The opinion of the Court was afterwards drawn up by
Shaw C. J.The Court are strongly inclined to the opinion, that if the land of Dickinson the defendant, lay in the common field de facto, and had done so for a* series of years, he taking the benefits and bearing the burdens of a proprietor in such common field, he could not be excluded by a vote of the proprietors ; and then by force of the statute for regulating common fields, (St. 1-35, c. 53,) the proprietors, in their corporate capacity, or as tenants in common, and not the individual freeholder, holding a parcel of such common field in severalty, were to be considered the adjoining proprietors against the plaintiff’s land, liable to the duty of making and supporting the partition fence between the plaintiff ana the common field. Any other construction would seem to subject the proprietors of lots, in a common field, to unequal burdens and conflicting duties.
But we have not decided the case upon this ground, because *278we think there is another exception to the proceedings ol the fence viewers, which is conclusive. The St. 1785, c. 52, § 2, directs, that where a proprietor, on notice, refuses to make his share of a. partition fence, the party aggrieved may apply to two fence viewers,, to divide the fence and fix the time within which it shall be made, and if the delinquent propnetor fails to make his share of the fence within the time ordered, the party aggrieved may make or repair it at his own expense. It then proceeds to enact, that when the same shall be completed and adjudged sufficient by two or more of the fence viewers, and the value thereof, together with the fence viewers’ fees, ascertained in writing, the complainant shall have a right to receive double the amount, and if not paid in one calendar month, after demand, shall have an action therefor with interest at one per cent, per month on this double amount. It is found, in the present case, that such an adjudication was made, but it is found that no notice of the time and place of assessing this amount or valuation, was given t< the defendant. The statute does not in terms require such a notice, but we think it does by reasonable and necessary implication. As a general rule and principle of justice, whenever persons are appointed to arbitrate and adjudicate upon the rights of others, some notice is to be given, to enable each party to state his claims and views, and adduce pertinent and proper proofs. And there seems to be a peculiar propriety in adhering to this rule, where the full amount of an actual indemnity is to be doubled by way of penalty. Where it is intended by the legislature, that referees, arbitrators, commissioners or other like bodies, appointed to pass judgment upon the rights of others, shall have power to proceed ex parte, such an intent should be manifested in express terms, or by necessary implication. It was suggested in argument, that this was analogous to the assessment of damages, after a default, which may" be done without notice to the defendant. But the analogy does not hold. A defendant is summoned into court, as well to answer to the cause of action, as to the assessment of damages, and he has an opportunity to do so unless he voluntarily waives it. As no such notice was given, and no opportunity afforded to the defendant, to at *279tend th.s assessment of tbe cost and expense of the fence, vve think that he was not bound by it, and that this action cannot be maintained.