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The opinion of the Court, Shepley J. taking no part in the decision, not having been present at the argument, was drawn up by

Tenney J.

— To the maintenance of this action several objections have been urged, upon the evidence introduced and relied upon in its support. It is founded upon chapter 44 of the statutes of 1821; and being for a penalty as well as remedial, the statute must be strictly construed. Without con-' sidering all the points presented, we are satisfied, that the proof in two respects has failed of being such as the law requires.

Assuming the fact to be true, that a proper division of the line between the parties existed, and that each was bound to keep up a good and sufficient fence on their respective por-tions, we are to inquire, whether the proceedings on which the plaintiffs’ claim is founded were correct. It is provided in the second section of the chapter referred to, that “ in case either párty shall neglect and refuse to repair or rebuild the fence, which of right he ought to maintain, the aggrieved party may forthwith apply to two or more fence viewers of such town, duly chosen and sworn, to survey the same; and upon their determination, that the fence is insufficient, they shall signify the same in writing to the occupant of the land, and direct him to repair or rebuild the same within six days.” The fence viewers of the town of Rumford, where the parties lived, and where the land was situated, were applied to by the plaintiffs, to view and judge of the sufficiency of the defendant’s fence, which it is contended he was bound to maintain between the parties; they proceeded to examine the same, and the result of their examination was committed to writing and delivered to the defendant. No loss or destruction of this paper was attempted to be shown, and no notice was given to the de*547fendant to produce it at the trial, but parol evidence of the proceedings and the contents of this paper, was allowed against the objection of the defendant’s counsel. The duties of the fence viewers in this particular were important, and in order that their action should be effectual, evidence thereof is required to be in writing. The omission to make and deliver such a writing to the delinquent party, would prevent the other from recovering in an action ; any essential defect in a writing, made and delivered would be equally so ; upon a correct fulfilment of the duty devolving upon these officers, thus indicated, the defendant was holden to make payment for that, for which he did not contract, together with a like sum as a penalty for neglect, and double the usual rate of interest for delay. It would be a violation of a reasonable rule of law to trust to the recollection of witnesses, where evidence of a character, which time could not render uncertain is accessible. This was not a paper, which the plaintiffs could suppose would be immaterial, for the facts which it should contain were indispensable.

Where the party complained of shall neglect to repair or rebuild the fence, according to the direction, within the prescribed time, the same section provides, that it shall be lawful for the complainant to make up, amend or repair the deficiency ; and when the same shall be completed and adjudged suffieient by two or more fence viewers, and the value thereof, together with the fence viewers’ fees ascertained in writing, the complainant shall have a right to demand, &c. and in case of neglect or refusal to make payment thereof for the space of one calendar month after demand, &c. he may sue, &c. The case finds that the fence viewers examined the fence after the plaintiffs had professed to repair it, and that the defendant was present and made trial of its sufficiency. But they did not state to him, and there is no proof that they did state to any one, that they had adjudged it to be sufficient, or had made their judgment known in any manner whatever. They did inform the defendant of the amount of the value of the fence, fts they had appraised it and their own fees for their services, *548but this might have been consistent with an opinion, that the fence was still insufficient. They gave a writing to the plaintiffs expressing the same, and also that he had a right to the sum which was double the amount of the appraisal; but this writing was not exhibited to the defendant, and there is no evidence that he knew of its existence till it was presented by the plaintiffs. It was the right of the defendant to be notified of this examination. Scott v. Dickinson, 15 Pick. 276. And as he was present, it may be presumed that he could make no complaint in this particular. It was equally his privilege to be heard, and afterwards to know distinctly the result of their deliberations, in express terms. The statute cannot be construed to mean, that when they were to judge of the sufficiency of the fence, he was to derive his knowledge of that judgment by inferences from facts accompanying the examination. Nothing short of the opinion of the fence viewers of the entire sufficiency of the fence could in any degree bind him. Upon this solemn adjudication, and the value of the fence and the fence viewers’ fees ascertained in writing, alone can this action be maintained. The paper put into the hands of the plaintiffs, if it had been shown to the defendant, is wanting in this particular. The opinion of the fence viewers, we are to suppose, was formed at the time of the examination, but till expressed, could have no binding effect. It would be unreasonable to hold the defendant to pay a heavy penalty without a clear knowledge that it had been incurred.

Exceptions sustained and new trial granted.

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