that "no question of fact shall be tried which may arise prior to the making of the contract for the said improvement under the order of the cominon council," and it also provides that, "if the court or jury shall find that the proceedings of the said officers subsequent to said order directing the work to be done are regular, that the contract has been made, that the work has been done in whole or in part according to the contract, and that the estimate has been properly made thereon, then the court shall direct the said property to be sold." Rev. St. 1881, § 3165. It is clear that these provisions forbid the property owners from making any question that reaches back of the contract, and the absence from the transcript of facts or proceedings affecting matters antecedent to the making of the contract cannot affect the substantial rights of the parties. It is equally clear that irregularities in proceedings prior to the making of the contract cannot prejudice such rights. This has often been adjudged. In speaking of an attempt to present questions affecting proceedings anterior to the contract it was said by BERKSHIRE, J., in Boyd v. Murphy, 127 Ind. 174, 25 N. E. Rep. 702, that "the contention of the appellant is in the teeth of the statute. This expresses the result of the decisions upon the subject. Sims v. Hines, 121 Ind. 534, 23 N. E. Rep. 515; Jenkins v. Stetler, 118 Ind. 275, 20 N. E. Rep. 788; City of Elkhart v. Wickwire, 121 Ind. 331, 22 N. E. Rep. 342; Ross v. Stackhouse, 114 Ind. 200, 16 N. E. Rep. 501; Trustees v. Rausch, 122 Ind. 167, 23 N. E. Rep. 717; Johnson v. Allen, 62 Ind. 57; McGill v. Bruner, 65 Ind. 421; City of Ft. Wayne v. Shoaff, 106 Ind. 66, 5 N. E. Rep. 403; Taber v. Grafmiller, 109 Ind. 206, 9 Ñ. E. Rep. 721; City of Greenfield v. State, 113 Ind. 597, 15 N. E. Rep. 241; Wiles v. Hoss, 114 Ind. 371, 16 N. E. Rep. 800; Clements v. Lee, 114 Ind. 397, 16 N. E. Rep. 799; Board v. Silvers, 22 Ind. 491; Palmer v. Stumph, 29 Ind. 329; Kalbrier v. Leonard, 34 Ind. 497; Gulick v. Connely, 42 Ind. 134; Martindale v. Palmer, 52 Ind. 411. The cases of Moberry v. City of Jeffersonville, 38 Ind. 198; McEwen v. Gilker, Id. 233; and Kretsch v. Helm, 45 Ind. 438,-were in conflict with the much better considered earlier cases, as well as with later ones, and have been overruled. The object of the statute is evident, and its effect just. It gives effect to a long-existing principle of equity, for it precludes a property owner who permits a contractor to improve a street from defeating a recovery for the work because of errors or irregularities which occurred prior to the time the contract was executed. The statute has much to commend it, nothing to condemn it.

The rule that a property owner is estopped, by force of the statute, from assailing the proceedings antecedent to the making of the contract, disposes of the argument of the appellants' counsel that the transcript is insufficient because of an alleged irregularity in advertising for proposals.

We cannot hold that the appellees must lose their cause because the affidavits for the precepts were made by one only of the contractors. The affidavit of one person

is as effective in such a case as this as that of two persons, and so it has been expressly decided. Jenkins v. Stetler, 118Ind. 275, 20 N. E. Rep. 788. The decision in Ray v. City of Jeffersonville, 90 Ind. 567, does not oppose the conclusion here declared, but, on the contrary, impliedly supports it.

The notice to the property owners of the amount of the assessment and the affidavit for a precept are, as the record shows, combined. They constitute, in contemplation of law, one instrument. In the former the lot assessed is specifically described, so that there can be no mistake as to the lot against which it was asked that a precept should issue. We think it clear, therefore, that the affidavit does contain a description of the lot.

The contention of appellants' counsel that the affidavit is insufficient because it does not properly show an assessment presents a more difficult question than those we have considered and decided. The statute requires that the affidavit shall state "that the whole or some part of said assessment remains unpaid, showing the amount paid and the amount due; that the estimate has been duly made, and that the work estimated has been done according to contract." Rev. St. § 3165. The affidavit before us shows the amount of the estimate, the number of lineal feet of frontage, the cost per lineal foot, and that "no dollars" has been paid; and it shows also that a specific sum (which is definitely designated) remains unpaid. This, we think, is a sufficient statement of the amount due and unpaid. The affida. vit does say in terms that the estimate has been duly made, and that the work has been done according to contract, and this is a sufficient statement as to the esti mate. The decision in Balfe v. Johnson, 40 Ind. 237, is not of controlling influence, because the lot against which the precept is issued in this case is specifically described. There is not here, as in that case, the inclusion of several separate lots in one affidavit, and a gross assessment against all. Here the affidavit states the specific assessment against each particular lot, and each affidavit designates the cost per lineal foot, so that there is no similarity between the two cases. The affidavits do refer to a contract, do designate South Fifteeenth street as the street improved, and aver that "more than twenty days have elapsed since the date of the estimate: that the same was duly made; and that the work estimated bas been done according to contract between said Grottendick and Cronin and the city." There is, therefore, no such defect as that which existed in the affidavit in Clements v. Lee, 114 Ind. 398, 16 N. E. Rep. 799, where the court said: "There is no intelligent reference to any contract which the affiant had theretofore entered into with the cominou council of the city of Crawfordsville for the improvement of the street described in the ordinance directing the work, nor does the affidavit state the amount which had been paid, or that the work was done under a contract with the city council, and that the work so done had been duly estimated. We have examined the record

on file in Clements v. Lee, supra, and find the affidavits radically different from the affidavit contained in the record before us, so that the decision in that case is not influential here. We cannot assent to the doctrine that an affidavit must recapitulate all the steps that have been taken; for the statute, as we have seen, declares what it shall contain, and it is sufficient if it substantially conforms to the statutory requirements. There would be little use in requiring a contractor to rehearse to the common council its own acts. It would serve no useful purpose to compel him to convey information already imparted to it by its own records, nor would the property owner receive the slightest benefit from such a requirement. It would be ineffective and fruitless, and it is evident that the statute exacts no such strictness. We adjudge all the affidavits save three or four to be sufficient. It is probably true that some of the affidavits are de fective; but whether they are or not is immaterial, for, if there is one good affidavit, the transcript cannot be condemned. It is an elementary rule that, if part of a pleading is good, a demurrer to the entire pleading is unavailing, and that rule ap. plies here, for the appellants have treated the transcript as a single complaint, and as such have assailed it by demurrer. They have also assigned as error the overruling of the demurrrer to the complaint, thus treating it as an entirety. Having voluntarily elected to so treat the transcript, by that election they must abide.

It is insisted that the precepts are fatally defective. One of the grounds of objection is that the engineer is not authorized to certify estimates. We think otherwise. Our judgment is that the engineer is the proper officer to make the estimate, and that it is his duty, under the law, to make it. Ray v. City of Jeffersonville, supra; Taber v. Grafmiller, 109 Ind. 206, 9 Ñ. E. Rep. 721; Van Sickle v. Belknap, (Ind. Sup.) 28 N. E. Rep. 305; Linville v. State, 29 N. E. Rep. 1129, (this term.) See, also, authorities cited in Elliott, Roads & S. pp. 429, 430.

Another ground of objection to the precepts is that the names given the contractors do not fully correspond with those appearing in the contract. We cannot yield to the contention that the error in giving the names of the contractors defeats the rights of the contractors to compensation for their work. It is very clear that such an error could not have prejudiced the appellants, for there can be no doubt as to the persons intended to be designated; nor can there be any doubt as to the improvement referred to, nor as to the contract upon which the assessment is founded. The statute declares what the precept shall contain, and these are the statutory provisions: "Which precept shall be signed by the mayor and attested by the clerk, and sealed with the seal of said city, and shall set forth the name of the person against whom the assessment is made, the description of the lot or land on which it is made, the amount of such assessment, and the date of the esti mate." Rev. St. § 3165. There is no express requirement that the names of the

contractors shall be given, and we do not think that an error in naming them can be regarded as fatal. Whether a failure to name them at all would or would not be fatal we do not decide, for there is no such question here, as names are given which are in part correct.

The question in this case is not whether the appellants shall lose title to their property, but the question is, can the contractor enforce the assessment? There is

an essential difference between a case where the question of title is in issue and a case where the question is as to the right to enforce a lien. Many irregulari. ties available in the one case are of no effect in the other. Where there is a legal or equitable lien, a party may prevent it from ripening into a title, but to do so he must tender the amount of the lien. City of Indianapolis v. Gilmore, 30 Ind. 414; Jackson v. Smith, 120 Ind. 520, 22 N. E. Rep. 431; City of Elkhart v. Wick wire, supra. See, also, authorities cited in Elliott, Roads & S. pp. 386-388.

The special verdict returned by the jury is needlessly prolix, and contains some matters of evidence, and probably some conclusions of law; but these matters do not necessarily vitiate it. The rule is that a verdict will be sustained if, after eliminating improper matter, it contaius facts sufficient to sustain a judgment. Railroad Co. v. Brunker, 128 Ind. 542, 26 N. E. Rep. 178; Horton v. Hastings, 128 Ind. 103, 27 N. E. Rep. 338; Hamilton v. Byram, 122 Ind. 283, 23 N. E. Rep. 795. A motion for a venire de novo reaches matters of form, and is effective only when the verdict is materially defective. Bowen v. Swander, 121 Ind. 164, 22 N. E. Rep. 725; Railway Co. v. Green, 120 Ind. 367, 22 N. E. Rep. 327; Peters v. Ranta, 120 Ind. 416, 22 N. E. Rep. 95. The rules declared by the authorities to which we have referred require the conclusion that there was no error in overruling the appellants' motion for a venire de novo.

The transcript shows that the estimate of the engineer was adopted and approved by the common council, and this constitutes a sufficient assessment. The fact that the resolution adopting the estimate provides that property owners who have paid part of former assessments which were vacated does not invalidate it, nor impair the effectiveness of the assessment. The provision that payments made shall be duly credited is nothing more than a declaration of what the law implies, for in reason and in justice the property owners were entitled to an allowance for which they had paid. It is, at all events, clear that no harm could possibly result to the appellants, or to any other property owners, from the provision in the resolution to which we have referred. If the appellants had paid nothing on the assessment, (and the record shows they have not,) they cannot successfully complain, even if others could, for the question is, what is the effect of the proceeding upon them? not what it is upon others.

It is contended that the special verdict does not authorize a judgment, because the assessment is levied upon the whole of

each lot, and not upon 50 feet in depth, as provided by the amendatory act of 1881, (Rev. St. § 3163.) This contention cannot prevail. The statute which governs this case is not that referred to by counsel, for that statute was repealed by the act of April 13, 1885. Elliott, Supp. 753; Crowell v. Jaqua, 114 Ind. 246, 15 N. E. Rep. 242; City of Evansville v. Summers, 108 Ind. 189,9 N. E. Rep. 81; City of Frankfort v. State, 128 Ind. 438, 27 N. E. Rep. 1115. It is the act of 1885, and not the prior act, that governs this case. The special verdict shows that the first assessment was ineffective, because the owner of the lots was given as "Mark Reeves' Heirs," and this defect was sufficient to warrant a vacation of the first assessment, and the levying of the assessment upon which these proceedings are founded. Jenkins v. Stetler, 118 Ind. 275, 20 N. E. Rep. 788. Judgment affirmed.

(131 Ind. 90)

STATE ex rel. DAYTON GRAVEL ROAD Co. et al. v. BOARD OF COM'RS OF TIPPECANOE COUNTY.

(Supreme Court of Indiana. April 2, 1892.)

MANDAMUS-WHEN GRANTED.

1. Where a board of county commissioners submits the question of purchasing a certain toll rcad to the electors of the townships through which the road runs, at which election a majority of such voters declare in favor of the purchase, and the board afterwards refuses to make an order for such purchase, mandamus will not lie to compel the board to make such order, its action being a judicial one.

2. Mandamus will not lie also, because there is an adequate legal remedy, in that an appeal can be taken from a decision of the board of commissioners acting in a judicial capacity.

Appeal from circuit court, Tippecanoe County: B. W. LANGDON, Judge.

Application for mandamus by the state of Indiana, on the relation of the Dayton Gravel Road Company and others, against the board of commissioners of Tippecanoe county. From a judgment of the court below denying the writ, plaintiffs appeal. Affirmed.

Rice & Potter and Coffroth & Coffroth, for appellants. J. B. Miller, Vinton & Vinton, and J. M. La Rue, for appellee.

COFFEY, J. This was a suit in the Tippecanoe circuit court by the appellants against the appellee to compel the latter, by mandamus, to complete the purchase of the toll road therein described. The court sustained a demurrer to the petition, and the propriety of this ruling is presented for our decision. So much of the petition as is necessary to an understanding of the questions involved is substantially as follows: The relator the Dayton Gravel Road Company is a gravel road corporation duly organized under the laws of the state of Indiana, and has been such for more than 20 years last past, and was at and before the 15th day of October, 1890, and for more than 20 years theretofore, the owner and in the possession of a line of gravel road lying and being situate in the townships of Fairfield, Wea, and Sheffield, in said county. Said gravel road was at the time aforesaid, and still is, a toll road. On the 15th

day of October, 1890, there was presented to the defendant, * * then in special session, a petition signed by more than 50 freeholders and citizens of said townships of Fairfield, Wea, and Sheffield, wherein said gravel road is located, representing to said board that said gravel road is a toll road, and asking said board to submit to the voters of said township the question of purchasing said gravel road, and to take the necessary steps provided by law for holding an election by the voters of said respective townships as to whether said gravel road should be purchased. At the time of presenting the petition the relator Jacob Burton was a citizen, freeholder, and taxpayer of Sheffield township, and the relator William S. Potter was a citizen, freeholder, and taxpayer of Fairfield township, and they yet so remain. Acting on said petition, the board, on the 10th day of October, 1890, appointed Henry D. Miller on behalf of the board, Francis Acheson on behalf of the gravel road company, and Everett B. Vawter, the surveyor of Tippecanoe county, viewers to view said road, and to determine the consideration to be paid for the same. On the 8th day of November, 1890, they made their report to the board then in special session, in which they described the road as the same is described in this petition, and fixed the consideration to be paid therefor at the sum of $10,000. On the 19th day of November, 1890, the board submitted to the gravel road company an offer to purchase said road for that sum, and required it to accept or reject in writing said offer on or before the last day of the December term of the board, and on the 13th day of December, 1890, the gravel road company did accept said offer, and filed its writ'en accept. ance thereof with said board; and thereupon the board ordered a special election to be held in the townships of Fairfield, Wea, and Sheffield on Saturday, the 24th day of January, 1891, by the voters of said tow..ships, at which election it was ordered there should be submitted to the voters of each of said townships the ques tion of purchasing said gravel road for the consideration above stated. It is alleged that the proper and legal notice of said election was given; that the election was held on the day named, resulting in a majority of 660 in favor of the purchase of said road, which vote was duly certified to the board by the proper election officers; that on the 29th day of January, 1891, the gravel road company tendered to the board a deed for said gravel road, and at that time said road company was not indebted to any person: that thereafter, to wit, on the 3d day of February, 1891, the board, when in special session, then and there refused to make an order for the purchase of said toll and gravel road, and to issue the bonds of the county therefor to said company, and so entered such refusal upon its records. Prayer for a writ of mandamus requiring the board of commissioners to make an order to purchase said road, and to issue to the relator the gravel road company bonds of the county dated February 3, 1891.

rency to make good an impairment of the capital stock thereby occasioned to the amount of $75,000, the stockholders of the bank, acting under the provisions of section 5143, Rev. St. U. S. 1878, reduced the capital stock to $225,000. At the meeting, when this action was taken, the stockholders voted to take the depreciated assets which were the cause of the impairment from the assets of the bank, and place them in the hands of trustees, for the use and benefit of the stockholders. The appellant was named as one of the trustees. The officers of the bank ignored this action by the stockholders, and retained the securities in question in their possession. They subsequently appreciated in value, and the bank realized on them $83,000. This suit was by the appellant, as such trustee, to recover said sum. The averments of the complaint are sufficient, if the trust which the stockholders thus attempted to create was valid. The conclusions reached in McCann v. Bank, supra, are, we think, decisive here. The very full consideration given that case enables us to dispose briefly of the case at bar. It must be remembered that the reduction in the capital stock of the bank was, in a sense, involuntary, and was to meet an impairment of equal amount. It must be presumed that the comptroller of the currency, in estimating and determining the amount of the impairment, considered all of the assets of the bank, and that his estimate was based upon what then appeared to be their value, making proper allowance for assets depreciated in value and for those regarded as valueless. The assets of a bank are held by it in trust (1) for the payment of its indebtedness; and (2) for the distribution among its stockholders of the surplus only, if any remaining. Morse, Banks, § 706. Conceding, without deciding, that the stockholders of a national bank, the capital stock of which is intact, may voluntarily reduce its capital stock under the statute. for the purpose of withdrawing a portion of the investment, and may thereupon withdraw assets to an amount equaling the reduction, the question remains, can they take such action when the reduction is involuntary, and is only made to an amount equaling an impairment in its capital? The right to withdraw assets in the one case would not necessarily involve the right to do so in the other. In the one case the reduction in the amount of its stock is made for the purpose of releasing and withdrawing a portion of the investment. In the other it is made because it is discovered that a corresponding amount of the investment has been lost, and thus already involuntarily withdrawn. There can be no voluntary withdrawal of any portion of the assets of a bank, when the effect of such withdrawal will be to impair the capital stock or endanger the security of its creditors. On the facts before us, it will be presumed that the reduced capital stock represented the actual value of the remaining assets. Prima facie, any further with drawal of assets, whether of great or of little value, would result in still further impairment of the capital. In our opin

ion, the stockholders had no power to withdraw the assets in question, and no valid trust was created by the attempt to do so. We purposely limit our decision to this one question, which is, of itself, amply sufficient to vindicate the action of the trial court. For this reason we express no opinion upon the other questions suggested. Judgment affirmed.

(131 Ind. 99)

O'BRIEN et al. v. Moss et al. (Supreme Court of Indiana. April 5, 1892. ) EMPLOYMENT OF TEACHERS-Rights of TAXPAYERS -ACTION OF TRUSTEE INJUNCTION.

1. Notice of the decision of the taxpayers of a school district, at a regular meeting, that they did not want a certain person as teacher, was in June, 1888, given to the trustee, who disregarded it, and employed the persou. October 8th objection was renewed, and, on refusal of the trustee to consider the question of the right of the teacher to teach the school, they gave notice of appeal to the county superintendent, who, on October 13th, decided in their favor. January 7, 1889, they brought suit for injunction. Held, that there was no such delay on their part as to lose them their right of action.

2. Under Rev. St. § 4501, providing that the trustee shall not employ any teacher whom a majority of those entitled to vote at school meeting have decided, at a regular meeting, they do not wish to employ; and section 4537, providing for appeal from the decision of the trustee to the county superintendent, and declaring his decision final on all local questions relating to the dismissal of teachers, -the taxpayers are enti tled to an injunction, the refusal of the trustee to act being equivalent to an adverse decision, from which appeal could be taken.

Appeal from circuit court, Clay county; HIRAM TETERS, Special Judge.

Action by John C. Moss and others against Elmer G. O'Brien and others for injunction. Judgment for plaintiffs. Defendants appeal. Affirmed.

W. W. Carter and Jas. A. McNutt, for appellants. Matson & Luther, for appellees.

ELLIOTT, C. J. The appellees allege in their complaint that they are resident voters and taxpayers of school district No. 3, in Sugar Ridge township, Clay county; that on the 23d day of June, 1888, at a regular school meeting in the school district, the taxpayers, parents, and guardians of children enumerated in the district decided that they did not wish the appellant O'Brien employed as a teacher; that notice of this decision was given to O'Brien and to Fernsel, the trustee; that Fernsel disregarded the decision, and employed O'Brien; that on the 8th day of October, 1888, the appellees and others gave notice to O'Brien that they would require Fernsel to decide the question of the former's right to teach the school: that on that day they presented to Fernsel the question for his de cision; that Fernsel refused to consider or decide it; that the parties thereupon gave notice to Fernsel and O'Brien that they intended to appeal from the action of Fernsel to the county superintendent of schools, and that they would present the matter to the superintendent on the 13th day of October, 1888; that the matter was presented to the superintendent