State v. Webber.

corporations. Where such trustees may have established a system of graded schools, or such modifications of them as may be practicable, within their respective corporations, they are clothed by law with the discretionary power to prescribe the course of instruction, in the different grades of their public schools. We are of opinion that the rule or regulation of which the relator complains in the case under consideration was within the discretionary power conferred by law upon the governing authorities of the school city of Laporte, that it was not an unreasonable rule, but that it was such a one as each pupil of the high school, in the absence of sufficient excuse, might lawfully be required to obey and comply with.

It will be observed that the relator has stated the requirements of the rule, whereof he complains, with much vagueness and uncertainty. "Each of the pupils shall, at stated intervals," etc. What the intervals are, whether once a week, once a month, or once each term or session, is wholly left to conjecture. "Employ a certain period of time," etc. There is no period of time more uncertain in duration, than the time represented by the expression, "a certain period of time." Was it fifteen minutes, one hour, or one day? The relator has not informed us.

We pass to the consideration of the second question, above stated.

2. The school authorities of the city of Laporte, in the exercise of the discretionary power conferred on them by law, adopted a rule or regulation requiring that each pupil of their high school should, at stated intervals, employ a certain period of time in the study and practice of music, and for that purpose should provide himself with a prescribed book. The relator requested the superintendent of the public schools of the city of Laporte to excuse his son, Abram Andrew, who was one of the pupils of the high school, from the study and practice of music at the musical exercise of such school, and directed his son not to participate in such musical exercises. The superintendent afterward required the relator's son, as one of the pupils of the high school, to take part in the musical exercise of the school, and upon his refusal to obey or comply with such requirement, suspended him from such high school. The only cause or reason assigned by the relator for requiring his son to disobey such rule or regulation was that he did not believe it was for the best interests of his son to participate in the musical studies and exerercises of the high school, and did not wish him to do so. VOL. LVIII — 5

State v. Webber.

The relator has assigned no cause or reason, and it may be fairly assumed that he had none, in support either of his belief or of his wish. The important question arises, which would govern the public high school of the city of Laporte, as to the branches of learning to be taught and the course of instruction therein, the school trustees of such city, to whom the law has confided the direction of these matters, or the mere arbitrary will of the relator, without cause or reason in its support? We are of opinion that only one answer can or ought to be given to this question; the arbitrary wishes of the relator, in the premises, must yield and be subordinated to the governing authorities of the school city of Laporte, and their reasonable rules and regulations for the government of the pupils of its high school. This is the doctrine of the case decided by the courts of last resort in many of our sister States; and as applicable to the facts of this case, we think it is the better doctrine. Roberts v. Boston, 5 Cush. 198; Hodgkins v. Rockport, 105 Mass. 475; Ferriter v. Tyler, 48 Vt. 444; s. c., 21 Am. Rep. 133; Sewell v. Board, etc., 29 Ohio St. 89; Donahoe v. Richards, 38 Me. 379; s. c., 61 Am. Dec. 256; Gurnsey v. Pitkin, 32 Vt. 224; Kidder v. Chellis, 59 N. H. 473. On the other hand, it is not to be denied that the decisions of the Supreme Court of Illinois and Wisconsin are in apparent conflict, to some extent at least, with what we here decide. Morrow v. Wood, 35 Wis. 59; s. c., 17 Am. Rep. 471; Rulison v. Post, 79 Ill. 567; Trustees, etc., v. People, 87 Ill. 303; s. c., 29 Am. Rep. 55. There is much in the opinions of those learned courts, which applied to the cases before them, meets our approval; but we think that the doctrine of those cases cannot apply, and ought not to be applied, to the case in hand as stated by the relator, in his verified complaint herein, to which case we limit this opinion.

For the reasons given, our conclusion is that no error was committed by the court below in sustaining appellees' demurrer to the relator's complaint.

The judgment is affirmed, with costs.

Judgment affirmed

a an action by the holder against the payee, indorser of a promissory note, the latter may show that he indorsed it after payment at the plaintiff's request, as evidence of payment.

A prior existing debt is a valid consideration for the pledge of negotiable paper as security for its payment.

A

CTION on a promissory note. The head-note states the case. The defendant had judgment below.

J. E. McDonald, J. M. Butler and A. L. Mason, for appellant.

W. W. Herod, for appellee.

NIBLACK, J. This was an action by Benjamin F. Spencer, as the holder, against William Sloan, as indorser, of a promissory note executed by one Milton Spencer to the said Sloan on the 10th day of July, 1868, for $405, and payable two days after date. The complaint alleged the insolvency of Milton Spencer at the time of, and ever since the assignment of the note.

The defendant answered in seven paragraphs, but he afterward withdrew the first and second paragraphs, and a demurrer having been sustained to the fourth paragraph, only the third, fifth, sixth and seventh paragraphs remain in the record.

To these third, fifth, sixth and seventh paragraphs of answer demurrers were filed at the proper time and afterward overruled. The third paragraph averred that at the time the note in suit was executed Milton Spencer, the maker thereof, and the plaintiff were partners in business; that the defendant loaned such partners the sum of $405, and as evidence of the debt thereby created, took the note in question under the belief that it was signed by both of said partners; that a certain railroad bond of the real and face value of $1,200 was at the same time delivered to him, the defendant, as collateral security for the payment of said note; that after the maturity of said note, and by the direction of the plaintiff and the said Milton Spencer, he surrendered the same to one Thomas A. Goodwin, who paid him the full amount due upon such note;

Spencer v. Sloan.

that at the request of the said Goodwin, he, the defendant, indorsed his name upon the note as evidence that it had been paid, and for no other purpose; that for the reasons given he never sold or transferred the note to any other person.

The fifth paragraph alleged that prior to the execution of the note sued on, the plaintiff, to induce the defendant to loan to the said Milton Spencer the sum of $405, agreed to put up a certain railroad bond of the value of $1,000 as collateral security therefor; that the said loan was accordingly made and the note described in the complaint executed; that said bond was thereupon delivered to the defendant as such collateral security; that when in October, 1868, the defendant transferred the note to the plaintiff, he also transferred to him the bond, which was amply sufficient to pay the note, but that the latter had either sold or lost said bond, and converted the same to his own use without taking any steps whatever to subject such bond to the payment of the note; that at the time said note was transferred to the plaintiff, the said Milton Spencer was hopelessly and notoriously insolvent, as the plaintiff well knew, and has ever since so continued to be.

The sixth paragraph asserted that the note herein described was given by Milton Spencer, the maker, in consideration of a loan of $405; that at the time of the execution of the note, he, the said Milton Spencer, placed in the hands of the defendant a certain railroad bond of the value of $1,000 to secure the payment of said note; that the defendant accepted and held said bond as such security until in October, 1868, when he transferred said bond and note to the plaintiff; that the plaintiff thereafter sold or destroyed said bond without making any effort to subject the same to the payment of said note, whereby said bond as a security for such payment has become lost; that the said Milton Spencer was at the time of such transfer wholly insolvent as the plaintiff well knew.

The seventh paragraph stated that the plaintiff is a brother of the said Milton Spencer, the maker of the note declared on, and that to secure the payment of the said note he delivered to, and placed in the hands of the defendant a certain railroad bond of the face and actual value of $1,000; that afterward, to redeem said bond, the plaintiff paid off and discharged said note; that thereupon the defendant surrendered to him said note and bond; that after the note and bond had been so surrendered to him, the plaintiff asked the defendant to put his name on the back of the note to

Spencer v. Sloan.

show that it had been paid by him and not Milton Spencer, and that for that purpose, and for no other, the defendant did put his name on the back of the note; that consequently the defendant did not sell, assign or transfer the note to the plaintiff.

The plaintiff replied in five paragraphs, but afterward withdrew all but the fifth paragraph. This latter paragraph was addressed only to the fifth and sixth paragraphs of the answer, and averred that the note indorsed by the defendant, as charged in the complaint, was executed as evidence of a prior indebtedness of Milton Spencer, the maker of such note to the defendant, and payable long before the time of the execution of such note, and for no other consideration whatever; that the bond referred to in said fifth and sixth paragraphs of the answer was always the property of the plaintiff, and hence never belonged to, the said Milton Spencer, either in whole or in part, all of which was fully known to the defendant at the time said bond came into his possession and at the time he assigned the note to the plaintiff; that the loan of money to Milton Spencer was not made, nor was the note executed on the faith of such bond; that such bond was not delivered to the defendant until long after the execution of the note, and then only as collateral security for the prior existing debt, evidenced by the note. Wherefore the plaintiff averred that there was no consideration to support the pledge of said bond to the defendant as collateral security for the payment of said note; that the surrender of said bond by the defendant to the plaintiff constituted a relinquishment of all the former's alleged right to have the same held as collateral security for the indebtedness represented by said note.

A demurrer was sustained at special term to this paragraph of reply, and the plaintiff declining to plead further, final judgment was rendered against him for want of a reply, and that judgment was affirmed at General Termi.

On behalf of the plaintiff below, it is claimed that the indorsement of a promissory note constitutes a certain and well defined contract, with as much force and meaning as if all the conditions and stipulations had been written out at full length, and that hence parol evidence is inadmissible to either modify or contradict such a contract of indorsement, and the case of Stack v. Beach, 74 Ind. 571; s. c., 39 Am. Rep. 113, is relied upon as supporting that doctrine. But the doctrine as thus stated was in that case only made to apply to indorsements upon a note or bill, which regularly follow