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Willis agt. Taggard.

constituting a defence (Code, $ 149). When the answer contains new matter, the plaintiff may reply, denying it, or he may allege new matter not inconsistent with the complaint, in avoidance of it; or he may demur to it for insufficiency, stating the grounds thereof (Code, § 153). The plaintiff on the present occasion has demurred for insufficiency; and he insists that because the matter of recoupment is not claimed to be a full defence to the complaint, but merely in mitigation, it is bad upon demurrer for that cause.

This presents a new question which I am not aware has been settled by any of the courts.

Under the former rules of pleading it was generally understood that when matter of total or partial defence could not be pleaded it might be given in evidence without plea (Wilmarth vs. Babcock, 2 Hill, 194; Co. Lit. 283, a; 21 Wend. 277). The only exception to this rule that occurs to me is that evidence by way of recoupment, was not admissible unless notice of the defence was given (Barber vs. Rose, 5 Hill, 76). The English practice formerly required no notice, but admitted the evidence in mitigation under the general issue (see per Cowen, J. 5 Hill, 79). Our statute relative to notices with the general issue, required a notice only of such matters as, if pleaded, would be a bar to the action (2 R. S. 352, § 10). The Supreme Court, in Barber vs. Rose, supra, by requiring notice of matter of recoupment, exacted more than the statute had enjoined, and more than the ancient English practice demanded. Nevertheless, the court doubtless had the power to require a notice, and it seems to be necessary to guard against surprise (see Barton vs. Miller, 7 East, 479; 5 Hill, 79; 2 R. S. 199).

The Code, $ 140, abolished all the forms of pleading previously existing, inconsistent therewith. All the former practice, which is consistent with the Code, still remains in force ( 468, 469). As there is now no general issue under which a recoupment can be given in evidence, nor to which a notice can be subjoined, there is no way in which a partial defence can be taken but by answer. It surely was not the intention of the legislature to abolish the partial defence of recoupment. They have not abolished a set off, and the latter frequently falls short

Willis agt. Taggard.

of a full defence (2 R. S. 354, § 18, 22). If every answer which does not set up a full defence, be bad on demurrer, an answer claiming a partial set off can not be sustained. This construction of the Code will lead to consequences which probably were not anticipated. Full effect may, however, be given to the Code, by holding that an answer claiming to set up a full defence, and falling short of it, is demurrable. Such was the former rule of pleading. But if the answer claims no more than the facts which it affirms will justify, it is clearly a defence as far as it goes, though not necessarily a defence to the whole action. An answer, like a plea, sḥould answer all that it professes to answer, and no more (Co. Lit. 303–9; 1 Chitty Pl. 509). The answer, in the present case, does not claim that the matter pleaded is a bar, but merely proposes to recoup, and to give the matter in evidence in initigation of damages. It is not obnoxious to a demurrer, but the plaintiff will be entitled, when there is no other answer, to take judgment for the part of the count which is lett unanswered (1 Story, 303; 1 Saund. 28, n. 3). The fact that there are other answers in this case, which prevent the plaintiff from taking such judgment, does not invalidate the answer in question. It is good as far as it goes; and there does not appear to be any other way, under the Code, that a recoupment can be made available.

It is not improbable that the plaintiff was led to demur by the decision of the Court of Appeals, in Nichols vs. Dusenbury (2 Comst. 283). That action was commenced before the Code, and the pleadings were governed by the former practice. A recoupment under the old system, could not be pleaded in bar. It was matter of evidence under the general issue, provided notice thereof was given (Barber vs. Rose, 5 Hill, 76).

The demurrer is not well taken, and must be overruled; but as the practice is new, the plaintiff is allowed to reply within twenty days; and the costs of the demurrer must abide the event.

The People ex rel. Moore agt. Banfield and Banister.

SUPREME COURT.

The People ex rel. Moore agt. BANFIELD AND BANISTER.

The inhabitants of a school district have no power to appoint and invest a

building committee with authority to advertise, or make a contract for build. ing a school house, or to do any other act binding upon the trustees, without

their consent. The statute prescribes the powers and duties both of the inhabitants and the

trustees. The inhabitants have the power to levy a tax on the taxable inhabitants for the purpose of purchasing or leasing a suitable site for a school house, and for building it, or for hiring or purchasing a school house, and

for furnishing and keeping it in repair, and here their power ends. The trustees are then to purchase or lease the site, build the school house, sc.

Chemung Special Term, April 1852. The relator and the defendants were trustees of school district No. 2, in Erin. The inhabitants of that district, as appears by the relator's statement of the facts, at a regular school meeting held on the 28th of October 1851, resolved to build a school house, and defray the expenses thereof by a tax upon the district; a building committee was appointed by the meeting with power to advertise”. the letting of the job of building the school house to the lowest bidder; that it was let by a portion of the committee with the assent of the others, for $185. At a subsequent meeting of the inhabitants, held on the 8th of December 1851, a resolution in confirmation of the acts of the building committee was passed to sell the building of the house to Joseph Woolever for $185, that being the sum bid by him for building of the same. The relator, as one of the trustees, called upon the defendants to unite with him and as trustees make out a tax list and warrant, for the purpose of raising the funds necessary to pay for building the school house at the price for which it had been let; they declined, and now a mandamus is asked to compel them to do so. The fact that a building committee was appointed by the inhabitants with power to advertise for the letting of the contract for build-, ing the house was denied by the defendants, as was also the statement of the relator, that he requested them to unite with him in making a tax list and warrant. They also denied the

The People ex rel. Moore agt. Banfield and Banister.

introduction and passage of the resolution of the 8th of December 1851, although they admit that such a resolution appears upon the records of the proceedings of the inhabitants of said district, kept by the clerk thereof.

Hart & Van DERLYN for the Motion.

DUNN & PATTERSON, Contra. H. Gray, Justice. Assuming the facts to be in all respects as stated by the relator, they are not sufficient to uphold this motion. The resolution of 28th October 1851, to build a house and raise the money to pay for it by tax, did not specify the amount to be raised. Whether this resolution invested the trustees with authority to contract for building the house, is not now necessary to be considered; if they had the power they did not exercise it, artd hence no data is furnished fixing the ainouut for which a tax could be assessed, unless it has been done by the action of the building committee, or by the inhabitants at their meeting held on the 8th December last.

The statute conferring upon and regulating the powers of the inhabitants, and the powers and duties of trustees of school districts, has clearly defined the powers of the one and the powers and duties of the other. The inhabitants have the power to levy a tax on the taxable inhabitants of the district for the purpose of purchasing or leasing a suitable site for a school house, and for building or hiring or purchasing such school house and keeping the same in repair, and furnishing it with the necessary appendages (Rand. Com. School System, p. 111, 962); this being done, their power in respect to providing a school house is at an end, and that of the trustees begin; having been provided under the power given to the inhabitants with the means, they are to purchase or lease the site designated by them for a school house, and build, hire or purchase one and keep it in repair, and furnish it with the necessary appendages (id. § 103). The inhabitants and trustees are alike dependent upon the statute for all the powers they can legally exercise; no power is given to the inhabitants to invest a building committee with authority to advertise for, or make a contract for building a school house, or to do any other act binding upon the trustees without their assent.

Webb agt. Mott.

If, therefore, there was a building committee who acted in all respecis as the relator has stated, their action was without legal authority, and was in no respect binding upon the trustees; and if the resolution of the 8th of December is as conclusive evidence of its verity as the counsel for the relator claims it to be, it does not strengthen this application; it clearly was not a resolution to levy a tax for the purpose of building a school house, or an amendment of the former resolution proposed and passed to limit the cost of the house, and thus limit the discretion of the trustees in the amount of their expenditure. It was a mere acceptance of Woolever's offer to build the house for $185; or, in other words, a contract with him to build a school house for that sum, so far as an offer and its acceptance could make it so, and nothing

This clearly was not within the power conferred upon them by statute. If this resolution was ever passed by the inhabitants, they mistakenly assumed the exercise of a power not conferred upon them, but confided alone to the trustees. The inotion must be denied with ten dollars costs.

more.

SUPREME COURT.

WEBB agt. Mott.

As under the former practice, so, under the Code," that after a general ap

pearance by the defendant, he can not be heard objecting on account of the irregularity of the process by which the action was commenced.” (See the authorities cited in the case.)

Otsego Special Term, March 1852. Mr. FIELD, of counsel for the defendant, moved to set aside the summons and complaint in this action for irregularity.

G. A. STARKWEATHER, Opposed. CRIPPEN, Justice.—The summons is not in conformity with the provisions of the Code. The complaint which was served on the defendant with the summons, sets up a cause of action

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