
    The Supervisors of Albany vs. Dorr and others.
    Where moneys received by a county treasurer were feloniously stolen from his office before he had been requested to pay out the same, without any fault or negligence on his part, the supreme court held that no action would lie upon his official bond, and the court for the correction of errors affirmed the judgment, the members being equally divided in opinion.
    The affirmance, however, has no binding force as a precedent, and the case has since, it seems, been overruled. See note (a).
    On error from the supreme court, where judgment was rendered in favor of Dorr, one of the defendants in error, on demurrer. For a statement of the case, and the opinion of the supreme court, see 25 Wend. 440 et seq,
    
    
      J. Tan Burén, for the plaintiffs in error,
    contended that the plea of Dorr admitted a breach of the condition of the bond declared on. The fact that the money was stolen from him does not constitute a payment and accounting, within the meaning of the condition, and is no answer to the action. The county treasurer is a debtor to the county for all public moneys received by him, over and above the amount of his commissions. (1 R. S. 369, §§ 18 to 26; id. 404, §§ 33, 4.) He has entire discretion as to the kind of money to be received, the place where it shall be deposited, and the person who shall take charge of it; and public policy requires that he should be held responsible for losses by theft in all cases.
    
      S. Stevens, for the defendant in error.
    The receipt and disbursement of the moneys of a county by its treasurer, is simply the discharge of a public official duty. (1 R. S. 369, § 20.) The statute does not make the treasurer an insurer of the public moneys while they necessarily remain in his hands; nor is he made an absolute debtor to the county for the amount received. (Id.; and see 1 R. S. 372, §§ 35, 38, 39, 40; id. 166, 7, §§ 1, 5, 8; Jones v. Lewis, 2 Ves. 241; Morely v. Morely, 2 Cas. in 
      
      Ch. 2; Lewin On Trusts, 299.) According to the principles of the common law, an officer concerned in the receipt and disbursement of public moneys is merely a bailee for hire, while they necessarily remain in his hands, and is not answerable for losses which happen without any want of diligence, care, skill or integrity oh his part. (25 Wend. 441, 2, and the cases there cited by Nelson, Ch. J.; Browning v. Hanford, 5 Hill, 588, 591, 2; Story On Bailm. §§ 620, 1.)
   The Chancellor, and Senators Rhoades and Barlow

delivered opinions in favor of affirming the judgment of the supreme court, and Senators Johnson, Lott and Putnam in favor of reversing it. And

On the question being put, “ Shall this judgment be reversed?” the members of the court voted as follows:

For affirmance: The Chancellor, and Senators Backus, Barlow, Bockee, Burnham, Denniston, Faulkner, Jones, Platt, Porter, Rhoades and Scott—12.

For reversal: Senators Bartlit, Chamberlin, Johnson, Lawrence, Lester, Lott, Putnam, Scovil, Smith, Strong, Yarnet and Wright—12.

Judgment affirmed. 
      
      
         Although the effect of this equal division of opinion among the members of the court was to affirm the judgment of the court below, yet the affirmance did not settle the question of law, and has no binding force as a precedent. (Bridge v. Johnson, 5 Wend. 342, 372 to 375, and the cases there cited; Ram. On Legal Judgm. 18.) Indeed the law seems to have been since settled, and properly it is believed, directly the other way, by the case of Muzzy, supervisor, v. Shattuck and others, (1 Denio, 333,) decided by the supreme court in May, 1845. That decision, which appears to be utterly irreconcilable with the one reported in the text, was subsequently reviewed by the court for the correction of errors, and in December, 1846, was unanimously affirmed. A similar decision was made by the supreme, court of the United States, in January, 1845, where the question arose in an action on the official bond of the receiver of public moneys at Chicago. (The United States v. Prescott and others, 3 Howard’s Rep. 578.)
     