EZRA GOODRICH, Plaintiff in Error, vs. COMPOUND SCHOOL DISTRICT, No. 5, of the Towns of Milton and Fulton, Defendant in Error, 2 Wis. 102

By the Court, Cbawfobd, J. This was an action of trespass on the case, commenced before a justice of the peace of Hock county, and removed to the County Court of that county by certiorari. The judgment rendered by the justice against the plaintiff in error (who was defendant in the action) was affirmed by the County Court. It appears that the plaintiff in the case filed a declaration in writing in the justice’s court, to which the defendant pleaded the general issue and two special pleas.

One of these latter denies the existence of any such corporation as “ Compound School District, Ho. 5, of the towns of Milton and Fulton, in Kock county,” and concludes with a verification. The other plea sets forth that “said James L. Quirk, at the time when the said James M. Goodrich had said tax warrant in his possession,-for the purpose of collecting said tax, had large amounts of personal property in said town of Milton, which the said Goodrich might and could have levied upon and sold to satisfy said tax, and which was often pointed out to him, and he required to levy thereon,” <fcc.

The plaintiff took issue on the first plea, replied to the second, and demurred to the last one. This demurrer was overruled, and a trial had upon the issue joined on the first and second plea. We are not disposed to apply strict technical rules to tlie pleadings in justice’s courts ; but whenever the parties resort to written pleadings, and seek to avail themselves of the advantages'to be derived from such a mode of practice, we cannot overlook the want substantial averments. 3 Wend. 75.

This action is brought by a domestic corporation, and its existence is put in issue by the second plea and replication thereto. The fifth

section of

chapter one hundred and thirteen of the Revised Statutes, provides as follows: “ In suits brought by a corporation created by or under any law of this State, it shall not be necessary to prove on the trial of the cause the existence of such corporation, unless the defendant shall h&ve pleaded in abatement, or given notice under his plea to the action, that the plaintiffs are not a corporation, and annex thereto an affidavit of the t/ruth of such plea or notice.” This

section prescribes the manner of pleading, and the defendant in this case seems to have overlooked it. Indeed, under the well known principle of pleading, independent of the statute, the second plea would be improperly pleaded after the general issue. It is a plea to the disability of the plaintiff, and ought to be relied' upon in the first instance. Whenever a plea to the merits is interposed, that which is matter in abatement is deemed waived. 1 Chitty's Pl. 441; Burnham vs. Webster, 5 Mass. 266; Pattee vs. Harrington, 11 Pick. 221; Christian Society vs. Macomber, 3 Met. 235; Palmer vs.

Evertson, 2 Cow. 417; Palmer vs. Green, 1 John. Cases, 101. The only change made by the statute, is that this matter in abatement may be set forth in a notice under a plea to the action, accompanied by an affidavit of the truth, of such matter in abatement. It is then, that the issue formed on the second plea was immaterial, because there was no affidavit of the truth of that plea, as required by the statute, and in cage wag unnecessaiy to prove the existence of the corporation. But the demurrer fled by the plaintiff to the defendant’s third plea raises the question which will dispose of this case.

We have no doubt that this plea is bad ; but upon looking into the declaration, we are satisfied that it presents an incurable defect, which is reached by the demurrer. It sets forth that “the acting and lawful derla of Compound School District No. 5, in Milton and Fulton, in said county, did assess a tax in favor of said district against one James L. Quirk,” &c. It is for the neglect to insert this particular tax in a subsequent assessment roll, that this action is brought. The eleventh

section of

chapter nineteen of the Revised Statutes vests the power to vote or assess taxes for school purposes, not in the cler7c, but in the inhabitants of the school district qualified by law to vote at a school district meeting. Now it is undeniable, that the tax stated in the declaration, if assessed by the cleric, as is set forth, was not a legal tax ; and in this view of the case, the defendant below has merely refused or neglected to insert in the assessment roll issued by him, this tax, which at a previous time had been illegally assessed.

In so refusing, he violated no duty, and the plaintiff was thereby deprived of no legal right. It was incumbent on the plaintiff to show in his declaration that this tax had been imposed according to law,, in order to fix the liability of the defendant for á neglect or refusal to perform his official duty, whereby an injury resulted to .the plaintiff. This has not been done, and the County Court ought to have reversed the judgment of the justice of the peace. It is unnecessary to look into the otner errors assigned.' The judgment of the County Court is reversed. - •