majority">Gilfillan, C. J.

The existence of school-district No. 10 is not artificially pleaded in the complaint; but, under the decisions in County of Redwood v. Tower, 28 Minn. 45; La Grange Mill Co. v. Bennewitz, Id. 62; Folsom v. County of Chisago, Id. 324; Johnson v. Rumsey, Id. 531; and Coolbaugh v. Roemer, 30 Minn. 424, relaxing in some degree the strictness formerly enforced, it is sufficient on that point. There can be no question that the pleader intended to rely upon the fact as part of the cause of action; the facts stated cannot, be true unless there was such a district, and no contrary inference-can be drawn from such facts. The facts stated assume and include the fact that there was such a district.

From the allegation that there was a regular meeting of the district-in the fall of 1881, at which “the voters of said district, being then, and there duly assembled,” voted, etc., it will be presumed that the meeting was valid, and was properly composed, including the requisite number of voters.

The neglect and refusal of defendant, clerk of the district and one-of the trustees, to maintain the school for the length of time voted at. *229"the meeting, rendered him liable to the penalty imposed by Gen. St. 1878, c. 36, § 86, as amended by Laws 1879, c. 41. The meeting ■had voted to raise the necessary means by tax, the tax was levied and ■collected, and the funds presumptively in the district or county treasury applicable to the expenses of the school. It was the duty of the ■trustees to provide the school for the time voted, (c. 36, § 24,) unless ■they were unable to do so. Defendant could have avoided liability, so far as he was concerned, by showing that he endeavored to carry ■out the will of the meeting, but was unable to do so, either from the refusal of the other trustees or some other cause. No such excuse appears.

The penalty prescribed by section 86, as amended, is “to the use of said district,” and the action “to be prosecuted by the director of said •district, or by any freeholder in said district.” Must it be in the name of the district, or may it be in the name of the director or free-bolder ?

Where an action for a penalty, under chapter 36, is prosecuted by the county attorney, it must, under section 93, be “in the name and for the use of the proper county or district.” Section 86 does not require this, nor, perhaps, permit it. And there is a good reason for the difference. The county attorney, it is to be presumed, will not bring the action except in a proper case and on probable cause. 'There can be no assurance of this where an action is brought on ■his own responsibility by a director or freeholder. Under section 93, the district will be liable for the costs of an unsuccessful suit. The legislature, doubtless, thought it inexpedient to permit a director or freeholder to subject the district to costs by bringing a suit at his pleasure in the name of the district, and, for that reason, section 86 contemplates that the action authorized by it, though the cause of action be in the district, shall be prosecuted in its behalf by the person mentioned, in his own name. A general demurrer raises only the question whether the district has a cause of action for the penalty. The question that the person prosecuting the action has not legal capacity to sue upon it, as that he is not a freeholder, cannot be so raised, for it does not go to the cause of action.

Judgment affirmed.

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