1860. June Term, an injury to real estate on which the judgment was a lien, the debtor being insolvent, and the defendant having committed the injury wrongfully, with a view to impair the JONES COSTIGAN et al. plaintiff's security. The same doctrine is also approved in Lane vs. Hitchcock, 14 John., 213. See also Smith vs. Moore, 11 N. H., 55. These cases not only fully sustain this action, but their reasoning, particularly that in Van Pelt vs. McGraw, furnishes a satisfactory answer to the cases most strongly relied on by the respondent. The same remarks there made in regard to Peterson vs. Clark, 15 John., 205, are applicable to Cooper vs. Davis, 15 Conn., 556. That was an action where the title to mill-stones was involved, which had been severed from the premises and sold by the mortgagor while in possession. The case turned upon the title to the mill-stones, and the question whether an action like the present could be sustained, was not involved. The language of the court relied on, relates to the action for waste, as known at the common law, for an injury to the property, without reference to the question whether the security was injured. The right of action seems entirely clear, where the injury is committed by a mere trespasser. It is not at all impeached by the fact that the mortgagor might also sustain an action for the same injury. It is frequently the case that different persons, having different interests in property, have each a right of action for an injury to it, each recovering the damage to his own interest. The only difficulty that could arise, would be where the injury is committed by the mortgagor, or under his direction. He being the owner, and having the right to treat the property for all purposes as his own, subject, however, to the rights of the mortgagee, the difficulty would be to define precisely what acts should render him, or those acting under his authority, liable to an action. But we think that Van Pelt vs. McGraw establishes the true rule, and that where an injury is committed by the mortgagor, or others acting by his direction, knowing his insolvency, and the existence of the security, and knowing that the act complained of will impair it, the action should be sustained. The objection that the appellant cannot maintain the ac 1860. DIST. NO. 7 tion as trustee, for the reason that it was a tort, and the right June Term, of action therefor could not be assigned, is not valid. If the injury had been committed before the assignment, then it JOINT SCHOOL would be good; but here it was committed after the assignment, and the assignee, holding the title for the benefit of all the parties for whom it was made, is the proper plaintiff. The judgment is reversed, with costs, and the cause remanded for further proceedings. V. WOLFE et al. JOINT SCHOOL DISTRICT NO. 7, &c., vs. WOLFE and others. The power conferred by law upon the state superintendent of public instruction, tain portions of a joint school district should be detached and erected into a ERROR to the Circuit Court for Dane County. This action was brought by Joint School District No. 7, of Burke, Blooming Grove, Cottage Grove and Sun Prairie, to recover damages for an injury done by the defendants to a school house in said district, and to perpetually enjoin the defendants from removing said school house, as it was alleged they had threatened to do while the school was in session therein. The rights of the parties turned upon the validity and effect of a decision made by the assistant superintendent of public instruction, which was in substance as follows: "In the matter of the appeal of Abram Wolfe and others, of Joint District No. 7, of Burke, Blooming Grove, DIST. NO. 7 V. WOLFE et al. June Term, Cottage Grove and Sun Prairie, &c., against the act of the 1860. superintendents of said towns in refusing to divide said joint JOINT SCHOOL district. * * * It is therefore decided that the appeal be sustained, and that section 1 and the east half of 2 in the town of Blooming Grove, and section 36 and east half of 35 in the town of Burke, shall hereafter constitute one joint district, to be known as Joint School District No. 7, of Burke and Blooming Grove; said joint district to be the legal heir and successor of Joint District No. 7, of Burke, Blooming Grove, Sun Prairie and Cottage Grove, liable for its past debts, entitled to its credits, &c. Provided, and this decision shall be null and void except upon the performance of the acts herein required, that the said Joint District No. 7, of Burke and Blooming Grove, shall pay to the district comprising the north half of section 6, in Cottage Grove, and section 31, in Sun Prairie, or the districts to which those tracts may be severally attached, such sums of money as shall be found from the assessment roll, &c., to be duly proportioned to the tax contributed by them to the building of the school house in said former school district." In pursuance of this decision, a meeting of the legal voters of the territory designated as forming Joint School District No. 7, of Burke and Blooming Grove, was duly called, a director, treasurer and clerk elected, and a resolution or or der passed "that the sum of $54 68 be raised by tax for the purpose of paying to the district comprising the north half of section 6 in Cottage Grove, and section 31 in Sun Prairie, or to the districts to which they may severally be attached, such sums of money as shall be found, from the assessment roll, to be duly proportioned to the tax contributed by those parts of the district, as formerly constituted, to building the school house in said former joint district," and also a resolution "that the district board are required to locate a school house site, &c., and to remove on to said location the new school house lately built, and which, by the decision of the state superintendent, belongs to this district," &c. In pursuance of this last resolution, the defendants (who were the board of directors elected for said new district, and their employees) took steps to commence the re moval of said school house, which were the acts com June Term, plained of. 1860. DIST. NO. 7 The circuit court assessed the plaintiffs' damages at $100, JOINT SCHOOL and granted an injunction according to the prayer of the complaint. Abbott, Gregory, Pinney & Flower, for plaintiffs in error. WOLFE et al. By the Court, COLE, J. We have very great doubt about November 19. the right of the assistant state superintendent of public instruction to examine and determine appeals from the decisions of the town superintendents in forming or altering, or in refusing to form or alter, school districts. The statute authorizes the state superintendent to appoint an assistant superintendent of public instruction, and declares that such assistant shall perform such duties as his principal shall prescribe, not inconsistent with law. Sec. 72, chap. 10, R. S., 1858. It also makes it the duty of the state superintendent, to examine and determine all appeals duly made to him from the decision of any school district meeting, or from the decision of any town superintendent, in forming or altering, or in refusing to form or alter, any school district, or concerning any other matter under the common school law of the state; and his decision thereon is final (sec. 65). Controversies growing out of the formation of school districts, frequently give rise to questions of considerable difficulty and importance, and we have but little doubt that the legislature, in conferring upon the state superintendent the power to review and revise the action of the local authorities upon these matters, intended to make this a personal duty, to be discharged by the state superintendent. We can conceive of nothing belonging to his office, which evinces greater personal confidence and trust, than this power to hear and determine these appeals. There are many things connected with the office. of state superintendent of public instruction, which can as well be performed by an assistant as by the superintendent himself; but this power to hear and determine these appeals, is a quasi judicial function, and ought to be exercised by the state superintendent in person. We therefore June Term, think that the order of the assistant state superintendent, 1860. bearing date November 30th, 1859, exhibited among the JOINT SCHOOL papers in this case, and made in the matter of the appeal of Abram Wolf and others, of joint district No. 7, &c., was unauthorized and void. DIST. No. 7 V. WOLFE et al. But, moreover, if we are wrong in supposing that the assistant state superintendent had no right to act upon and determine this appeal, still it is very clear that according to the order made by him, the school house could not be removed until payment of a certain sum had been made to the other parts of the old district. For the order says: "This decision shall be null and void, except upon the performance of the acts herein required; that the said Joint District No. 7, of Burke and Blooming Grove, shall pay or cause to be paid to the district composed of the north half of sec. six, in the town of Cottage Grove, and section thirty-one, in the town of Sun Prairie, or the districts to which these several tracts of land may be severally attached, such sums of money," &c., thus making the validity of the order depend upon the performance of certain things. Now it is not pretended that the conditions have been performed, upon which the valid ity and operation of the order depended. The most that was done to comply with it, was to rule to raise, by taxation, a certain sum of money, to be paid over to the other parts of the old district. But this was not what the order required. The money was to be paid before the order should take effect. As this was not done, the plaintiffs in error had no right whatever to interfere with the school house, and their attempting to do so when the school was in session, presented a very proper case for an injunction. Several questions of practice were raised and discussed upon the briefs of counsel, but it appears to us unnecessary to notice them, after expressing ourselves upon the merits as distinctly as we have. We certainly think the order upon which the plaintiffs in error relied to justify them in removing the school house, was of no validity in the first instance; and even if it were a valid order, the parties acting under it, did not perform the conditions precedent, upon the perform |