor or surveyors after the expiration of their office, they shall pay the same to the town treasurer. And if any surveyor shall neglect to pay over such sums to the said treasurer upon demand, the said treasurer, or his successor in that office, shall have power to recover the same in action upon the case, with twenty per cent. in addition thereto, to the use of the town or district, and with costs of suit.— And if, pending the action, another town or district treasurer shall be appointed, he, on noting his appearance on the record, shall have power to pursue the same action to final judgment and execution. 10. In case towns are Indicted, &c. 1786 C. 81, Sec. 11. In case the inhabitants of any town shall be fined upon the presentment of the grand jury, or upon the information of the attorney general, or the person acting for the government in his absence, for a deficiency in the highways, the surveyor within whose limits the deficient ways are, shall be liable to refund the same with all costs, to the said inhabitants, upon an action of the case to be brought therefor; or the surveyor of the highways may be prosecuted on presentment or information as aforesaid, and fined for any deficiency that may arise in his limits. And the inhabitants of any town merely as such shall not be excluded from being witnesses upon any prosecution upon this statute, upon a supposition of being interested as members of the corporation. JUDICIAL DECISION. Wood vs. Waterville. Mass. Rep. vol. 5, p. 294. A surveyor of the highways is by law effectually to repair the ways within his district, and when the town does not make sufficient provision he has his remedy against the inhabitants. FIELD DRIVER.* OATH. YOU solemnly swear, that you will faithfully discharge the duties of your office as a Field Driver, within and for the town of HEADS. the ensuing year. So help you God. 1 Choice. 2 Field Driver may Impound. 3 Private persons may Impound. 4 Proceedings when the owner is known. 5 Proceedings when the owner is unknown. 6 Rescue and Pound Breach. 7 Horses. 8 Sheep and Goats. 9 Towns may restrain cattle, &c. under a penalty. 1788 C. 65, Sec. 2. annual meeting for the 1. Choice. There shall be chosen at the choice of the town officers in each town, two or more persons for field drivers, who shall be sworn to the faithful discharge of their trusts. 2. Field Drivers may Impound. Sec. 2. Field drivers thus chosen and sworn, are hereby severally authorised and empowered, to take up and impound any swine† unyoked or unringed, horses‡ unfettered, sheep]] not under the care of a shepherd, or going at large on the common, or highways, leading *Stackpole and another vs. Healy. Mass. Rep. vol. 16, page 33. The public have no rights in the highway, but a right to pass and repass thereon; they cannot therefore justify turning their cattle thereon for the purpose of grazing And if cattle, so on the highway, for the purpose of grazing, escape into the adjoining close, the owner of the cattle cannot avail himself of the insufficiency of the fence, in excuse of the trespass. Further duty respecting swine, see Hog Reeve. Further duty respecting horses, see head 7. Further duty respecting sheep, see head 8. through such town between the fifteenth day of April and the first day of November, and them in pound detain, or deal with as is herein after mentioned, until the owner shall pay, for the use of the field driver, one shilling* a head for all such horses, three pence* a head for all sheep and swine, besides two pence a head for all such horses, and one penny for all sheep and swine, to the pound keeper [see pound keeper.] who may have the care of the particular pound in which they may be restrained. [See head 9, for further duty.] NOTE. This section does not extend to neat cattle. 3. Private persons may Impound. Sec. 3. Any person injured in his tillage, mowing or other lands under improvement, that are enclosed with a legal and sufficient fence,† whether such improved lands be in a common or general field, or in a close by itself, by swine, sheep, horses, or neat cattle, may have and maintain an action of trespass quare clausum fregit, against the owner of the cattle for his damages; or he may impound the creatures doing the damage, or some of them, at his election, with or without the aid of a field driver; and in case he impound the creatures he may restrain them in one of the town pounds, or in some other place under his immediate care and inspection, as may be most convenient for relieving them with suitable meat and water; which re * See head 7 and 8, three shillings for horses and five cents for sheep. For what constitutes a legal fence, see fence viewer, head 2 + Rust vs. Low, & Stanwood & Melody vs Reab. Mass. Rep. vol. 6, p. 90, and vol. 4, p. 471. The tenant of a close is not obliged to fence, but against cattle rightfully on an adjoining close. If all the fence is insufficient, yet if cattle do not escape through the insufficient fence, but are turned in, they may be lawfully distrained damage feasant. Penalties for neat cattle see head 9. lief it shall be the duty of the person impounding tofurnish, or cause to be sufficiently furnished, during their confinement. 4. Proceedings when the owner is known. Sec. 4. When any of the creatures aforesaid shall be impounded, whether it be done for being at large out of the owner's inclosure, or for doing damage as aforesaid, the person impounding shall inform the owner of the creatures impounded (if known) within the space of twenty four hours, by giving him a notification [see Form 136 and 137] thereof in writing or otherwise; and in case the owner of the creatures impounded be absent, such written notification shall be left at his house or usual place of abode, describing the creatures, and specifying the time, place and cause of impounding, and the person impounding shall also leave with the pound keeper, if they are in the town or district pound, at the time such creatures are committed to his custody, a memorandum, [see Forms 140 and 141] in writing under his hand, of the cause of impounding, and the sum he demands in damages from the owner before they are liberated: And no action shall be maintained against the pound keeper, for detaining such creatures, until that sum, with his lawful fees, shall be paid. Provided nevertheless, That if the person whose creatures are impounded, damage feasant, shall think the damages mentioned in the memorandum left with the pound keeper, are unreasonable, he may have the same ascertained by two or more disinterested, judicious persons being thereto appointed [see Form 18] and duly sworn [see Forms 19 and 20] by some Justice of the Peace for the same connty, or by the town clerk where no Justice of the Peace is; which sums thus ascertained shall be taken instead of the sum first left with the pound keeper. And if the owner doth not within twenty four hours after notice as aforesaid, pay the damage and charges, of impounding or replevy the creatures, the party trespassed upon |