have a writ of restitution therefor; and it is further considered, that he recover against the said C. D., the sum of

dollars, for his costs and charges, by him laid out and expended in and about the prosecution of this suit, according to the form of the statute in such case made and provided, and that he have execution therefor.

In testimony whereof, I, the said L. M., one of the justices of the peace, as aforesaid, have hereunto set my hand and seal at in

The People of the State of Illinois to the Sheriff of the said County:

Whereas A. B., lately exhibited his complaint under oath, in writing, before L. M., Esquire, one of the justices of the peace of said county, that (set out the charge as in the complaint,) and prayed that the said justice issue a summons in that behalf; whereupon the said justice issued a summons, directed to the sheriff, requiring him to summon the said C. D. to appear before the said justice on the -day of 18, and at the same time issued a precept to the sheriff, commanding him to summon a jury to appear before him at the same time and place, on which day the said C. D. appeared before the said justice, and traversed the said complaint, and the jury being sworn, after hearing the proofs and allegations of the parties, found the said C. D. guilty; whereupon it was considered by the said justice, that the said A. B. be restored to the possession of the said lands and possessions, and have a writ of restitution therefor; and it was further considered by the said justice that the said A. B. recover against the said C. D. the sum of dollars for his costs and charges by him laid out and expended, in and about the prosecution of said suit, as appears to us by the record of the said justice:

We, therefore, command you to go to the said premises without delay, taking with you the power of the county, if necessary, and to cause the said A. B. to be restored and put in full possession of the said lands (or "tenements,") and possessions, according to his estate and right therein before the said entry, (or "detainer,") in pursuance of the statute in such case made and provided.

And we also command you to levy of the goods and chattels of the

said C. D. in your county, the said sum of

dollars, which was

adjudged to the said A. B. for his costs and charges aforesaid, whereof the said C. D. is convicted, as appears to us by the said record, and that you make return of what you shall do hereon, with all convenient speed.

of

Given under the hand and seal of the said justice, the

185-.

day

L. M., J. P. [SEAL.]

Form of Execution for Costs against the Complainant.

STATE OF ILLINOIS,

SS.

The People of the State of Illinois to the Sheriff of the said County: Whereas, A. B. lately exhibited his complaint under oath in writing before L. M., Esquire, one of the justices of the peace of the said county, against C. D. for a forcible entry and detainer, whereupon the said C. D. was summoned, and appeared before the said justice on the day of 185-, and traversed the said complaint, and the jury for that purpose duly summoned and sworn, after hearing the proofs and allegations of the parties, by their verdict found the said C. D. not guilty; whereupon it was considered by the said justice that the said C. D. recover against the said A. B. the sum of dollars for his costs and charges by him laid out and expended in and about his defense in this behalf, as appears to us by the record of the said justice:

We therefore command you that of the goods and chattels of the said A. B. in your county, you levy the sum of - dollars for his costs and charges by the said C. D. laid out and expended as aforesaid. And do you make return of what you shall do hereon with all convenient speed.

Given under the hand and seal of the said justice, the

185-.

- day of

L. M., J. P. [SEAL.]

CHAPTER IX.

OF INCLOSURES AND FENCES.

Rev. Stat. 280, Sec. 11. "For the better ascertaining and regulating of partition fences, it is hereby directed that when any neighbors shall improve lands adjacent to each other, or when any person shall inclose any land adjoining to another's land already fenced, so that any part of the first person's fence becomes the partition fence between them, in both these cases the charge of such division fence, (so far as inclosed on both sides,) shall be equally borne and maintained by both parties; to which, and other ends in this chapter mentioned, the county commissioners, yearly, and every year in the term next after the month of January, shall nominate, and are hereby required to nominate and appoint three honest, able men for each township, who being duly sworn to the faithful discharge of the duties of their appointment, shall proceed at the request of any person or persons feeling him or themselves aggrieved, to view all such fence and fences, about which any difference may happen or arise; and the aforesaid persons, or any two of them, in each township respectively, shall be the sole judges of the charge to be borne by the delinquent, or by both or either party, and of the sufficiency of all fences, whether partition fences or others."

By the Act to provide for township organization, approved February 17th, 1851, Article 3, Sec. 3, the assessor and the three commissioners of highways of each town, in counties adopting township organization, are made fence viewers by virtue of their office.1

It would seem that before a party can be made liable for making or repairing a partition fence, the proportion which he is bound to make

(1) The forms here given, have been prepared with reference to township organization, (See Haines' Town. Organ., page 88,) and when used in counties not adopting this system, the only change necessary will be to insert the number of the township, according to the customary description, instead of the name of the town.

or repair, ought to be either agreed upon or else assigned according to law, for until this is done, the obligation is undefined, unless it may have been otherwise determined by prescription; and where there exists in such case, a joint obligation to make the fence, it is held that no legal effect would flow from it; for then each party would be bound equally to make every part; and if the fence be defective, each party would be chargeable with the deficiency; and upon the escape of cattle from either close to the other, through a defect in any part of the fence, the owner of the cattle could not allege the escape to be from the deficiency of the other's fence. 2

eight hundred, &c., it is agreed by and between A. B. of the county

of

and State of Illinois, of the one part, and C. D. of said county, of the other part, as follows, viz. :

Whereas, the said A. B. has heretofore erected a fence on the division line, between his lands and the lands of the said C. D., which said fence commences at the (here describe location of fence,) and whereas, after the erection of said fence, the said C. D. inclosed a field on the east side of said division line, so that sixty rods of said fence, commencing at the (here describe the location of said portion of fence,) has become, and now is a partition fence between the fields of the said A. B. and C. D., and whereas, the said C. D. has paid to the said A. B. one half of the expense of building said sixty rods of fence, it is therefore, now agreed between the parties hereto, that the thirty rods on the north part of the said sixty rods, shall be well and sufficiently maintained and kept in repair by the said A. B., and the remainder of the said sixty rods shall be kept in like repair by the said C. D.

In witness whereof, we have hereto set our hands and seals, the day and year aforesaid.

Executed and delivered in the

presence of

}

A. B. [SEAL.]

C. D. [SEAL.]

(1) 6 Mass. 100.

(2) 6 Mass. 101; 19 Johns. 385.

Form of Certificate of Fence Viewers of Value of Fence in case of an adjoining Owner.

Whereas, A. B. and C. D. were and are, as appears to us, the owners of certain adjoining lands in said town of The lands of the said A. B. being described as (describe the premises in question with reasonable certainty,) and the land of the said C. D. being described as (describe the land,) and the said A. B. formerly permitted his land so adjoining that of the said C. D., to lie open and unenclosed, while the land of the said C. D., has been and is now enclosed by a fence; and whereas, the said A. B. has lately enclosed his said land, so that now the fence of the said C. D., has become a division fence between said lands; and whereas a dispute or disagreement has arisen between the said parties concerning the proper portion of the value of said division fence to be paid by the said A. B. Now therefore, we, the undersigned fence viewers of said town of do hereby certify that we have made inquiry into the facts, and examined the premises; that the following is a correct description of the fence built by the said C. D. as aforesaid, to wit: Commencing at the north

west corner of section eight in said town, and running thence south on the west line of said section, one hundred and sixty rods to the southwest corner of said quarter section; and that we have estimated the value of said fence to be dollars, and that the proportion of said

fence to be paid by said A. B. to the said C. D., is

dollars.

Form of Certificate of Fence Viewers in relation to Fence to be made or maintained by Owners of adjoining Lands.

Whereas, A. B. and C. D., are, as appears to us, the owners of certain lands adjoining, in the said town of (here describe the lands