
    THE TRUSTEES OF SCHOOL SECTION, MARIETTA, v. HOUGH.
    Certiorari — school section — re-appraisement—error.
    When school lands in Marietta have been leased for ninety-nine years, and part assigned, a re-appraisement of the whole tract, by the acre, is prima facie an appraisement of each acre in the tract, and sufficient foundation upon which to assess the rent against the assignee of part of the tract.
    If in such case the appraisement was not in fact by the acre, or was otherwise illegal, that is matter of defence to be brought forward by the defendant.
    Judgment rendered upon such matter in favor of a defendant without plea or evidence, is erroneous.
    Certiorari. By the return it appeared that by legislative act the town council of Marietta was empowered to divide their school section into small tracts, and give leases for ninety-nine years, renewable forever, reserving a rent of six per cent, per annum upon the appx-aised value, and subjecting the lots so leased to re-appraisement every ten years. The law also provides that in case of assignments by the lessee of part of a leased lot, and notice given thereof to the council, that they shall assess the rent of the part assigned to the assignee, and re-appraise to him in order to collect the rent from *him. The plaintiffs had proceeded upon a lease of two lots, [161 and an assignment of part of each to the defendant as assignee; they showed a re-appraisement of each entire lot, and an assessment upon the defendant of his moiety of the rent under the re-appraisement. Upon this they claimed to recover the amount of such moiety of rent of the defendant, but the court below decided the reappraisement was void, and gave judgment for the defendant — to reverse which this certiorari was sued out.
    
      Vinton, for the defendant in error,
    insisted that the re-appraisement was invalid because it was made of the entire two lots, by the acre, and not of the separate moiety held by the defendant, and therefore that the judgment of the court below was right.
    
      Nye, for the plaintiff in error.
   BY THE COURT.

The appraisement of the whole tract, by the acre, is prima facie an appraisement of each acre. If not so in fact, or the re-appraisement was otherwise illegal, that was matter of defence to be brought forward by the defendant, by plea, or by evidence at the trial. As there was no such defence in the court below, either upon plea or otherwise, it appears to us the conclusion of the court below was erroneous.

The judgment below is reversed, and the cause remanded for future proceedings.  