
    LYMAN IRISH v. HIRAM BLACKMER.
    
      Fence Viewers, Fees of. It. L. ss. 8186, 31S7, 4543.
    When one party pays the entire fees (lire to fence viewers for their services in dividing afence, under the St. R. L. s. 4543, he can recover of the other party the portion adjudged to he paid hy him, without regard to the legality of the division of the fence.
    Assumpsit. Heard on a referee’s report, September Term, 1883, Tart, J., presiding. Judgment for the plaintiff.
    
      Oharles Soule, for the plaintiff.
    
      Geo. A. Ballard, for the defendant.
   The opinion of the court was delivered by

Royce, Ch. J.

This suit was brought to recover the proportion of the fees of certain fence viewers, which they ordered should be paid by the defendant for their services in making a division of fences between the parties. The referee has found that the services were rendered by the fence viewers; that the plaintiff paid them the whole amount charged for such services; and that before the commencement of'this suit he demanded of the- defendant that portion of said expenses that he was ordered to pay.

Counsel in the argument of the case have assumed that the right of recovery was dependent upon the legality of the division made by the fence viewers. But in our judgment that is not the true test. Sec. 3186, R. L., defines the duty of fence viewers, and subjects them to a penalty for a neglect to perform their duties. They are required by sec. 3187, to give notice to the parties interested, and to make an official certificate of their action. It is found, that application'was made to the fence viewers to divide the fence in question ; that they did make a division, and made the required certificate of their action; that the parties were present when the division was made, and no objection was made to their proceeding foi want of notice.

The fence viewers had a vested right to compensation for services so performed. The amount they were entitled to is fixed by sec. 4543, R. L. at $2.00 for each day’s services; and the same section provides that they shall adjudge the proportion of the fees to be paid by the parties interested ; and any of the parties paying the same may recover of each other party the portion so adjudged to be paid by him in an action of assumpsit. The right of the fence viewers to the compensation which the law has provided, was not dependent' upon the legality- of the division made by them. It has never been understood in this State that the rights of ministerial or judicial officers to the compensation, which the law has provided for services rendered, were dependant upon the legality of their acts. The fence viewers adjudged that the proportion of their fees that this suit is brought to recover for, should be paid by the defendant; and the plaintiff having paid the amount to the fence viewers may recover the same in this action.

The judgment is affirmed.  