As an employe, having voluntarily put himself in danger, he cannot recover. Dogget v. Illinois Central R. Co. 34 Iowa, 284. The custom of miners to visit their fellow workmen, and the acquiescence of the defendant in such custom, cannot be regarded as an invitation for the workmen to leave their proper places and frequent dangerous parts of the mine at the risk of defendant. The allegations of the petition do not present the case of a trap or concealed danger of which the defendant was bound to give intestate notice. It is not shown that the dangers were not apparent or could not have been seen by the intestate. There is necessarily some degree of danger in all mines, and such dangers are increased by the age of the supports of the roof and other causes. It is not shown that these dangers were concealed by defendant, and the intestate was induced or invited by defendant to expose himself thereto. We conclude that the grounds of the demurrer which we have discussed were well taken, and the court correctly held the petition defective. The other objections raised by the demurrer need not be discussed.

Affirmed.

THE DISTRICT TOWNSHIP OF COON, Appellant, vs. THE BOARD OF DIRECTORS OF THE DISTRICT TOWNSHIP OF PROVI

DENCE and others, Appellees.

Filed October 28, 1879.

Allegations in the petition in this case held, in absence of motion to make more definite, sufficiently specific; and as the proportion of the amount claimed from each fund of the township was not controverted, it is to be conclusively presumed it is correctly stated. It is the duty of the board of directors of the township to audit all claims, and designate the proper fund out of which they are to be paid. A claim which has been put in judgment has, in one sense, been audited; and all that is necessary for the board to do is to designate the proper fund, and direct the necessary orders to be drawn thereon.-[ED.

Appeal from Buena Vista circuit court.

It is stated in the petition that the plaintiff obtained a judgment in the district court of said county for $4,578.86 damages, and $377.70 costs; that, of said judgment, about $2,003.30 thereof was rendered on account of orders issued on the school-house fund, about $840.92 on account of orders. on the teachers' fund, and about $1,734.64 thereof on account of orders issued on the contingent fund; that said judgment is wholly unpaid, and, at a time when defendants' board of directors were legally assembled, the plaintiff demanded of

said board the payment of said judgment by orders on the proper funds, drawn on the treasurer of said district township; that it is the duty of the defendants to issue said orders, but that they refused to do so. A writ of mandamus is asked to compel the performance of such duty. The answer, as it stood at the trial, denied the alleged demand only. There was a trial by jury, and a finding the demand had been made. The defendants filed a motion in arrest of judgment and for a new trial, which was sustained, and the plaintiff appeals.

G. S. Robinson, for appellant.

O'Connel & Springer, for appellee.

SEEVERS, J. 1. That mandamus should not issue when it will prove unavailing; that the party asking for it must show a clear right thereto, and that it must appear it is in the power and is the duty of the defendant to perform the act sought, is believed to be true. The appellees insist the petition is defective in substance, and the motion in arrest properly sustained, because-First, "no sufficient demand is alleged in that it did not specify the amount of the orders desired against such fund;" second, "it is not alleged that the amount of the debt against such fund was determined by the judgment in question;" and, third, "it is not shown affirmatively by the petition that the board could have ascertained the amount of the debt against such fund."

It is insisted by counsel for the appellees that the law is that the matters indicated in the foregoing propositions must be made to appear before the plaintiff is entitled to the relief demanded. If this be conceded to be true, the question then is whether the petition is sufficient in these several respects. It states in substance the amount or proportion of the judgment which is payable from the three funds recognized by the statute. The allegation, in this respect, is not as definite and certain as it should be if it was material to be stated at all; but it is, without doubt, sufficient, in the absence of any attempt of the defendant to have it made more specific. Clearly they could waive a more specific statement if they saw proper. If issue had been joined in this respect, the plaintiff might have been able to have established to the entire satisfaction of the jury the exact sum or proportion of the judgment payable out of each fund. Conceding, therefore, such an allegation to have been material, the allegations of the petition relating thereto are deemed admitted. Code, § 2712. This is not a case where the statement of facts in

the petition are insufficient to entitle the plaintiff to any relief whatever, and therefore it is not governed by Code, § 2650. As the allegations of the petition as to the proportion due from each fund was not controverted, and is deemed to be true, no evidence was required on the part of the plaintiff. The conclusive presumption must be indulged that the several amounts are correctly stated in the petition. The allegations thereof become definite and certain by the failure to controvert them, and the failure to ask they be made mo e specific. There is a demand averred; it may not be sufficiently stated, but it is clear from the petition a demand was made. If the petition, in this respect, was not as full as defendants believed it should be, they should have moved for a more specific statement in this respect. This might possibly be different if it was essential a demand should be averred, and nothing was said on that subject in the petition.

Besides this we are unwilling to believe the plaintiff was bound to do more (if that) than demand that orders be issued by the defendants in satisfaction of the judgment. It was not the duty or province of the plaintiff to demand that orders be issued for a certain amount on one fund and for a different amount on another. Clearly the defendants would not be bound by the plaintiff's designation of amount to be drawn on the several funds. If the defendants were not bound to comply with such a demand, if made, it was unnecessary to make it in the form required. The board of directors must of necessity determine upon what fund orders are drawn, otherwise creditors could effectually cripple a school district by demanding payment from the teachers' fund and thereby exhausting it. It was not essential the judgment should specify the funds liable to its payment. If material, as we have before said, this fact might be proved by any competent evidence. What the plaintiff could have established in this respect we cannot of course know. It is sufficient to say that, under the issue joined, the plaintiff was not required to prove anything with reference thereto. The evidence, we think, supports the finding.

2. There are only three funds recognized by the statutethe school-house, teachers', and contingent. It is the duty of the board of directors to audit all just claims against the district. Code, § 1733. All orders drawn on the treasurer shall specify the fund on which it is drawn, (Code, § 1739,) and the treasurer is forbidden to pay any order which does not so state on its face. Code, § 1748. When a judgment has

been obtained against a district township it is made the duty of the board to pay off and satisfy the same from the proper fund by an order on the treasurer. Code, § 1787. These are all the provisions of the statute to which our attention has been called bearing on the question under consideration. If the debt has not been put into a judgment it is quite clear there is no statutory provision requiring a person, when the claim is presented to the board to be audited, to specify and designate the fund he believes the debt should be paid out of. If he did so the board would not, as has been said, be bound to comply; or if he named the wrong fund this would not authorize the rejection of the claim.

It is the duty and privilege of the board to do this. It matters not how this is ascertained. The statutes enjoins on. the board the duty of auditing, and it must be conclusively presumed the power to perform it exists. In some cases this duty may be more difficult than in others, but this, it is obvious, cannot affect the question of power, or have the effect to release the defendants from the performance of an official duty. The object of the statute is to prevent the board from using one fund to discharge an indebtedness properly chargeable to another. An honest endeavor on the part of the board to effectuate this object is all that is required. If a mistake should be made we fail to discover any provision of the statute which provides a penalty or authorizes the treasurer to refuse to pay a warrant, which on its face specifies the fund the board has seen proper to direct it should be paid from. The power to audit, and the provision which forbids the payment of an order which does not specify the fund on which it is drawn, by implication give the board the power to direct the fund from which the payment is to be made. When a debt has been put into a judgment it has in one sense been audited. All the board has to do, as to such a claim, is to designate the proper fund, and direct the necessary orders to be drawn thereon. This being an official duty the board should not be permitted to say they cannot perform it. They may not be able to accurately specify the amount to be paid from each fund. In such case they must approximate thereto as near as they can. When this is done the object of the statute is accomplished. Public corporations. cannot be permitted to escape paying a just debt by the interposition of any such bare technicality. It finds no support in the statute, and common honesty forbids that it should prevail. We are impressed with the belief that the court

below sustained the motion in arrest of judgment, and that the motion for a new trial was not passed upon. None of the grounds upon which a new trial was asked are specially urged by counsel for the appellees, except such as have been herein disposed of. No ground whatever existed for granting a new trial, in our opinion.

Reversed.

NATIONAL LIFE INSURANCE COMPANY, of Montpelier, Vt., Appellee, vs. HAMDEN A. OLMSTEAD and others, Appellants.

Filed October 28, 1878.

In a proceeding to foreclose a mortgage the bill alleged a transfer of the mortgage property subject to the mortgage debt, demanding a personal judgment only against the parties assuming such debt, the original debtor and mortgagor's answer alleged usury in the original debt, pendency of a suit by himself against his grantees and others to vacate the conveyance made by him, and asked a receiver. Held, that demurrer to such answer was properly sustained; that having sold the premises to another, and no personal claim being made against him for any deficiency, he was a mere stranger, and the fact of the pendency of his suit did not change his status so far as his answer was concerned.-[ED.

Appeal from Dallas district court.

The plaintiff's petition alleges that John D. Rivers made and delivered to plaintiff three promissary notes, viz.: one principal note for $4,000, due April 1, 1878, and two interest notes for $200 each, due respectively October 1, 1877, and April 1, 1878, all payable at Montpelier, Vermont, with ten per cent. interest after maturity and still unpaid; that to secure the payment of said notes, and four other interest notes since paid, the said Rivers and his wife at the same time executed to plaintiff a mortgage on 360 acres of land in section 29, township 81, range 26, Dallas county; that subsequently said Rivers and wife conveyed to defendant Hamden A. Olmstead all of said section 29 subject to plaintiff's mortgage on the said 360 acres thereof, and another mortgage for $1,680 on the remaining 280 of said section, with the usual covenants against incumbrances, except as to said mortgages, both of which the grantee by express terms assumed. An amendment to the petition alleges that section 29 was afterwards conveyed to defendant James G. Olmstead, who also assumed said mortgages by a deed not placed on record, and adds as new defendants D. F. Butin and John D. Rivers, who claim to have some interest in the premises covered by plaintiff's mortgages; but plaintiff avers that, whatever their v3—8 (no. ii) (113)