The opinion of the court was delivered by

VOORHEES, J. This suit was instituted in the First District Court of Elizabeth to recover upon a bond dated March 8th, 1910, in the penal sum of four hundred dollars ($400) given by the defendants. Judgment was rendered for the defendants, and comes to this court on appeal.

The state of the case discloses that the bond in suit, after reciting that on the first day of March, 1910, the obligor, Coletta, was convicted by the Summit police court of violation of an ordinance of that city and sentenced to pay a fine of two hundred dollars ($200) or serve, in default of such payment, a term of ninety days in the county jail, and had appealed from such judgment, contains the following condition:

"If the said Alfonso Coletta shall appear before the next Court of Common Pleas, * * * on the first Tuesday in May following, and prosecute this appeal, and stand and abide by the judgment of the said court and pay the said fine and such further costs as may be taxed, or deliver himself for commitment to the said county jail, if the said judgment be affirmed; or in the meantime shall pay the said fine of $200 and costs to the said Summit police court or deliver himself to the said court for commitment in the said county jail for said term of ninety days, then this obligation to be void."

The plaintiff, at the trial, made proof of the bond that the appeal had not been prosecuted in the Common Pleas and had been dismissed, that his fine had not been paid and Coletta had not surrendered himself. The defendant, over objection, was permitted to put in evidence the docket of the

police justice, who tried the case on appeal from which the bond was given. It showed a conviction on March 1st, 1910, a notice of appeal and the acceptance of an appeal bond with one Garafano, as surety. That on March 8th, 1910, the defendant was surrendered by his bondsman who requested to be released from his suretyship. Thereupon the defendant was paroled in custody of his counsel, pending the filing of a new bond, and afterwards the bond now in suit was given and accepted and by the justice transmitted to the county clerk.

In the District Court, the defendants moved for judg ment, alleging that the acceptance of the first bond exhausted the police justice's power and deprived him of the right to accept another bond; that there was no right in the first surety to surrender Coletta in discharge of his bond; that the bond was without consideration, there being no statutory authority for it. The motion prevailed and judgment was entered for the defendants.

Specifications of causes for reversal raise questions involving the propriety of the admission in cvidence of the police justice's docket, of the finding of the District Court; that the taking of the first bond deprived the police justice of jurisdiction to accept any other bond, and that the bond in suit was without consideration and void.

The bond recited the judgment and appeal and was conditioned for its prosecution. The evidence contained in the docket tended to contradict such recitals by showing that this was not the bond given upon the appeal in question, but that some other bond had been given. The rule is that both obligor and surety on a bend are estopped to deny, for the purpose of avoiding liability thereon, any recited fact therein. The evidence thus admitted was therefore clearly illegal.

A police court was established in Summit under "An act relating to and providing for the government of cities of this state containing a population of less than twelve thousand inhabitants," approved March 21st, 1899. Pamph. L., p. 96. Section 78 provides for an appeal in all cases where the penalty exceeds twenty dollars, "to be taken in the same man

ner as an appeal might be had from judgments in courts for the trial of small causes."

This bond was given within the time limited by the Small Cause act, was transmitted to the Court of Common Pleas, and thereby the benefit of the appeal was enjoyed by the convicted defendant.

It was not given for an illegal purpose; it complies substantially with the statute. It was veiuntarily entered into. and must be held binding, although the proceedings anterior to its execution may have been irregular. Ordinary v. Cooley, 1 room 179.

The judgment of the District Court will be reversed and a new trial ordered.

BENEDICT B. ALT ET AL. v. EMMA BUTZ ET AL.

Submitted December 1. 1910-Decided May 19, 1911.

1. The doctrine of practical location regarding boundary lines is equitable in its nature, and applies only where some disagreement or uncertainty exists between adjoining owners as to the true line, which results in their agreement or acquiescence upon a boundary line, which, under the doctrine of estoppel in pais, cannot subsequently be controverted without working a fraud. 2. Where the true boundary line is understood and conceded, and the adjoining owners are not in dispute concerning it. mere permission by one to the other to build up to an existing building considerably over the line is not in legal effect a practical location of the boundary, nor can it. under the statute of frauds, operate as a conveyance of the land in controversy.

On rule to show cause.

Before GUMMERE, CHIEF JUSTICE, end Justices TRENCHARD and MINTURN.

For the plaintiff. Collins & Corbin.

For the defendant, James A. Gordon.

The opinion of the court was delivered by

MINTURN, J. The plaintiff brought ejectment to recover a strip of land along the dividing line separating the property of the plaintiff from that of the defendant. The paper title disclosed the ownership of a part of this strip at least in the plaintiff. The defendant asserted title to it under a claim of adverse possession, and the trial court left it to the jury to determine whether the claim was substantiated by the proof in the case. The jury found against the claim as to a certain portion of the property which they described in their verdict.

The only cause urged for reversal upon this rule is that the trial court took from the jury the consideration of the question of a practical location of the dividing line by the parties, holding that the question should be eliminated from their consideration.

The defendant's witness Malbeck made his survey for the defendant in 1893, and then found that an existing building of the defendant, being an old stable, encroached on the plaintiff's lot. The witness then suggested to Mr. Alt and Mr. Butz that the new building which the latter proposed to erect be placed against the existing building of Alt. This, he says, "was agreed, and everything was lovely," and this situation, it is claimed by defendant, presented evidence of a practical location of the line for the jury to consider.

We do not so consider it, and we think the trial court was correct in its ruling. The testimony does not present a situation at the time of this survey where the actual location of the correct line between the parties was in dispute. There was no contention between the parties upon the subject, for both plaintiff and defendant were aware of the fact that the old building was over the line, and no dispute existed concerning the fact. The consent of the plaintiff that the new building might also be erected across the line did not create an agreement between the parties for the substitution of a new boundary line for the old, so as to convey to the defendant a title to the land so occupied. As an agreement to con

vey lands it militates against the provisions of the statute of frauds. Ivins v. Ackerson, 9 Vroom 220.

While as a consent to a practical location it lacks the essential prerequisite of a disagreement between the parties as to the correct line, or an uncertainty as to the existence of the true location of the dividing line, some or all of which elements are found to be ratio decidendi in the cases where the doctrine has been applied so as to prevent in practical effect the working of a fraud. 16 Cyc. 784.

In legal theory the doctrine of a practical location is equitable in its nature, arising from the principle of estoppel in pais, the fundamental conception of which is the doing of an act by a party in interest, or his acquiescence in the doing of an act by another which would naturally lead to the inference of the existence of a status or the establishment of a condition upon which either party in interest may act to his prejudice if the act be disavowed. It is used to preclude a party from maintaining by evidence that which he had before expressly or tacitly denied; or disproving that which he had before expressly or tacitly admitted, when the other party has acted upon the faith of the admission or denial in such a manner that he will be injured unless the same is held conclusive. Shapley v. Abbott, 42 N. Y. 113.

The doctrine is applied, both in law and in equity, to prevent the commission of an act which in its consequences would work a fraud. St. Paul and D. R. R. v. Blackmar, 44 Minn. 514.

Applied to the doctrine of practical location in the absence of the statutory period of adverse possession regarding boundary lines, it presupposes a dispute or an uncertainty between adjoining owners regarding the true line, and a mutual concession, or acquiescence in a practical location of the line, as a modus vivendi, which the parties in interest cannot thereafter be heard to controvert.

Thus, in Den v. Van Houten, 2 Zab. 61, the doctrine enunciated by Chief Justice Green that where a line is not settled, acquiescence by the parties concerned, without a positive agreement, for a less period than twenty years will fix the