Ring v. Grout

7 Wend. 341

Opinion

By the Court,

Sutherland, J.

*

I am inclined to think the court below were substantially correct in all the decisions to which the plaintiff excepted.

The variance between the warrant produced and that described in the plea was not, under the circumstances of the case, material. The plea described the warrant as having been issued by the trustees of school district No. I. in the town of Ogden, and directed to the defendant as collector of said district; whereas the district was in fact district No. 1, in Ogden and Parma, and was directed to the defendant as collector of such district. It was proved that there was no other district No. 1 in Ogden, except the district formed from the two towns of Ogden and Parma. The pleadings in this case, it will be recollected, were put in before the justice’s court, and such pleadings are, by the express directions of the statute, Laws of 1824, p. 296, § 13, to be liberally construed without regard to establish forms or technical rules of pleading, and with a view to substantial justice between the parties; such has been the uniform practice in this court. 2 Wendell, 586, 451. If the plea distinctly apprises the opposite party of the real defence intended to be set up, and the court see either from the plea itself, or the accompanying evidence, that he could not have been misled, it will always be held sufficient, „ , , . , » ■ J buen was obviously this case.

It was proved that the individuals whose names were subscribed to the warrant, acted as, and were reputed to be trustees of school district No. 1 in Ogden and Parma, and that the signatures to the warrant were in their hand-writing, and that the defendant was reputed to be, and acted as collector of said district, and that the warrant was delivered to him as such collector. This was prima facie sufficient to establish the official character of the trustees and of the defendant, and of course, the existence of the district, whose officers they claimed to be. Wilcox v. Smith, 5 Wendell, 231, and the cases there cited. The trustees and collectors of school districts have uniformly been held to stand upon the same ground in this respect as other public officers. In the case of a public officer, as a sheriff, justice of the peace, constable, &c. it is sufficient to prove, when he is sued in an action of trespass for an act done in his official character, that he had the general reputation of being such officer, and publicly acted as such without producing his appointment. Potter v. Luther, 3 Johns. R. 431. 4 T. R. 366, opinion of Buller, J. 16 Vin. 114. The testimony of Adams shows that the trustees and collector were in office under the color of an election at least. To rebut this evidence the plaintiff offered to prove that much the largest proportion of the inhabitants said that the individuals who had signed the warrant were not trustees, and that the defendant was not collector. This was properly overruled; it went merely to show that a majority of the inhabitants of the district said that they were not officers de jure, but in no respect disproved the important fact that they were generally reputed to be, and publicly acted as afficers de facto; and it certainly was not competent evidence to show that they were not officers de jure. There is no express statutory provision that no one shall be eligible to the office of collector but a resident of the district, although there are provisions in the act upon this subject, from which the fact and propriety of such residence seem to be implied on the part of the legislature. 1 R. L. 480, § 71, 72. But I am inclined to think that if the electors of the district should confer the appointment upon a non-resident, he would be an officer, de facto, so that his official acts would not make him a trespasser, although, perhaps, he might be ousted from his office, if a proper course of proceeding for that purpose were adopted. There is no force in the remaining exception, that the limits or boundaries of the school district were not sufficiently described in the written order given by the commissioners to Adams, to notify the inhabitants of the district of the time and place of holding the meeting, at which the defendant was elected. 1 R. S. 477, § 55. It is not indispensably necessary to insert the boundaries of the district in the notice ; it will in most cases be sufficiently described by its number, if its limits are well defined and generally known; at all events, an omission like this in the preliminary proceedings cannot render all the acts of the meeting void, so that officers chosen at such meeting will be liable in an action of trespass for any of their official acts.

Judgment affirmed, with double costs.

This case and all the other cases in this term, reported as decided by Mr. Justice Sotherland, were decided at the last May term.