We think the plaintiff is entitled to judgment upon the verdict in his favor. The exceptions taken to the *197ruling of the court of common pleas are not sustained. 1. As to the first, that the assignment of the respective shares of the fence to the several proprietors, in the year 1827, had ceased to be binding, in consequence of the subsequent adjudication of this court as to certain controverted questions concerning the boundaries of the lands of the respective parties, xve think it untenable. The facts in the case raise no question upon the construction to be given to § 5 of c. 19. of the Rev. Sts. providing that such assignment “ shall be binding upon the parties and all succeeding occupants,” or to <§. 15, that in case of such assignment, “ the several owners of such lands, their heirs and assigns forever, shall erect and support such fences,” as applicable to that entire change that would arise from r. subdivision of the lands, and conveyance in small parcels to different individuals; and upon that point we express no opinion.

In the present case, there has been no conveyance, no subdivision of the lands, and every thing as to legal title remains as it did at the ime of the assignment and division of the fence. I is «.rue that there has been a judicial decision as to their .egal title in 1827, which has varied the lines of the parties and affected their occupation. We do not perceive how this can have any legal effect upon the division made in 1827. If there be any provision for correcting the error, the defendant should have availed himself of it. It was the existing assignment at the time the plaintiff applied to the fence viewers to view the fence and adjudge as to its want of repair, and was properly assumed as the division between the parties in the various proceedings by the fence viewers.

2. The return of the fence viewers, adjudging the repairs made by the plaintiff sufficient, was properly held by the presiding judge as conclusive, and not liable to be impeached by evidence tending to establish its insufficiency, and to show an error in judgment on the part of the fence viewers. They are by statute constituted the tribunal to decide that question.

3. It was not competent for the defendant, upon the trial, *198to show, in his defence, that the fence of the plaintiff was insufficient and out of repair at the time of his application to the fence viewers to examine and adjudicate as to the fence of the defendant. The same remedy was open to him as to the plaintiff, and if a proper case existed, he might have availed himself of it concurrently with the other paity, or subsequently, at his election: but for any neglect of the plaintiff to keep in repair his part of the fence, the defendant must resort to the statute provision of making his complaint to the fence viewers.

Exceptions overruled.