Supervisors of Livingston v. White.

it was satisfactory to them. This was sufficient evidence of a delivery. Neither the indorsement of approval, nor the filing of the bond, was necessary to a delivery. They are acts which might be performed subsequently. I am satisfied that the evidence was ample to call for the submission of the question of execution to the jury.

The judgment in favor of the people against John White, jun. in an action for the recovery of the same moneys for which this action was brought, and the imprisonment of the defendant by virtue of an execution on that judgment, are not, I think, any defense to this action It is proved that the bond was conditioned, as required by the statute, for the faithful execution of the duties of the office of treasurer, and the payment according to law of all moneys which should come to the hands of the treasurer, and for rendering a just and true account thereof, "to the board of supervisors, or to the comptroller of this state, when thereunto required." (1 R. S. 863, § 81, 5th ed.) By § 99, (p. 865,)" whenever the condition of the county treasurer's bond shall be forfeited, to the knowledge of the board of supervisors of the county, and whenever such board shall be required to do so by the comptroller, they shall cause such bond to be put in suit." Sections 47 and 48, (p. 926, same ed.) provide for a statement by the comptroller, of the accounts of the county treasurer on the first day of May, annually; and that if any county treasurer shall refuse or neglect to pay the balance of any state tax unpaid by him, the comptroller shall deliver a copy of such county treasurer's account to the attorney general, "who shall prosecute forthwith; and the state shall be entitled to recover the balance due with interest," &c. By § 49, " the comptroller may also, in his discretion, direct the board of supervisors of the proper county to institute one or more suits on the bond of such treasurer and his sureties." All losses sustained by the default of the treasurer of any county are chargeable to such county, (§ 61, p. 928.) These provisions appear to contemplate a double direct liability by the

Supervisors of Livingston v. White.

county treasurer; one by him individually to the state, so far as the state tax is concerned; and the other by him, in connection with his sureties, to the county, on his bond, embracing the entire duties of the treasurer; upon each of which liabilities an action may be maintained. It is the duty of the board of supervisors, for the protection and security of the interests of the county, to cause the bond to be put in suit upon knowledge of a forfeiture; and it is the duty of the attorney general, in regard to the interests of the state, to prosecute the county treasurer forthwith upon receiving from the comptroller a copy of such county treasurer's account, showing a balance of a state tax unpaid by him. These are separate and distinct causes of action, although the object may be the recovery of the same money; the former arising upon the bond, and the latter upon the statute. Actions to enforce them may proceed concurrently until payment is obtained; neither, before payment, constituting any defense to the other. The imprisonment of the treasurer at the suit of the state does not affect, in any way, the action at the suit of the county. Such an imprisonment is not a satisfaction of the liability which is the subject of that action.

The defendants were precluded by their stipulation, admitting the balance due from the county treasurer, from controverting that fact; hence extracts from a report of a committee of the board of supervisors on the treasurer's accounts previous to the stipulation, showing a balance due the treasurer, which report was accepted by the board, but does not appear to have been further acted upon, was inadmissible as evidence of payment of the moneys in question. And there is no force in the position that the mere fact of the report of the committee, and its acceptance by the board of supervisors, is an estoppel in pais in respect to the sureties, preventing the board from asserting any claim against them contrary to the report. It does not appear that the sureties have

Pierson v. Mosher.

done, or omitted, or suffered, any thing by reason of those proceedings.

The charge of the court to the jury was correct, for reasons already stated; and the court did not err in refusing to charge that there was not sufficient evidence to warrant their finding that John White or Harrison executed the bond; or that the bond was delivered. The only evidence on that subject, additional to what has been referred to, is the testimony of Harrison and John White, in substance that they signed the bond of John White, jun. as treasurer, for his first term, but did not to their recollection sign any bond for him as treasurer subsequently. The evidence is of a negative character, the force of which it belonged to the jury to consider, in connection with the other evidence on the question of execution and delivery. The judgment must be affirmed.

Judgment affirmed.

[MONROE GENERAL TERM, September 5, 1859. T. R. Strong, Smith and Johnson, Justices.]

PIERSON VS. SAMUEL MOSHER and ARVID MOSHER.

Where a division fence between adjoining owners has been in existence, and acquiesced in by the parties as on their dividing line, for more than forty years, the law will determine the line of such fence to be the true line between the parties. And this, notwithstanding the fence was originally put up under an agreement that it was to be altered at some future time, in case it should be found, upon actual survey, not to be on the true line.

In such cases, it is the long acquiescence which renders the practical location conclusive.

HIS action was commenced in this court to recover possesHis action

sion of a strip of land. It was tried at the Cayuga circuit, before Judge DAVIES and a jury, in October, 1858. The plaintiff and defendants own lands adjoining each other. In April, 1815, John Owen, under whose title the plaintiff claims, VOL. XXX.

6

Pierson v. Mosher.

purchased of Humphrey Sharpsteen the west half of fifty acres of land, then in the township of Milton, now in the town of Genoa. The defendant Samuel Mosher, at the same time, purchased of the same grantor the east half of the same fifty acres. In the same month, Owen and Mosher divided the land between them, and fixed the place for the division fènce. Each occupied up to that line until the fence was removed by the defendants in 1857. This was the plaintiff's case. The defendants proved that at the time the fifty acres was divided between Mosher and Owen, in 1815, it was divided as follows: "They cut a rod pole and measured off the land, and built the fence through, north and south, upon the line between them, as nigh as they could come at it; and at the same time they agreed that whenever they could get a surveyor they would have the land run out, and put the fence on the true line, as the surveyor should run it; that when they measured through they could not tell where the east line of the fifty acres was, and they guessed at it." The defendants also offered evidence tending to prove that those occupying the premises now owned by the plaintiff were from time to time told, by those owning the other half, that the line was unsettled, and that Pierson, the plaintiff, still got more than one half the fifty acres. The court charged the jury that if they were satisfied, from the testimony, that the line fence was established in 1815, and had been maintained down to 1857, the defendants were precluded, upon the principles of public policy, from setting up or insisting upon a line in opposition to one which had been steadily adhered to upon both sides for more than forty years. That if necessary, in order to establish this line, the law would presume a conveyance in accordance with it. This long acquiescence was proof of so conclusive a character that the defendants were precluded from offering any evidence to the contrary. That parol testimony to change a boundary line, after so long an acquiescence in its location, would counteract the beneficial effects of the statute of frauds, and render the title to real property alarmingly insecure. To which propositions

Pierson v. Mosher.

the counsel for the defendants excepted. The court further submitted to the jury the following questions, to wit: Was the line fence, put up in 1815, on the division of the fifty acre lot, kept up as thus erected, for more than forty years, and for that time was it acquiesced in by Mosher? And also charged the jury that if they found said question in the affirmative, they would find a verdict for the plaintiff. To which direction and charge the counsel for the defendants also excepted; and the counsel for the defendants requested the court to charge the jury as follows: 1st. That if they (the jury) should find, from the evidence, that the fence was originally put up under an agreement that it was to be altered at some future time, in case it should be found, upon actual survey, not to be upon the true line, then there was no adverse possession, as against Mosher, until such actual survey made, or notice given to him that the other party claimed the fence to be on the true line. But the court refused so to charge; and to that refusal the counsel for the defendants excepted. The said counsel further requested the court to charge said jury: 2d. That in order to evince acquiescence on the part of the defendant Mosher, there must be proof of some affirmative act in that respect on the part of Mosher. But the court refused so to charge; and to such refusal the counsel for the defendants also excepted.

The jury found a verdict in favor of the plaintiff; and the defendants, upon exceptions ordered to be heard in the first. instance at a general term, moved for a new trial.

Wright & Pomeroy, for the appellants.

N. T. Stephens, for the plaintiff.

By the Court, T. R. STRONG, J. From the manner in which this case was submitted to the jury by the charge, the verdict must be deemed to establish that the line fence built in 1815, on the division of the fifty acre lot, was kept up and acquiesced in by Mosher, the owner of the east half, for more than