
    Peter H. Cole and Silas A. Drake vs. Absalom Harman, President, &c.
    H., as president of the board of trustees of a school section, sued C. & D., in assumpsit, on four promissory notes ; the defendants pleaded the general issue, and it was agreed that a plea should be considered as filed, denying that H. or M. C., of whom he was the successor in office, was, at the time of bringing the suit, or at any other time, legal trustee of said school section ; neither plea was sworn to. On the trial, the plaintiff read the notes sued on, proved their consideration, and rested his case; the defendants then offered to prove that the commissioners who made the lease, which was the consideration of the notes, and took the notes, never qualified themselves to act, by giving bond and security, and by taking the oath required by law, which evidence, being objected to, was excluded by the court: Held, that the defendants could not, under the state of pleadings, question the character in which the plaintiif sued, nor whether he had properly qualified to act in his fiduciary capacity, and that the evidence offered, was, therefore, properly excluded.
    If an irregularity be committed in leasing school lands, and the lessee, knowing such irregularity, and without any assurance or fraud on the part of the lessors, chooses to give his note, and take the risk, the fault is his own, and he can get no relief from his bargain.
    When it is desired by a majority of the heads of families residing in the township, the trustees are authorized to lease the school section for ninety-nine years, to the highest bidder, on giving six weeks notice.in a newspaper; but they may lease it for a shorter term, on thirty days notice.
    Therefore, in an action, by the president of the board of trustees of a school section, on a note given for a lease of school lands, without showing for what term the lands were leased, evidence that the lease was made on thirty days notice, is not pertinent, and may be excluded.
    If a declaration, containing a good cause of action, states, defectively, the title of the plaintiff, such defect will be cured by the verdict of a jury, and it will then be too late to raise the objection.
    Where the parties, for convenience, agree to consider a plea in short, as filed, the issue to it may be of the same character.
    After a verdict and judgment, one of the defendants, in support of a motion for a new trial, made an affidavit, that the notes sued on were given by himself, as principal, and his co-defendant, as surety, for the lease of a sixteenth section, made to him by the school commissioners; that there was no writing passed between them, at the time of making the lease, or since, except the notes sued on ; that he had no means of enforcing the lease, and had derived no benefit from it; that if he had been present at the trial, he could have made these facts appear; and the reason why he was not present, was, that his counsel informed him, on the day before the trial, that the state docket would be taken up the next morning, (the court having said so,) and the trial would not come on until late in the day, if at all, that he reached the court house the next morning before eleven o’clock, and the jury were just about to retire to consider of their verdict in his case : Held, that the affidavit was wholly insufficient to authorize a new trial, both in regard to the excuse for the absence of the defendant, and the facts which he states, would have been established if he had been present.
    ERROR from the circuit court of Kemper county; Hon. Hend-ley S. Bennett, judge.
    This was an action of assumpsit brought to the April term, 1843, of the circuit court of Kemper county, by Absalom Har-man, president of the board of commissioners, &c., and successor of Meshach Carter, late president, &c., against Peter H. Cole and Silas A. Drake. The declaration was founded on four promissory notes, for the sum of four hundred and thirty-one dollars each, all drawn by the defendants, in favor of Me-shach Carter, president of the board of commissioners for the sixteenth section, in township eleven, range fourteen, east, or his successors in office, all dated the sixth day of January, 1838, and payable respectively at one, two, three and four years, after date. • At the return term, the defendants pleaded the general issue, and also that neither Absalom Harman, nor Meshach Carter, was, at the time of bringing this suit, or at any other time, legal trustee of the said sixteenth section of township eleven, of range fourteen, east. Both pleas were, by consent, filed in short, neither being sworn to, and the issue was also joined'in short, by consent. On the 29th day of October, 1844, the cause was tried, and verdict and judgment rendered in favor of the plaintiff, for the sum of twenty-one hundred and six dollars and sixteen cents. During the trial, the defendant filed a bill of exceptions, which discloses the following facts, to wit: That the plaintiff, on the trial, read to the jury the notes sued on, upon each of which was entered a credit of forty dollars, and proved that the notes were given for a lease of a part of the section named in the notes, and that Cole went into possession of the land after the lease was made, and here rested his case.
    The defendants then offered witnesses to prove that the commissioners who made the lease, and took the notes, never qualified themselves to act in the matter, by giving bond and security, and taking the oath required by law; that only four persons acted as commissioners, and they, without having given bond and security, and without having taken any oath ; that the lease was made after an advertisement of only thirty days. But the court would not permit the evidence offered, to go to the jury; to which the defendants excepted. After the judgment was rendered, the defendants made a motion for a new trial, based upon an affidavit of Peter H. Cole, stating that he was principal in the notes sued on, and Drake merely surety for him; that they were given for the lease of a part of the sixteenth section, in Kemper county, made to him by the then school commissioners thereof; that there was no writing passed between them and himself, at the time the lease was made, or since, except the notes sued on, that if he had been present at the trial, he could have made these facts appear, by informing his counsel what questions to propound, and by introducing evidence which did not go to the jury ; that he has never been benefited by the lease, and has no means of enforcing its execution, there being no record, whatever, preserved of the transaction. The reason why he was not present at the trial, was, that his counsel, the day before, informed him that the state docket would be taken up next morning, (the court having said so,) and that the trial would not come on until late in the day, if at all; that he reached court before eleven o’clock the next morning, when the argument made to the jury had just been concluded; and that he believed he could make these facts appear at the next term, if a new trial should be granted to him.
    The motion for a new trial being overruled, the defendants brought the case to this court, by a writ of error.
    
      
      William G. Thompson, for plaintiffs in error.
    The declaration shows no cause of action. The plaintiff must state so much as is necessary to show that he has a right to sue in the particular action; The notes are payable to “ Me-shach Carter, president of the board of commissioners for the sixteenth section, in township eleven, range fourteen, east, or his successors in office.” The plaintiff can have no right .to sue- in this action, unless he be successor in office to Meshach Carter, as “ president of the board of commissioners for the sixteenth section, in township eleven, range fourteen, east.” He states no such fact in his declaration ; and thereby, fails to show that he has a right to sue in this action. He states merely, that he is “ president of the board of commissioners, &c., and successor of Meshach Carter, late president, &c.” This statement may be true, and yet the plaintiff have no right to sue in this action. His right to sue cannot rest upon presumption. No rule in pleading is better established than this, that the plaintiff must state in^his declaration, positively and particularly, every fact necessary to give him a right to the action.
    The plea of the general issue may be said to admit the character in which the plaintiff sues. The statute on that subject cannot be construed to mean anything more, than that this plea admits the character of the plaintiff as it is stated in the declaration.
    The promise of the defendants below, was, in the alternative, to pay the amounts of the notes to Meshach Carter, or his successors in office. The plaintiff states, that they have not paid him. This is not sufficient; it is no averment of a breach of their contract. And, clearly, without such averment, the plaintiff cannot recover.
    
      William Thompson, on the same side.
    
      A. C. Baine, for defendant in error.
    1. The first view of this case shows that the defendants below relied entirely upon the fact that the parties were not commissioners, and therefore not authorized to sue. The proof therefore on this- subject was very properly excluded by the judge. For the plea of the general issue, admitted the parties and their right and character in the suit, as has been so repeatedly decided, that it is unnecessary to refer to any of the numerous cases adjudging the point. And if this had not been so, 1 presume that the law governing the character of officers defacto, as recognized several times by this court, would control this case so as to decide it as the court below has done. See 2 How. 640 ; Ibid. 664; 4 Ibid. 557; also, 1 Phil. Ev. 557.
    2. But the defence, in my humble judgment, is based upon a misconception of the law, so far as it assumes that some written memorandum must have passed from the lessors to the lessee. This point is evidently controlled by the second section of the act of 1833. (See Fall’s Collection, 452.) That section, so far from contemplating that the trustees shall execute a lease, or anything in the nature of one, explicitly provides that no right, title, use, interest, &c. shall be conveyed until the final payment of all the money. And evidently excludes all idea of any other writing passing between the parties, than the notes given for the lands, by making them a lien on the land for their payment.
    3. But the entire defence was, moreover, misconceived in this, that, assuming the facts offered to be proved, to be true, there was no consideration for the notes. No fraud was attempted to be proved. And it was directly in evidence, that the defendants went into possession, and'remained in peaceable possession of the lands for which the notes were given.
    This being so, until legal eviction by paramount title, no defence can be set up to the notes at law. So far from this being the case, these plaintiffs, successors in office, to those who made the lease, and took the notes, and to whose proper qualification no proof is offered, not only bring this suit, but resist this defence, either of which, I take it is a ratification of the acts of their predecessors, that neither they or their successors could ever gainsay.
    4. I have now, I believe, disposed of the whole case, save the affidavit for a new trial. The first objection to this is that it shows nothing that will bar the action if my views of it be correct. All it proposes to show would not avail the defendant anything. But there is a fatal objection to it even if it presented facts that would undoubtedly bar the suit. This is, it gives as a reason for not being present at the trial, ready to prove them, that he was misled by his attorney as to the time of the trial. The case of Green v. Robinson, 3 Howard, 105, has so flatly settled that no negligence or inattention of a party’s attorney, however palpable it may be, is ground for a new trial, that it is singular that this effort should have been made. See 1 Sch. & Lefr. 201, cited in 1 Johns. Ch. R. 223.
    Hutchinson, for plaintiffs in error.
    The declaration descriptively presents Harman as president of the board and successor of Carter, describes the notes, and avers non-payment; but does not aver on what consideration they were given, nor the process by which Harman became invested as president.
    Authority need not be cited to show that the declaration is fatally defective in having omitted to trace distinctly and in a chain authorized by the statute, the legal right in its transmission from the payee; yet, see 1 Chit. PI. 368; 1 Salk, 355; 1 Raym. 202; Com. Dig. PL E, 23,24; 2 Wend. 561. If I sue as executor, I must aver that my testator made and published a last will in writing; therein appointed me executor; that the vrill was proved; and that I was qualified. So, if I sue as administrator, I must aver that I had an intestate who died without a will, &c. If I sue as successor to a trust, I must, by a sufficient allegation, show how my predecessor became entitled, and how I am invested. Netterville v. Stevens, 2 How. 643. Yet this is the point chiefly urged by my associate.
    But on the declaration and. the notes read in support of it, the evidence offered on the pleas being rejected, the jury had before them nothing but a naked promise to pay Carter, as president of a certain board, so much. It was plainly not a commercial or ordinary dealing — an instance of consideration passed, promised or secured on the one hand, and of undertaking to pay an equivalent in return. It was clearly not a transaction out of which a negotiable bill or note could naturally arise. It was a promise to pay a fiduciary character the sums specified: but for what cause? How, or for what did Cole and Drake become thus indebted to the commissioners of the section 1 The plea of non assumpsit, was no more than a general denial of any cause of action; and if no cause of action, no clearly deraigned legal right in the plaintiff below, to demand and have of the defendants below the sums demanded, it would, I think, be a strange perversion to say, that the denial was an admission of a cause of action. It has been universally held, that a declaration in which there is no cause of an action, will not sustain any verdict or judgment. The defect is fatal as well in error as on demurrer. This peculiarly was a suit in which the specification of the consideration of the promise was essential. Riley v. Yanhouten, 4 How. 428; Willis & Co. v. Ives, 1 S. & M. 307.
    Again, it is manifest, that those concerned in taking the notes, believed that by the legislation of this state, a “ board of commissioners” for the school section mentioned, had been authorized to be elected or appointed, and that certain statutory powers had been given to such commissioners. The whole legislation on the sixteenth sections from first to last, whether general or local, it is believed, contemplates and speaks óf trustees and their election, qualification and powers, and such a thing as a “board of commissioners for a school section,” is presented for the first time in the notes and declaration in this case. If this be a statutory proceeding it ought to have pursued the statutes, and given to itself a name and a right known to the laws. Campbellv. Brown, 6 How. 230.
    I do not rely on the second plea. It is not worthy of notice. It would seem, however, from the bill of exceptions, that evidence was offered to show that the notes in suit were given on or for the lease of part of the sixteenth section mentioned in the notes. That the commissioners who made the lease never gave bond nor took the oath of office ; that only four of them acted ; and that the lease was on only thirty days’ advertisement. Now this was equivalent to the offer of proof to show that no title had originated, and that consequently none had passed in succession. Was this admissible under the general issue? If so it was illegally excluded. The original 4th section of the Creditors’ Act, Feb. 27, 1836 (H. & H. 595, s. 32,) provided that all pleas to the action should be deemed as admitting “the parties and character of the parties suing,” and in no case should the plaintiff or complainant be required to prove any “ written signature, identity of person, description of character, &c.,” unless the signature, person, partnership, or description of character be denied by plea verified. It is impossible, without a review of a thousand volumes, to delineate all the bearings of that statute, or trace in detail its abrogations of the common law. It was in derogation of the common law. Yet it is still the law; but in judicial interpretation it ought to be applied to such cases only as are within the clear meaning and effect of its words, and certainly not one jot beyond them. Well, then, to apply it here — the plea of non assumpsit admitted the identity of Harman — admitted he was president of a certain board called the commissioners of a certain school section, and that he was suing as successor of the payee; and admitted that the names of Cole and Drake, as signed to the notes, were signed by them. Did the act convert the denial of the makers of the note into any other admissions? If any, into what others — what were they ? If into any others it would be well to ask and satisfactory to the country to be informed, if in truth and in result the denial of any pleading in court is not by the potency of that act transformed into an admission. The truth is, the act was only intended as a rule of evidence, to dispense with proof of signatures and partnerships, and nothing more, unless the signature or partnership should be denied by plea and affidavit. There is no dispensation of proof required to support the right claimed. There is no preclusion, by the plea of general denial of right, to question, by the proof, the right claimed. If Carter was president of the board of commissioners when the notes were taken; and if Harman was in being and the successor at the time of suit, was it, under the statute, to be assumed, in opposition to proof offered, that the commissioners who'made the lease were duly elected; had given bond; had taken the oath; had made the requisite advertisement of lease % If so, it is only necessary to file a declaration and get the general issue pleaded, and all is proved; the suitor by his averments proves what cannot be controverted ! It was not so considered by this court in Netterville v. Stevens, 2 How. 642.
   Mr. Chief Justice Shahkey

delivered the opinion of the court.

This suit was brought by the defendant in error, as president of the board of commissioners, and successor to Meshach Carter, late president, &c., on four promissory notes, for $431 each, payable to Meshach Carter, as president of the board of commissioners, for the sixteenth section, in Township eleven, Range fourteen, east, or his successors in office; and it appeared that the consideration was a lease of part of the section above mentioned.

The defendants had pleaded the general issue, and by consent it was agreed that a plea should be considered as put in, denying that said Carter, or said Harman, was, at the time of bringing this suit, legal trustee of said sixteenth section, or at any other time.

After the plaintiff below had introduced the notes, and proved the consideration, the defendants offered a witness to prove that the commissioners who made the lease and took the notes, never qualified themselves to act by giving bond and security, and by taking the oath required by law, but the proof was excluded, and this is assigned for error. The plaintiff has sued in an artificial or fiduciary capacity; it was competent for the defendants to deny the character in which the plaintiff sued, and thus defeat the action; but this was not done ; on the contrary the character- was admitted by the plea of the general issue. It seems to be a case falling very clearly within the provision of the act of the legislature, passed in 1836, (How. & Hutch. 579,) which declares that all pleas to the action shall be deemed as admitting the parties, and the character of the parties suing, and in no case shall the plaintiff be required to prove any written signature, identity of persons, description of character, &c., unless sueh signature, person, partnership, or description of character, be denied by plea, and its truth attested by oath. Before the passage of this statute it was decided that school commissioners, or trustees, suing, must prove their capacity. The defendants, then, could not, under the state of pleadings, question the character in which the plaintiff sued, or whether they had properly qualified to act in the fiduciary capacity, and the proof offered was properly excluded.

The defendants below also offered to prove that the lease had been made on thirty days’ notice. By an examination of the law on which this proof was offered, it is found that when decreed to do so by a majority of the heads of. families residing in the township, the trustees are authorized to lease the school section for ninety-nine years to the highest bidder, on giving six weeks’ notice in a newspaper. It would not follow that a note given for a lease made on shorter notice would be void. If the lessee, knowing the irregularity in making the lease, and without any-assurance, or fraud on the part of the lessors, should choose to give his note and take the risk, the fault would be his own, and he could have no relief from his bargain. But this objection is open to this further answer. A notice of six weeks is only necessary in making a lease for ninety-nine years. It was no doubt perfectly understood on the trial that the lease was made for that term, and we should judge from the price that it was; but we fail to find any such information in the record, and it will not do for us to decide on a state of facts which we know nothing of, except from conjecture. If the lease was for a shorter term, as it may have been, the notice was sufficient, and the evidence was not pertinent.

But it is also insisted that the judgment must be reversed, because the declaration shows no right of action in the plaintiff. He has declared as president of the board of commissioners, and successor to Meshach Garter, late president, &c., and the cause of action (the notes) is described as having accrued by the promise to pay Carter, as the president of the board of commissioners for the sixteenth section, in Township eleven, Range fourteen, east, and his successors in office. The declaration undoubtedly contains a good cause of action, though it may be defectively stated. If it be only a defective statement of title, the remedy was obvious, but it is now too late to raise the objection, it is cured by the verdict.

An objection is also taken that there was no replication to the second plea. As a plea it is defective, being but a short method adopted for convenience, and there is.an issue to it of the same character.

The affidavit presented for a new trial was wholly insufficient, both in regard,to the excuse for the absence of the party, and the facts he states would have been established if he had been present.

Judgment affirmed.  