Holbrook v. Trustees of Schools

Caton, C. J. We shall first consider the sufficiency of the declaration. We think the answer to the objection that it does not show that there was a vacancy in the office of treasurer at the time of Hough’s appointment, is a good one. The statute gave to the trustees the power to remove the treasurer at pleasure. Possessing such a power, the appointment of another in the place of Holbrook was of itself, a removal of him from that office. It did not require a separate antecedent order of removal. Had the law required them to spread upon their records, the reason for the removal, or even authorized them to remove only for good cause, the rule might be different. The declaration avers that Hough was duly appointed and qualified, and it is objected that it should have shown the quo modo of his qualification to the office. We think the averment sufficient. The fact of qualification is the natural fact of the case, and it was not necessary to plead the evidence which would be adduced in support of that fact. Even where a justice of the peace is justifying in an action of trespass for having issued an execution, which has been levied on the plaintiff’s property, it is only necessary for him to aver that he was a justice of the peace, duly elected and qualified as such, without stating the mode of the election or qualification. It is objected that the bond of Hough, the successor of Holbrook, was not approved by the board of education, as required by the school law. The approval was evidenced by the members of the board indorsing an approval on the bond, and signing it with their proper hands and official designation. In this the board followed the precise form pointed out by section 52 of the school law, which would seem to be a sufficient answer to the objection. The only remaining question to be considered, is whether the court was right in refusing to allow the defendants to prove by parol, the contents of an alleged lost bond, said to have been given by Holbrook on his second appointment to the office of treasurer. The witness swore that Holbrook executed a second bond which was delivered to Hitchcock, to be by him sent to the school commissioner. Hitchcock was at that time, and also at the time of the commencement of this action, one of the school trustees, and consequently a member of the corporation in whose name this action was brought. Jones, who was at the time school commissioner, could not find the bond in his office, when subsequent inquiries were made for it. By the defendants, it was urged that Hitchcock was to be treated as a proper plaintiff and a party to the action, and the bond having been last seen in his hands, it was to be considered as in the hands of the plaintiff, and it must be presumed to be still there. The action is by a public corporation as plaintiff, and not by Hitchcock and other individuals, who might at the time happen to be trustees. They might all vacate their office and be succeeded by others, and yet there would be no change of plaintiff either in form or substance. But admitting the defendant’s position to its fullest extent, and that we must assume that the bond was in the hands of the opposite party; it was not such a paper as the plaintiff was bound to know the defendants would require to use on the trial, and hence they should have served a notice on the plaintiff to produce the paper, or else they would give parol evidence of its contents and indorsements. We see no evidence that any such notice was served, and without such notice, the plaintiff was not bound to have it present in court. The evidence was entirely insufficient to prove the loss or destruction of the paper so as to entitle the defendants to give the parol proof for that reason. At least it was necessary to have sworn Hitchcock as to what had become of it. In his hands it was last seen, and he might be able to produce it, or account for it. Admitting that he was a party to the action and still he was a competent witness, and if called upon, obliged to testify upon that collateral question. To prove the loss or destruction of papers, all parties are competent witnesses. We think that the proper foundation was not laid for the testimony of Maze, and that the court properly ruled it out. The judgment must be affirmed. Judgment affirmed.