TITLE 69. ENCLOSURES. 1798. IN FORCE THREE MONTHS AFTER ITS PASSAGE. AN ACT for preventing trespasses and declaring what shall be deemed a lawful enclosure: Approved January 16, 1798.-2 Litt. 27. a lawful fence. SEC. 1. Be it enacted by the General Assembly, That if any horses, What shall be mares, cattle, hogs, sheep or goats, shall break into any grounds, being enclosed with a strong and sound fence, five feet high, and so close that the beasts breaking into the same, could not creep through; or with an hedge two feet high, upon a ditch three feet deep and three feet broad, or instead of such hedge, a rail fence of two feet and a half high, the hedge, or fences, being so close that none of the creatures aforesaid can creep through, which shall be counted a lawful fence, the owners of such horses, mares, cattle, hogs, sheep or goats, or any one of them, shall, for the first trespass so committed, make reparation to the party injured, for the true value of the damages he shall sustain, and for every trespass afterwards, double beasts breaking damages to be recovered with costs, in any court of record; provided that for a third offence, for any one of the beasts aforesaid, breaking into such enclosures, it shall be at the election of the party injured, to sue for his damages or to kill and destroy the beasts so trespassing, without being answerable for the same. SEC. 2. And that the condition of the fence at the time of the trespass committed, may be proved to a jury upon trial: Be it enacted, That upon complaint made by the party injured, before any justice of the peace for that county wherein such trespass shall be, such justice is hereby empowered and required to issue his order without delay, to three honest house keepers of the neighborhood, no ways related to the party injured, nor interested concerning the trespass, reciting the complaint, and requiring them to view the fence where the trespass is complained of, and to take memorandums of the same, and their testimony in such case shall be good evidence to the jury as touching the lawfulness of the fence. Penalty on the owners of such enclosures Where the party injured may sue or destroy beasts. How the fence shall be review ed. Penalty for SEC. 3. If any person damnified for want of such sufficient fence, shall hurt, wound, lame, kill, or destroy; or cause to be hurt, wound- hurting beasts in grounds not ed, lamed, killed, or destroyed, by shooting, hunting with dogs, or lawfully fenced otherwise, any of the kind or breed of horses, cattle, sheep, goats or hogs, he, she or they so offending, shall pay and satisfy to the owner of the creatures so hurt, wounded, lamed, killed, or destroyed, double damages with costs, recoverable as aforesaid. (a) TITLE 70. ENGLISH STATUTES AND REPORTS. Common law of England, and general statutes in aid thereof prior to 4 James I. in force. continued in 1776. AN ORDINANCE to enable the present Magistrates and Officers to continue the SEC. 6. And be it further ordained, That the common law of England, all statutes or acts of parliament made in aid of the common law prior to the fourth year of the reign of king James the first, and which are of a general nature, not local to that kingdom, together with the several acts of the general assembly of this colony now in force, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the legislative power of this colony. 1799. Constitution of Kentucky, Article vi. SEC. 8. All laws which on the first day of June one thousand sevCertain laws en hundred and ninety-two were in force in the state of Virginia, and which are of a general nature, and not local to that state, and repugnant to this constitution, nor to the laws which have been enacted by the legislature of this commonwealth, shall be in force force. (a) If in an action under the above statute him to druble damages, he may still recover for for damage to a beast, inflicted by the defendant the trespass at common law.-Stewart v. Jewell, within his insufficient enclosures, the plaintiff fail 7 Mon. 111. to prove a case within the act, so as to entitle within this state, until they shall be altered or repealed by the General Assembly. [It is by virtue of the above ordinance of the Virginia Legislature, and the above section of the constitution that the common law and certain English Statutes are in force in Kentucky. See Hunt, &c. v. Warwick's heirs, Har. 62.] 1808. IN FORCE FROM ITS PASSAGE. AN ACT prohibiting the reading of certain Reports in this Commonwealth: Approved February 12, 1808.-3 Litt. 457. Be it enacted by the General Assembly, That all reports and books containing adjudged cases in the kingdom of Great Britain, which decisions have taken place since the 4th day of July 1776, shall not be read nor considered as authority in any of the courts of this Commonwealth, any usage or custom to the contrary notwithstanding. (a) TITLE 71. ENTERTAINMENT AND STORAGE. 1663. IN FORCE FROM ITS PASSAGE. AN ACT concerning the Entertainment of Strangers.-2 Litt. 582. WHEREAS it is frequent with divers inhabitants of this country to entertain strangers into their houses, without making any agreement with the party what he shall pay for his accommodation, which, if the party live, causeth many litigious suits, and if the stranger die, (a) In the case of Hickman v. Boffman, the counsel offered to read a post revolutionary decision from 3 East. he was stopped by the court, who remarked, "If the book is not to have credit as law, it cannot have credit for what the evidences of the law contain." The legislature seem to have intended, entirely to prohibit the use of these books in court; and thus to cut off the importation of them. We have no doubt Preamble, the legislature had the power to pass the law in question. In the case of Gallatin v. Bradford, the court refused to receive a citation to such decisions.-Hickman v. Boffman, Har. 365. No recent decision has been had on this statute, but the court of appeals within the last few years, frequently quote and allude to post-revolutionary cases in their decisions. No charge to be made for diet or storage with out a positive agreement. lays a gap open to many avaricious persons to ruin the estate of the party deceased: For remedy whereof, for the future, 2. Be it enacted, That no person, not making a positive agreement with any one he shall entertain into his house for diet or storage, shall recover any thing against any one so entertained, or against his estate, but that every one shall be reputed to entertain those of courtesy with whom they make not a certain agreement.(a) AN ACT to reduce into one, the several acts or parts of acts concerning sheriffs: Committed to peace or judge may issue escape warrants to different counties, and how. SEC. 33. If any person committed to jail shall thence escape, If person on affidavit or proof thereof by the sheriff or jailer, any justice of peace, if the escape were from a county jail, or if from any public jail, any judge of the court by whose authority he was committed, shall and may issue as many warrants as are thought necessary, under his hand and seal, directed to all sheriffs and constables in the commonwealth, reciting the cause of imprisonment, and the time of escape, and commanding every of them in their respective counties and precincts, to retake such prisoner and convey and commit him to the jail of the county wherein such retaking shall be, there to remain until discharged by due course of law; which warrant, every sheriff or constable into whose hands the same shall come, is hereby required to obey; and on the commitment of every such prisoner so retaken, the sheriff or jailor to whom he is committed, shall give a receipt for the body, and shall make return thereof upon the warrant to the court by whose authority the prisoner was committed; and in case the prisoner was charged in execution, the Proceedings thereon. (a) The above act does not require, either by its letter or spirit, that there should be a special agreement to pay a certain sum, or in any given mode. It only requires that there shall be a positive or express contract to pay, and an agree ment to pay what the board may be worth, or what is customary, would be as much a positive or express contract, as it would be if a particular sum should be stipulated.-Royal's Adm'x. &c. v. Bryan, 1 J.J. Mar. 434. said sheriff or jailer shall keep him in custody without bail or main prise, until he shall have satisfied the debt, or be otherwise discharged by due course of law, if the prisoner shall have been committed by breach of the peace, or behaviour, or shall have escaped before it was determined whether he ought to be tried in the district court for some crime he had been charged with, or after it was determined that he might be tried for such crime in the court of quarter sessions, the sheriff to whom he shall be committed after he was retaken, shall cause him to be removed to the jail from whence he escaped: if he escaped after it was determined that he ought to be tried in the district court, charged with, or convicted of any crime, or escaped from the public jail, then such sheriffs shall cause him to be removed to the public jail. No judgment shall be entered against a sheriff or other officer in any suit to be brought for, or by reason of the escape of debtors in his custody, unless the jury who tried the issue shall expressly find that the prisoner escaped with the consent or through the negligence of such sheriff, his deputy, or other officer, that he might have been retaken, but that the sheriff or other officer neglected to make immedate pursuit. In case of such escape, neither with the consent nor through the negligence of the sheriff, the party at whose suit the prisoner was committed, may by action on the case recover damages against any person or persons by whose aid in any manner he escaped: any person furnishing a prisoner with instruments or arms to facilitate his escape, shall be deemed guilty of a misdemeanor, although no escape shall actually have happened. When the sheriff of any county shall have cause to suspect that any person committed to jail for treason, felony, or other capital crime, will attempt to escape, or that others will endeavor to rescue him, such sheriff is empowered and required to impress a sufficient guard for securing such prisoner so long as he shall continue in prison; and the expense of such guard shall be levied by the court of the county, and repaid by the public. 1798. Sheriff, &c. not liable for escapes, unless the jury find it to be through negligence, &c. Persons aid ing in the escape liable to the party in damages. Aiding pris oner to escape, a misdemeanor Guards to secure prisoner. How paid. IN FORCE FROM THE FIRST OF MARCH. AN ACT declaring the law concerning the escape of Debtors and other prisoners: Where per mesne process, escape, a justice of the peace may issue es SEC. 1. For the more effectual re-taking and securing prisoners sons committed who escape out of prison, Be it enacted, That if any person commit- in execution or ted, rendered or charged in custody, in execution, or upon mesne process, to any county prison, or to the jail of any district, shall thence escape, it shall and may be lawful for any justice of the peace, in the county where such prisoner was in custody, upon oath of such escape before him made, by the sheriff, under-sheriff, jailer, cape warrants, directed to all sheriffs and constables, &c. |