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change the site without the consent of the commissioners of common schools of each town within which the district was situated: 1 Rev. Stat. 479, sec. 66; and, as a necessary consequence, I consider the tax voted on the twentieth December, 1828, of thirty dollars, to purchase a site, unauthorized and void. The tax voted on the seventh February, 1829, of three hundrel and sixty-eight dollars, to build a school-house in the district, as declared on its face, was no doubt within the express authority of the district meeting: 1 Rev. Stat. 478, sec. 61; and they had, on the thirteenth October before, voted that they would not repair the old school-house, which appears to have been decayed and unfit for use. But it is plain that this tax was voted for the purpose of building a school-house, not upon the old site, but upon the one directed to be purchased, which might have affected, and no doubt did essentially affect that vote. If the district had been aware that they had no power to pass the resolution changing the site, or to build a school-house thereon, they probably would not have raised any money for that purpose; or if they had voted to raise money to build a schoolhouse, knowing it must be built upon the old site, it might and probably would have affected the amount raised, as the new site was on the public square in a village. We must look beyond the resolution to ascertain whether the inhabitants of the district had the power to pass the resolution to raise the money at the time of the vote; whether they were acting within the power conferred upon them by the statute, and in doing so, we see, to be sure, they had power to raise money to build a school-house, but not to raise money to build on the new site. They might as well have voted to raise money to build one in the next district, or out of the county, as on the new site. The object and use of the money raised must be taken into the account in determining the authority to raise it, and should come within the provisions and intentions of the act. I am inclined therefore to the opinion that the resolution of the seventh February, 1829, was also unauthorized. If either resolution was void, it vitiates the assessment, as both sums voted were included therein.

But admitting the resolutions to raise the money unauthorized, are the trustees liable in an action of trespass for the assessment and warrant to the collector? The statute, 1 Rev. Stat. 481, sec. 75, defines their powers and duties, among others, to call special meetings of the inhabitants of the district, when they shall deem proper; to give notice of special, annual. and

adjourned meetings, if the clerk is absent or incapable to make out a tax list voted by any meeting, etc.; to annex to such list a warrant directed to the collector, to purchase or lease a site for the district school-house as designated by a meeting of the district, to build the same, to employ teachers and pay them; in a word, these officers have almost the entire control and direction of the various interests and concerns of the district, as will appear from an examination of the common school act, and I can not but view them in the light of parties to most of the proceedings of their district, rather than as ministerial officers bound to obey the mandate of a superior. They can put the district in motion as well as be put in motion by it, having the power to call special meetings when they think necessary and proper. In this very case it was probably an omission of their duty that renders the votes of the district nugatory. They were required by the resolution of the sixth of December to call on the school commissioners and request them to locate the site designated therein; and on the twentieth of December the written consent of those of Royalton was obtained, and an application to those of Shelby no doubt would have been equally successful, which would have authorized the proceedings of the district under which the trustees have acted in making the tax list and issuing the warrant. Their powers and duties being so extensive and exclusive in the management of all the affairs of the district, a correspondent vigilance and attention to the rights of the district should be required from them; and I perceive no greater hardship in holding them responsible for the execution of an illegal resolution or vote proceeding from a district meeting, than in holding a party liable for the execution of process issued by a court without authority. They are not bound to carry into effect such illegal resolutions. The resolutions of such meetings are often passed by the procurement of the trustees, and the trustees are generally looked to as the advisers of all measures in which the interest of the district is concerned; they can at any time call a special meeting of the inhabitants to revise and correct any erroneous or illegal step. For these reasons I am of opinion that trespass lies against them in a case like the present. Even if viewed in the character of ministerial officers, I think they would be liable, on the ground that the resolution of the twentieth of December showed on its face that it was passed without authority. It raised money "to purchase a site for a school-house," when the district already had one, and which of course must have

been known to the trustees; and, as before remarked, if the trustees acted without authority in respect to one of the votes or resolutions, the whole proceeding is vitiated and void. For the error of the court, however, in rejecting the proof offered, which led to the erroneous assessment of damages, the judgment must be reversed.

Judgment reversed, with single costs; venire de novo from Niagara common pleas.

JUSTIFICATION OF OFFICERS UNDER PROCESS.-See the note to Savacool v. Boughton, 21 Am. Dec. 109; McCoy v. Curtice, ante, 113, and Reynolds v. Moore, ante, 116, and citations in the notes thereto.

ILLEGAL TAX, ASSESSORS' LIABILITY for taking property to pay: See Stetson v. Kempton, 7 Am. Dec. 145; Ingles v. Bosworth, 16 Id. 419.

MEASURE OF DAMAGES FOR ILLEGAL SALE WHERE OWNER BIDS in the property is the amount of such bid and interest: Baldwin v. Porter, 12 Conn. 485; Clark v. Hallock, 16 Wend. 609; Butler v. Miller, 1 Den. 413; Ford v. Williams, 24 N. Y. 366; Vedder v. Van Buren, 14 Hun, 451; McInroy v. Dyer, 47 Pa. St. 122; S. C., 4 Am. L. Reg. 168; Sprague v. Brown, 40 Wis. 620, all citing Baker v. Freeman. The same principle, it is said, in Fuller v. Townsend, 5 Den. 186, would restrain a vendee in a suit against his vendor for failure of title to personal property, to a recovery only for the amount recovered against him in consequence of such failure. It is held also in Bassett v. Salisbury etc. Co., 28 N. H. 255, on the authority of the principal case and others, that generally it may be shown in mitigation of damages in trover that the property has gone to the use of the owner.

THAT A TAX TO BUILD A SCHOOL-HOUSE on a site to be selected by the trustees is illegal, is held, referring to Baker v. Freeman, as authority, in Benjamin v. Hull, 17 Wend. 439. It is said, however, in Colton v. Beardsley, 38 Barb. 44, that in the principal case the tax was held illegal, because it appeared affirmatively that the house was to be built on a site chosen without the consent of the commissioners. In Finch v. Cleveland, 10 Id. 295, it is held that the tax in question in Baker v. Freeman was adjudged void and not merely voidable, because the district had not jurisdiction to act in the premises in the absence of the consent of the commissioners.

Other decisions in which the principal case is cited are: Eaton v. Calender, 11 Wend. 93, and Forsythe v. Palmer, 14 Pa. St. 98.

BLOOD v. GOODRICH.

[9 WENDELL, 68.]

AUTHORITY TO EXECUTE A SEALED CONTRACT MUST BE UNDER SEAL to bind the principal.

TENANT IN COMMON CAN NOT CONVEY or dispose of lands of his co-tenants without authority under seal, or in any other manner than a stranger might do.

PRINCIPAL'S SUBSEQUENT PAROL ACKNOWLEDGMENT IS INSUFFICIENT to render binding a sealed contract executed in his name, where no authority under seal is produced.

SUBSEQUENT WRITTEN ACKNOWLEDGMENT ACCOMPANIED BY ACTS may be proper evidence in such a case after notice to the adverse party to produce the agent's authority.

PAROL ENLARGEMENT OF THE TIME OF PERFORMANCE OF A WRITTEN CON-
TRACT is valid if the contract itself would be valid if made by parol.
TIME OF PERFORMANCE OF A CONTRACT TO CONVEY LAND can not be ex.
tended by parol.

PARTY ENTITLED TO A DEED MUST DEMAND IT, and if not refused must present himself to receive it, after allowing a reasonable time for its preparation and execution.

POSITIVE REFUSAL TO CONVEY ON THE FIRST DEMAND dispenses with any further demand.

DEMAND ON ONE OF SEVERAL JOINT VENDORS AND HIS REFUSAL to execute the deed, dispense with a demand on the others.

ASSUMPSIT, the declaration containing seven counts, charging the defendants in various forms with the breach of an agreement to convey to the plaintiff certain lands in Ohio in which the defendants were tenants in common, in consideration of a conveyance by the plaintiff to them of certain other lands. Plea, the general issue. The original agreement declared on was dated December 11, 1828, and was signed by the defendant Kingsbury, "for self, Goodrich, and Champion" (the other defendants), and sealed. It provided for an exchange and delivery of the respective conveyances for the lands in question on March 1, 1829. The plaintiff proved the execution of this contract by Kingsbury, and gave evidence of certain admissions by Goodrich and Champion, that they were tenants in common with Kingsbury in the lands in question, and that Kingsbury was selling them for the joint concern. Upon this evidence the plaintiff asked leave to read the agreement of December 11, 1828, to the jury. The defendants objected unless authority under seal to Kingsbury to execute it were produced, but the objection was overruled. The declaration also set out another agreement upon sufficient consideration entered into between the plaintiff and the defendants January 31, 1829, whereby it was agreed that the lands mentioned in the agreement of December 11, to be conveyed by the plaintiff to the defendants, should, instead thereof, be conveyed to one Winsor, or such persons as he should designate, the defendants having agreed to sell the same to Winsor.

The plaintiff offered parol evidence to prove that such an agreement was entered into on that day between the plaintiff and the defendants, Kingsbury and Goodrich, Kingsbury professing to act for himself and also as agent for Champion, and that it was understood at that time that the plaintiff would not

be able to convey part of the land agreed to be conveyed by him until July, 1829, and that the plaintiff fully performed the said agreement on his part. The evidence was objected to on the ground that this parol agreement, being for the conveyance of land, was void by the statute of frauds, and on the further ground that no authority was shown from Champion for this parol alteration of the agreement of December 11, 1828, but the objection was overruled. A demand upon Goodrich for a conveyance of the lands agreed to be conveyed by the defendants to the plaintiff was proved to have been made by Winsor, as the plaintiff's agent, in July, 1829, after the plaintiff's conveyance of his land, pursuant to the second agreement; but the conveyance was refused unless Winsor would give additional security for the purchase price of the land bought by him of the defendants, and conveyed to him by the plaintiff. Evidence was also given of certain acts and letters of Goodrich, after the execution of the agreement of December 11, 1828, showing his recognition of it. A letter written by him to the plaintiff after the suit was commenced, stating that he had drawn a deed for the Ohio lands, which the plaintiff might have if he would call for it, was produced in evidence. The testimony of one Starkweather was also introduced, showing that he had had in his possession a deed from Goodrich and others to the plaintiff for the Ohio lands, and was instructed to deliver it to the plaintiff if satisfactory; but that it was not called for, and he did not know what had become of it. On the part of the defendants there was evidence of an admission by the plaintiff that Kingsbury tendered him a deed of the Ohio lands on March 1, 1829, but that he did not receive it, because he was not ready to convey on his part. Other facts introduced in evidence need not be stated. The circuit judge instructed the jury that the plaintiff was entitled to recover the value of all the land agreed to be conveyed to him, and interest from the time the deed was demanded of Goodrich. Verdict for damages accordingly, and for six cents costs. Motion for a new trial, based on exceptions to the rulings and instructions of the court.

J. A. Spencer and M. T. Reynolds, for the defendants, claimed: 1. That the agreement of December 11, 1828, was not binding on Champion and Goodrich, because it was under seal, and no authority under seal for its execution by Kingsbury was produced: 5 Mass. 40; 7 T. R. 207; 3 Com. L. R. 54; 7 Cow. 453; 1 Wend. 326; 3 Johns. Cas. 180; 5 Binn. 613; 2 Dall. 246;

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