ART. 13.] FENCES. 1325

both parties, shall apportion to each his just proportion thereof,
and mark and bound the same, and shall make out their award
in writing, under their hands and seals, verified by affidavit,
requiring the recusant party to make or repair his part of the
fence, by a day to be specified in the award, and also giving their
estimate of the cost of making or repairing such fence, and shall
deliver a copy of said award to each party interested, or his
tenant, overseer or representative, in case one of the parties is
non-resident of the county.

1864, ch. 204.

94. If the party thus required to make or repair his part of
the fence, shall fail to do so within the time specified, it shall be
lawful for the other party interested to make or repair the same
at an expense not exceeding that specified in the award; and as

soon as he shall have made or repaired said fence, and have
obtained certificates of the freeholders aforesaid, that he is
entitled to the amount specified in the award or any part thereof,
he shall be entitled to recover the amount so expended, from the
owner of the fence, as other debts are now recovered; and if the
owner of such fence is a non-resident of said county, the party
so making or repairing shall be entitled to judgment against him
in the circuit court, or before a justice of the peace for the
county, and the serving of the summons in such suit upon the
tenant, owner or representative, shall be a sufficient service of
such writ upon the owner.

Ibid.

95. If the said freeholders shall find that the said fence, or
any part thereof, the making or repairing of which is sought to
be enforced, will be of no use or benefit to the party refusing, by
reason of its lying contiguous to unenclosed or waste lands, or for
any other reason, they shall so report in their award; and no one
shall be required to make or repair more than one-half of such,
fence, as shall be necessary to him.

Ibid.

96. If any person, having an interest in any joint division
fence, shall fail to make or keep in repair his part thereof, he
shall not be entitled to damages on account of any trespass