People ex rel. Edgecomb v. Loomis

SITAFTER, J. The averment in the petition that the ordinance on which the plaintiff counts was “duly passed” relates only to 'the proceedings immediately connected with the passage of the ordinance. Where a mandamus to license a curate merely stated that he had been duly nominated and appointed by the inhabitants of a township to be curate of the church at P., without stating the consent of the rector, or the existence of any endowment, or of a custom for the inhabitants to make such nomination and appointment, the court quashed the writ for insufficiency: The King v. The Bishop of Oxford, 7 East, 345. Admitting that the ordinance was passed according to all the forms of law, it does not follow that the county had previously become the purchaser of the building. Where, from the facts stated, it does not appear that the petitioner is entitled to what he asks, the petition must be considered as substantially defective: 7 East, 353.

The answer does not supply the defect in the petition. It states: “That the appraisers appointed to appraise the said property reported among other things that said building was not in their judgment in all respects suitable for the purposes named.” It does not appear by whom the appraisers referred to were appointed, nor is it stated, either directly or indirectly, that they reported or passed upon the value of the building.

Motion for new trial denied.

We concur: Sawyer, J.; Sanderson, J.; Currey, C. J.