The following opinion delivered by JACOB RUSH, President of the Court of Common Pleas of the City and County of Philadelphia, will be found particularly interesting by persons residing in the Country, and who may be exposed to controversies about line fences, and their repairs. The examination of the provisions of the act of Assembly, and of the principles of law on the points involved in the case will be interesting and useful to every Lawyer.

A Certiorari issued out of this Court, directed to Joshua Jones and Elisha Gordon, Esquires, requiring them to transmit certain proceedings had before them under the fence law of 1700, in which John T. Townshend and Israel Walton, Overseers of the poor of Byberry are the complainants, and F. I. the defendant.

Prior to stating the facts on the return, it will be proper to give a brief exposition of the very obscure law upon which the controversy has arisen.

The act of 1700, for the regulation of fences, gives authority to fence viewers in two cases.—1st. Where a person finding a fence actually erected, takes advantage of such existing fence, and makes it a part of a subsequent enclosure. The person making such subsequent enclosure, and deriving a benefit from his neighbours fence, is bound to pay one half the expense of such fence. He is equally bound afterwards himself to keep in repair one half of it, or to pay the expense of repairing it.—Which leads to the 2d. point, and this consists in the power the fence viewers have over fences, either erected or subsequently divided, by agreement between two neighbours. The fence viewers cannot compel a person to join fences with his neighbour, every man having an undoubted right to erect a fence upon his own ground. The authority of the viewers is derived from the consent of the parties expressed or implied. In the case of a person deriving a benefit from making a fence actually existing, a part of the enclosure around his own field, he virtually agrees by his conduct, to make compensation.—In the 2d. case, viz: repairing fences, the parties are supposed to have joined originally in erecting the fence, or by some subsequent contract, to have come under an engagement to keep in repair a moity of the fence.

The viewers being only judges of the value, or of the sufficiency of fences, cannot order a new fence to be erected. In the former case, that is, the value, they are to award compensation; in the latter, they are to direct the party delinquent to repair the fence, and in case of his neglecting it for ten days, then upon application and proof thereof before two Justices, they are to order the persons aggrieved to repair the fence, who shall be reimbursed by the party refusing to repair the fence. When the party aggrieved, has repaired the the fence, in obedience to the order of the two justices, the fence viewers, who by the law are the sole judges of the charge to be borne by the delinquent, must be called upon to fix the amount of compensation, to be reimbursed by the delinquent, for which sum, together with costs, the justices are required to issue a warrant against him to be levied upon his goods and chattels.

If the viewers and the two justices have in all respects conformed to the law, and have kept within their jurisdiction, the facts cannot now be controverted. What are the facts in this case?

The viewers have been legally summoned to view and examine a fence which separates the lands of the complainant's from the land of the defendants. They say they were called to view a partition fence between the said parties, and that on such examination, they found the defendant's part to be deficient, or not lawful, and that they directed him to make a good and sufficient fence on the line within ten days. This order of the viewers is dated 21st January, 1815.

The defendants having neglected to repair the fence for more than ten days, the complainants did according to law, apply to two justices for an order to be issued to him to repair the fence, which order, the said justices, after being satisfied by due proof, that the defendant had neglected to repair the fence, for ten days, did issue on the 26th August, 1815.—To this order the complainants have returned to the justices that they have complied therewith and repaired the fence.

As far as the proceedings have gone, every thing has been done agreeable to the law.

Four exceptions however have been filed by the defendant. The first and second objections may be comprised in one, and present a difficulty of a legal nature, that the complainants represent a corporate body, and are therefore not included in the law that relates to fences.—If this objection were well founded, its operation would be conclusive in favour of the defendant, because a law that does not bind both parties in interest, never ought to be carried into execution against either.—In our opinion, however, the law in the case before us includes corporate bodies, as well as natural persons. The statute 22. H. 8. ch. 5. for the repair of bridges which subjects to taxation, the inhabitants of every Shire, Riding, City, or Town, and for non-payment of which their goods may be seized and sold, has been universally acknowledged and held to include Corporations. 2 inst. 703. comp. 79. Sir T. Jones 167.

The word Inhabitants, says Sir Edward Coke, is the largest word of the kind, and includes every corporation or Body Politic, residing in any County, Riding, City or Town. To these authorities we shall only add, that in 2 Bac. Abr. Wilson's Edition, page 10, it is expressly laid down, that Corporations in the character of owners or occupiers of houses or lands, are subject to the same burden to which individuals are subject, in the same character.

The good sense of these decisions, must strike every body, as their tendency is to place natural and artificial bodies on the same footing.

The third exception filed by the defendant, viz: that the two justices ordered the complainants to put up the fence, without requiring proof that the defendant had not complied with the order of the viewers, is destitute of foundation. The record of the justices show that this exception is founded in mistake.

The fourth exception is, that the viewers had no authority to order the defendant to put up and repair his fence on the line.

It is certain they could not order him to put it up or repair it off the line; and having directed him to repair it on the line, cannot invalidate the order. Viewing the words, on the line, in the most exceptionable light, they can be deemed nothing but surplusage. The substantial drift of the order is, that the defendant shall repair the fence.

With respect to the affidavit of the defendant of the 6th of January, 1816, that he has enclosed completely the burial ground on his own ground, leaving an interval of 10 feet between the line of the burial ground and the fence he has put up, the Court would remark, that generally speaking, a man has a right to put up a fence upon his own land, and as many as he pleases. A man must however so exercise his right, as not to injure those of another. Having once joined fences with his neighbours he cannot, when ordered to repair his share of it, evade the law, by removing it, and placing it altogether upon his own ground. Where the law has once laid its hands upon a man, he must not be allowed to escape from its operation. Nothing can meet the approbation of a Court, that would look like an evasion of the law. A man cannot in one and the same breath, say he is bound and not bound. Whether a person might remove his share of a division fence and place it upon his own ground, prior to an inspection by the fence viewers, is a point not now before the Court. But we are very clearly of opinion, removing a fence after it had been repaired in obedience to the order of two Justices, cannot exempt him from the operation of the law.

There being no error in point of law in the proceedings removed, the judgment of the Court is, they must be confirmed.

[Poulson's Am. daily Adv.