Opinion
Decided December, 1881.
A division of a partition fence made by the fence-viewers without giving the notice required by Gen. Laws, c. 43, s. 2, is not binding upon a party who did not attend the hearing, and who has not waived want of notice, and he is not liable for any part of the fence-viewers' fees arising from making the division.
APPEAL from a judgment of a justice of the peace nonsuiting the plaintiff in a suit for one half the fees of fence-viewers. The fence-viewers, on a petition of the plaintiff to divide the partition fence of the parties, gave them ten days' notice of the hearing. At the time appointed, the fence-viewers attended and divided the fence. The plaintiff was present at the hearing, but the defendant did not appear. Judgment was ordered for the defendant, and the plaintiff excepted.
Sulloway, Topliff O'Connor and T. O. Knowlton, for the plaintiff.
Burnham McAllister, for the defendant.
Due notice of the hearing by the fence-viewers, required by Gen. Laws, c. 43, s. 2, to be fourteen days before the day appointed, was not given to the defendant. He did not appear at the hearing, and want of legal notice was not waived by him, nor cured by any act of his. The fence-viewers acquired no jurisdiction of the defendant, and their proceedings did not bind him, and furnished no foundation for the suit.
Exceptions overruled.
SMITE, J., did not sit: the others concurred.