Moore v. Ennis.

Per Curiam.-The judgment is affirmed, with costs, and 3

per cent. damages.

S. Major, for the appellant.

Lucian Barbour and J. D. Howland, for the appellee.

MOORE v. ENNIS.

PLEADING. The decision relates to the sufficiency of a pleading, and can not be briefly stated.

APPEAL from the Morgan Circuit Court.

DAVISON, J.-The complaint, in this case, consists of two counts. The first alleges that Moore, who was the plaintiff, sold and delivered to Ennis, one buggy, at the price of 85 dollars, which he received, and, in consideration therefor, promised to pay the plaintiff, on or before the 25th of December, 1861, the said 85 dollars, which, with interest thereon, remains unpaid, &c. The second count is upon a note alleged to be in this form:

"$85.

July 4, 1860.

"On or before the 25th of December, 1861, I promise to pay J. I. Moore, or order, 85 dollars, for value received of him, without any relief from appraisement laws.

ANDERSON ENNIS.".

It is averred, that, in Junuary, 1862, the defendant fraudulently obtained possession of said note; and the defendant, though the plaintiff has demanded the same, has refused to deliver it to him, and still retains possession thereof, &c. Wherefore the plaintiff demands judgment for 100 dollars, &c.

Defendant answered:

1. By a denial.

Moore v. Ennis.

2. Payment of the note.

3. Defendant admits the purchase of the buggy, and that he executed said note therefor. But he alleges, that, soon after he purchased the buggy, he sold it to one Joseph Price, for 95 dollars, for which sum Price executed to him, defendant, his note, payable on or before the 25th of December, 1861; that on said 25th of December, defendant demanded the 95 dollars of Price, which sum, or so much, thereof as was necessary, defendant wanted to pay to the plaintiff on the 85 dollar note; that Price failed to raise the money, but, instead thereof, went and made certain negotiations with the plaintiff, whereby he, Price, obtained possession, and became the owner, of said note for 85 dollars, given by defendant to plaintiff, which note he, Price, on the same day, presented to defendant, in part payment of his, Price's, note, which defendant accepted, and then and there delivered to Price the said note for 95 dollars. Wherefore, defendant says that the note, executed by him to plaintiff, is fully paid, &c.

Plaintiff demurred to the third paragraph of the answer; but the demurrer was overruled, and then he replied by a denial. The Court tried the issues, and found for the defendant, and, having refused a new trial, rendered judgment, &c. The action of the Court, upon the demurrer to the third reply, is assigned for error.

It is argued that that pleading is objectionable, because it does not allege that the plaintiff was paid, or in any way compensated, for his buggy, or his note. In terms there is no such allegation; but it does allege, that "Price made certain negotiations with the plaintiff, whereby he obtained possession, and became the owner of the note." This appears to be sufficient. If Price became the owner of it, the amount stated on its face was, in effect, paid to the plaintiff, and his

Trager, Trustee, &c. v. The State ex rel. Goudie.

title to it became thereby divested. Hence, it was not essential to the validity of the pleading, to allege the means employed by Price to obtain the note, or how much he paid for it. That he became the owner by "certain negotiations with the plaintiff," was sufficiently explicit.

The next assigned error is, that the finding is not sustained by the evidence. There is no such averment, as required by rule 30 of this Court, that "this was all the evidence given in the cause." But we have carefully examined the evidence as it stands on the record, and are of opinion that its weight sustains the finding.

Per Curiam.-The judgment is affirmed, with costs.

W. A. Harrison and W. S. Sherley, for the appellant. Buskirk & Broadwell, and McDonald, Roache & Lewis, for the appellee.

TRAGER, Trustee, &c. v. THE STATE ex rel. GOUDie. COMMON SCHOOLS, LOCATION OF-PRACTICE.-Under the provisions of the common school law of March 11, 1861, the inhabitants of a township, or any portion of them, may petition the trustee for the location of an additional school district, or the erection of a school house, and, if the prayer of their petition is refused by him, they may appeal to the school examiner, and, if he reverse the decision of the trustee, it will be the duty of the latter to grant the prayer of said petition, and, if he still refuse, he may be compelled to do so by mandate. Acts 1861, p. 70, § 9, et seq.; id. p. 75, § 25.

APPEAL from the Franklin Common Pleas.

DAVISON, J.-Joseph Goudie, for himself and others, instituted a proceeding, by mandate, against Jacob Trager, as trus

Trager, Trustee, &c. v. The State ex rel. Goudie.

tee of Brookville township. The affidavit, which is the complaint, upon which the proceeding is founded, alleges substantially these facts:

Goudie, and others, to the number of thirteen, citizens of sections numbered 36, 25 and 34, in Brookville township, Franklin county, having children entitled to the privilege of attending common school, by petition, represented to the trustee of said township, that they had been, for some time past, deprived of the benefit of such school, on account of the great distance, and asked him, amongst other things, to constitute them into a district for school purposes, and to adopt the school house they then held in the corner of Joseph Goudie's field, and to grant them their share of the school funds. The prayer of their petition was refused by A. B. Herndon, the then trustee of the township, and an appeal from his decision was granted by him to the School Examiner of the county, who, having received the appeal, decided that an additional school be located, as prayed for by the petitioners, to which they were to be attached for school purposes, and that in the then next distribution of the school revenue, said school be placed on an equal footing with other schools of the several districts of the township. It is alleged that Herndon, as such trustee, while in office, failed to comply with the decision of the School Examiner, and that Trager, the present trustee, has also refused compliance therewith, &c. The relief sought is, that a writ of mandate issue, requiring Trager, as such trustee, to locate a school, as prayed for by the petitioners, according to the decision of the School Examiner, &c.

To this complaint, the defendant, Trager, appeared and answered:

1. That the proceedings recited in the complaint are without authority of law, and void; that school districts can not be changed, or sites for new school houses located by or on

Trager, Trustee, &c. v. The State ex rel. Goudie.

petition simply, but can only be done by or at a regularly called meeting of the inhabitants of the district, &c.

2. That defendant, and his predecessors in office, have established a sufficient number of schools in said township, for the education and convenience of all the children therein; have built, and otherwise provided, a sufficient number of school houses for the convenience and education of said children, and the location of the school prayed for would be a useless expenditure, &c.

3. The school house already erected in the district is sufficiently commodious and conveniently located for the accommodation of all the children of the district, &c., and there is not a sufficient number of children therein to support two schools, &c.

4. That after the filing of the petition referred to in the complaint, and the decision of the School Examiner, the director of the district, in which said petitioners reside, regularly called a school meeting of the inhabitants therein, at which meeting they, the inhabitants, determined to retain in that district all the territory embraced within its boundaries prior to the decision of the School Examiner; and, further, they, at said meeting, petitioned the trustee, through their director, to disregard the decision of the Examiner, &c.

Plaintiff demurred to the answer. The demurrer was sustained, and final judgment was accordingly given, &c.

The first defence involves the main inquiry in the case. Were the proceedings, recited in the complaint, inoperative and void? If they were not, then it was the duty of the trustee to carry into effect the decision of the School Examiner. An act to provide for a general system of common schools, &c., points out the duties of the trustee. It says: "He shall take charge of the educational affairs of the township, and establish, and conveniently locate, a sufficient number of schools therein, for the education of the children.