18 at Eagle precinct, in the county of La Salle, did unlawfully enter into the lands and possessions of the said A. B., there situate, and known and designated as follows, to wit (insert the description :) and then and there did unlawfully put out and expel the complainant from his said lands and possessions, wherein the said A. B. had been in the quiet and peaceable possession for the space of eight years preceding, and that his interest therein still subsists, and that the said C. D. still doth hold and detain the said lands and possessions from the said A. B., unlawfully and without right: Whereupon the said A. B., on the day of 18 prayed of me, being a justice as aforesaid, to issue a summons in this behalf, and I, having heard the said complaint and prayer, did thereupon issue a summons, in the name of the people of the state of Illinois, directed to the sheriff of said county, requiring him to summon the said C. D. to appear before me, at my office in Eagle precinct, on the

at

o'clock in the

day of 18 noon, which was duly returned with an endorsement thereon signed by the said sheriff, as follows, "Personally served, October 23d, 1844, by reading to the within named C. D.;" and, on the said day of 18 I issued a precept for a jury to the said sheriff, commanding him to summon a jury of twelve good and lawful men of the county, to appear before me at the return of the said summons to hear and try the said complaint, which was returned by the said sheriff with a list of the names of the jurors on the back thereof, and certified by him. And, on the 18 in pursuance of the said summons, personally appeared before me as well the said C. D. as the said A. B.; and the said complaint having been read to the said C. D., he said that he was not guilty of the matters set forth therein.

day of

And the jurors of the jury summoned as aforesaid, having been called, tried, and sworn, did sit together before me and hear the proofs and allegations of said parties which were delivered publicly in their presence.

And after hearing the said proofs and allegations, the jury were kept together in a convenient place, by the said sheriff, until they had agreed on their verdict.(a) And the said jury,

(a) If the verdict is for the defendant, then say, " And the said jury having agreed on their verdict, came into court and delivered the same publicly, and thereby found the said C. D. not guilty. It is, therefore, considered 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 his defence in this behalf, according to the form of the statute in such case made and provided, and that he have execution therefor. In testimony whereof, &c.

having agreed on their verdict, came into court and delivered the same publicly, and thereby found the said C. D. guilty in manner and form as set forth in the complaint.

It is, therefore, considered by me, the said justice, that the said A. B. recover and be restored to the possession of the lands and possessions particularly described and designated in said complaint, and that he 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 William McCormick, have hereunto set my hand and seal, at Eagle precinct, in the county of La Salle, the day of

18

William McCormick. [L. S.]

Form of writ of restitution.

State of Illinois, ર

La Salle county, S 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 William Mc Cormick, 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

of

day

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 into 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. Given under the hand and seal of the said justice, the day of William McCormick. [L. S.]

18

Form of execution for costs against the complainant.

State of Illinois,

La Salle county, 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 William Mc Cormick, 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 18 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 defence 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 day of 18

seal of the said justice, the William McCormick. [L. S.]

CHAPTER XII.

INCLOSURES.

By the common law every man's land is, in the eye of the law, inclosed and set apart from his neighbor's; and that either by a visible and material fence, as one field is divided from another by a hedge, or by an ideal invisible boundary, existing only in contemplation of law, as when one man's land adjoins to another's in the same field. 3 Bl. Com., 209.

The owner or occupier of a close was not obliged to fence against an adjoining close, unless by force of prescription, but he was at his peril to keep his cattle on his own close, and to prevent them from escaping. 6 Mass. Rep., 94.

By sec. 3 of "An act regulating inclosures," it is enacted that, "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 law 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; and when they shall judge any fence to be insufficient, they shall give notice thereof to the owners or possessors, and if any one of the owners or possessors, upon request of the other, and due notice given by the said viewers, shall refuse or neglect to make or repair the said fence or fences, or to pay the moiety of the charges of any fence before made, being the division or common fence, within twenty days after notice given, then, upon proof thereof before two justices of the peace of the respective county, it shall be lawful for the said justices to order the person aggrieved and suffering thereby, to make or

repair the said fence or fences, who shall be reimbursed his costs and charges from the person so refusing or neglecting to make or repair the partition fence or fences aforesaid, or to order the delinquent to pay the moiety of the charge of the fence before made, being a division or common fence, as the case may be; and if the delinquent shall neglect or refuse to pay the party injured the moiety of the charge of any fence before made, or to reimburse the costs and charges of making or repairing the said fence or fences, under the order aforesaid, then the same shall be levied upon the delinquent's goods and chattels, under warrant from a justice of the peace, by distress and sale thereof, the overplus, if any, to be returned to the said delinquent: Provided, That nothing herein contained shall be intended to prevent or debar any person or persons from inclosing his or their grounds, in manner they please, with sufficient walls or fences of timber, other than those heretofore mentioned, or by dykes, hedges, and ditches, all such walls and fences to be in height at least five feet from the ground; and all dykes to be at least three feet in height from the bottom of the ditch, and planted and set with thorn, and other quickset, so that such inclosure shall fully answer and secure the several purposes meant to be answered and secured by this law: Provided, also, That such walls or fences of timber, other than those heretofore mentioned, and dykes, hedges, and ditches, shall be subject to all provisions, inspections, and restrictions, to which, by this law, any other inclosure or fence is made liable according to the true intent and meaning hereof. Gale's Stat., 277.

Under this statute it, is apprehended that, before a party can be made liable for the making or repairing of a partition fence, the proportion which he is bound to make or repair, ought to be either agreed upon or assigned, pursuant to the statute. Until this is done the obligation is undefined. The respective occupiers of two closes adjoining are bound to make and maintain each one half of the partition fence, but, unless the fence, or the line on which it is to be made, has been divided by agreement between the parties, or assigned pursuant to the statute, or by prescription, neither party is obliged to maintain any part of the partition fence. 6 Mass. Rep., 100. And indeed, if there exists in such case a joint obligation to make the fence, 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. 6 Mass. Rep., 101. 19 Johns. Rep., 385.

In Massachusetts and New York it has been held that an