EMERSON C. HARRINGTON, GOVERNOR. 1443

232. All such joint division fences, if made of post and
rail, or plank, shall be four feet and a half high; all worm
fences shall be five feet high, made of good and sound rails,
staked and ridered and substantially built.

233.. If either party shall refuse or neglect to make or keep
in good repair his portion of said division fence, after twenty
days' notice shall have been given to him, his tenant or over-
seer, by the person aggrieved, the person so aggrieved may
apply to the county commissioners, who shall, upon proof of
the notice aforesaid, appoint three discreet and sound-judging
freeholders of said county, not related to either party, who
shall have full power to hear and determine all matters in dis-
pute connected with said fence.

234. Said freeholders, if they find that the making or re-
pairing of the fences is for the mutual advantage or protection
of 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 repair-
ing 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 a non-resident of the County.

235. 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 afore-
said, 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 enti-
tled to judgment against him in the circuit court, or before a
justice of the peace for the county, and the serving of the sum-
mons in such suit upon the tenant, owner or representative,
shall be a sufficient service of such writ upon the owner.

236. 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 refus-
ing, by reason of its lying contiguous to unenclosed or waste