By the Oourt,
Cole, J.This case stands upon a demurrer to the plea which has been filed to the answer made to the alternative writ. It seem to us that the demurrer must be sustained. From the answer it appear that Bintliff, the superintendent of common schools, who formed school district No. 6, out of the territory of district No. 8, properly apportioned the value of the school house an'S other property justly due the new district, as he was required to do by the provision of the statute. The plea does not traverse and deny, or confess and avoid the fact that the superintendent made the order of apportionment mentioned and set up in the answer, bearing date February 27th, 1857. This we consider the ma*32terial point of the answer, and which, if true, shows that a peremptory writ should not be awarded. But the plea takes issue upon immaterial questions and is therefore bad.
It was insisted, however, upon the argument by the counsel for the relators, that the order made by the superintendent, Bintliff, was inoperative and void, because it was not filed or recorded by him in his office, or in the office of the town clerk. But we do not think this point well taken ; however proper and convenient the practice might be for the town superintendent to make a record of such an order in his own office, or in the office of the town clerk; still, we cannot perceive that the statute makes it his duty to file or record such orders, or provides that their validity shall depend upon their being so recorded or filed. The statute, in effect, provides that when a new district is formed in whole or in part from one or more districts possessed of a school house, or entitled to other property, the town superintendent, at the time of forming such new district, shall ascertain and determine the proportion of the value of the school house and other property justly due to such new district. Chap. 23, § 64, Rev. Stat.
The next section prescribes the mode, or declares the principle upon which this apportionment shall be made. But the statute does not declare that the apportionment shall be inoperative and void, unless the town superintendent files or records his order in his office, or the office of the town clerk.
The answer in the present case shows that Bintliff made an order, in writing, in which he ascertained and determined the proportion of the value of the school house, and other property justly due the new district; and the amount of money named in the order it appears has been raised by taxation upon the old district, and tendered to the new district No. 6. If the facts set up in the answer are true, we have no doubt, but Bintliff made a verbal and effectual order of apportion*33ment, and unless the facts can be successfully controverted, a peremptory writ must be denied. The plea does not take issue upon these facts, and it was conceded upon the argument that the order was made as therein stated.
The demurrer must therefore be sustained, with leave to the relators to file an amended plea, if they desire it.