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S. 4 gives power to the Superior Courts, after the prisoner has been in custody two months under such a commitment, upon application shewing that notice has been given to the Provincial Secretary, to discharge the prisoner out of custody, unless sufficient cause be shown why such discharge should not be made.*
FELONY. WHAT IT IS.–Felony includes the higher class of offences, as murder, rape, burglary, arson, and may be either capital or not. Capital felonies are punishable with death; felonies not capital, by imprisonment in the provincial penitentiary for life, or for any period not less than two years, or in any other prison for any period less than two years.
Private persons may arrest felons .by a warrant from a Justice of the Peace, or even by their own authority, and are bound to assist a peace officer in taking any felon into custody.
All offences which do not amount to felony are misdemeanors; as perjury, battery, libel, conspiracy, attempts and solicitations to commit felonies, and various injuries to property from a spirit of wantonness or revenge. In cases of felony the accused has the right to challenge peremptorily twenty of the jury, without assigning any cause : this right does not exist on trial for cases of misdemeanor.
REPAIR OF DIVISION FENCE.—“Each of the parties occupying adjoining tracts of land shall make, keep up and repair a just proportion of the division or line fence on the line dividing such tracts, and equally on either side thereof." (Con. Stat. U. C., c. 57, s. 1.)
WHAT CONSTITUTES A LAWFUL FENCE. “ Any fence coming within the meaning of a lawful fence in any by-law of the
* The commitment in a caso under this act must be special, as no form has been given by the act.
See “Extradition Commitment."
municipal council in that behalf is to be considered a lawful fence; and when no such by-law exists, any fence viewers, when called upon, are to exercise their own judgment, and decide what they consider to be a lawful fence.” (16. s. 2.)
DivisioN FENCES NOT TO BE REMOVED WITHOUT NOTICE.—“The owner of the whole or part of a division or line fence which forms part of the fence enclosing the occupied or improved land of another person, shall not take down or remove any part of such fence : 1. Without giving at least twelve months previous notice of his intention to the occupier or owner of such adjacent enclosure. 2. Nor unless such last-mentioned owner or occupier, after demand made upon him in writing by the owner of such fence, refuses to pay therefor a sum to be determined, as provided in the next sub-section. 3. “Nor, if such owner or occupier will pay to the owner of such fence, or of any part thereof, such sum as three fence viewers, or a majority of them, in writing, determine to be the reasonable value thereof.” (16. s. 3.)
Cost OF DIVISION FENCE.“When any land which has laid unenclosed or in common is afterwards enclosed or improved, the occupier shall pay to the owner of the division or line fence standing upon the divisional line between such land and the enclosure of any other occupier or proprietor, a just proportion of the value thereof.” (16. 8. 4.)
WATER FENCES.—“ When a water fence, or a fence running into the water, is necessary, the same is also to be made in equal parts, unless the parties otherwise agree.” (Ib. s. 5.)
LANDS DIVIDED BY A RIVER OR CREEK. “When lands belonging to or occupied by different persons are divided from each other by any river, brook, pond or creek, which of itself is not a sufficient barrier, and it is impracticable to fence upon the true boundary line, the fence shall be set up on one side of the river, brook, pond, or creek, or partly on one side and partly on the other, as may be just.” (Ib. 8. 6.)
DITCHES AND WATER-COURSES.-"When it is the joint interest of parties resident to open a ditch or water-course for the purpose, of letting off surplus water from swamps or low miry lands, in order to enable the owners or occupiers thereof to cultivate or improve the same, such several parties shall open a just and fair proportion of such ditch or water-conrse according to their several interests.” (Ib. s. 7.)
FENCE VIEWERS.--"Three fence viewers of the municipality, or a majority of them, may decide all disputes between the owners or occupants of adjoining lands, or land so divided or alleged to be divided as aforesaid, in regard to their respective rights and liabilities under this act, and also all disputes respecting the opening, making or paying for ditches or watercourses under this act.” (Ib. s. 8.)
AWARD IN WRITING.—“Every determination or award of fence viewers shall be in writing, signed by such of them as concur therein, and they shall transmit the same (or a certified copy thereof) to the clerk of the municipality, and shall also deliver a copy to every party requiring the same, and such determination or award shall be binding on the parties thereto." (16. s. 9.)
DISPUTES.—“When the dispute is as to the commencement or extent of the part of the fence to be made or repaired by either party, or as to the opening of a ditch or water-course, or as to the part, width, depth, or extent that any person should open or make, either party may by writing notify the viewers, and name in the notice for the investigation thereof the time and place of meeting, and shall also notify the other party to appear at the same time and place.” (16. s. 10.)
FENCE VIEWERS TO ATTEND, &c.—“On receiving such notice the fence viewers shall attend at the time and place named, and after being satisfied that the other party has been also duly notified, they shall examine the premises and hear the parties and their witnesses if demanded, and according to the subject matter of the reference shall decide the commencement or extent of the part of the fence which either claims to have made or repaired, or refuses to make or repair, or shall divide or apportion the ditch or water-course among the several parties, baving due regard to the interests of each in the opening thereof, and shall fully determine the matters in dispute.” (16. 8. 11.)
The fence viewers on any reference as to a ditch or watercourse what length each party shall open, should they find one of the parties not sufficiently interested in the opening to make him liable for any portion, but that it is necessary for the other party that it should be continued across such tract, they may award it to be done at the expense of the other; after such award the last mentioned party may open the ditch or course across the tract at his own cost without being a trespasser. (See ib. s. 12.)
REVIEW OF AWARD.—When by reason of a material change of circumstances in respect to the improvement and occupation of adjacent lots or parcels of land, an award previously made under this act ceases, in the opinion of either of the parties, to be equitable, such party may obtain another award of the fence viewers by a like mode of proceeding; and if the fence viewers called upon to make a subsequent award find no reason for making an alteration, the whole cost of the reference shall be borne by the party at whose instance it has been made.” (16. s. 13.)
REFUSAL OF ONE Party.--"If any party neglects or refuses on demand made in writing as aforesaid to open or make and keep open his share of the ditch or water-course, allotted or awarded by the fence viewers within the time allowed by them, any of the other parties may, after completing his own share or proportion, open the share or proportion allotted to the party in default, and shall be entitled to recover not exceeding forty cents per rod from the party so in default.” (Ib. s. 14.)
“If, after an award of fence viewers, or after being required by a demand in writing by the party occupying the adjoining tract, or a tract separated therefrom by a river, pond or creek, a party in the occupation of any tract of land neglects or refuses, for a period of thirty days, to make or repair (as the case may be) his proportion of the division or line fence between his tract and such adjoining or separated tract, or if the party making the demand neglects or refuses for the like period to make or repair his own proportion of the fence, either party, after first completing his own proportion, may make or repair in a substantial manner and of good sound materials the whole or any part of the fence which ought to have been made or repaired by the other party, and may recover from him the value thereof.” (Ib. s. 15.)
How AMOUNT SHALL BE ASCERTAINED. — To ascertain the amount payable by any person who, under the authority of this act, makes or repairs a fence, or makes, opens or keeps open any ditch or water-course which another person should have done, and to enforce the payment of such amount, the following proceedings shall be taken:
1. “Any of the persons interested may apply to a Justice of the Peace residing within the municipality or township in which any such fence is situated, and if there be no such Justice residing therein, then to any Justice of the Peace residing in any adjacent municipality or township, and thereupon such Justice shall issue a summons under his hand and seal, directed by name to three fence viewers of the municipality in which the fence is situated, requiring them to attend at the place and on the day and hour therein mentioned, to view such fence and to appraise the same.
2. The Justice shall at the same time issue a summons to the party so having neglected or refused to make or repair his proportion thereof (who shall thenceforth be considered the defendant in the case), requiring him to appear at the same time and place, to shew cause why the party claiming payment (who shall thenceforth be considered the plaintiff in the case) should not recover the same.
3. “The fence viewers shall be personally served with the summons at least four days before the day named for their attendance.