AUDITORS OJ' TOWN OJ' BROOKLYN.
in section 8564, Rev. St., was not adopted till long after the war, and long after the custom having its origin in the war and its attendant legislation of introducing the clause in question had been established; and at that time the question whether a change in foreign coin would work a change in the duty could not have arisen. Concede this to be so, then, if such a question could not have arisen for that reason, it follows that the parties making those contract9 "'i tha.t time could not specifically have contemplated embracing such a change in the amount of duties in the term "change of duties;" as used in these contracts, and it is not probable that the sense has since been extended. In my judgment, in any view I can take of the matter, such a change the parin the amount of duties to be paid was not contemplated ties when the contract was made, and is not embraced in ·the words "change in duties." There must be a finding and judgment ror defendants, and it is 80 ordel'ed.
UNITED STATES e:r: reI. THE INs. Co. 'D. THE BoARD AUDITORS, etc., OJ' THE ToWN OJ' BROOKLYN.
(Circuit Court, N. D. lUinoil. August 3, 1881.)
AcTS. The law never requires one to do an idle or vain act.
Judgments had been recovered against a town from time to time through a numLcr of years without any action being taken by the town authorities to provide for their payment. Upon an application for a mandamus against them to compel them to take the necessary action under the law, held, that the writ might issue without a formal demand upon them for their payment, or to proceed as the law required, as it. was apparent that to make such demalld would be a mere idle act.
Mr. Bailey, for relator. EdBail If Hawley, for defendants. DRUMMOND, C. J. This is an application by the relator, after due notice, for a peremptory mandamus against the defendants to take the necessary steps under the law to assess a tax for the payment of various judgments which have been rendered in this court against the town of Brooklyn, Lee county,-one on the thirteenth of. March, 1876, for $5,511; one on the twenty-fourth of June, 1879, for $22,644.30; one on the thirty-first of March, 1880, for the sum of $5,120.50; and one on the twenty-fourth of December, 1880, for $5,615.68,-a11 with costs.
It appears by the petition thaHhese. j'1l'dgPlents were recovered on interest coupons on bonds issued by lthetown of Brooklyn to the Chicago & Rock River Railroad in' pursuance of .law, alld in accordance with a vote of the eleotors of the town. Italao appears that the main,question inv01ved in these various judgmsutshas in one of the cases been decided by the supreme court of, the United States, affirming the validi:ty of the judgment rendered by this court. Brooklynv.lnsuranot Co:OOU. S. 362. It is alleged and 'admitted that the' town has no property or effects which could be reached by execlition on the judgments. It is also stated ihat .the, judgments are' aU in full forcs,aml in no part satisfied ;:wllich statem'ent is not denied by theanswel' which has been put in. ·Itis averred that· the defElndants haveneglected and refused to make provision for the payment of the interest on the bonds, and that a fOl'lllal demttnd foy'payment Of the several judgments would be unavailing. This is not with the necessary explicitness denied By the answer. There can be.Ilo doubt that these judgmentR are a town charge, within the meaning of the statute of the state upon the subject. S, rel. 91 U.. S. 536. The boardof auditors Pl1S l:\.nswered the petition, and states merely that it is not advised or informed whether the town has refused or neglected to pay the judgment, or threatened that it will not pay the same, and so denies the truth of the same. The main defence set forth in the answer to the petition is that a demand has not b.een made by the relator, or by anyone on its behalf, for the payment these judgments, prior to the filing of the petition in this case. 'The judgments have been offered in evidence, and the're is no controversy about the existence of the judgment and their non7payment. The town clerk has demurred to the petition, arid the petition, answer, and demurrer have been argued together by the counsel fl.nd consid. ered by the court, and the question is whether, upon what may be regarded as the conceded facts of the case, the relator is entitled to a peremptory mandamus requiring the board of auditors and the <ll'erk to proceed in conformity with law. The law requires, for the purpose of meeting a charge against the town,that the board of auditors and clerk should duly proceed, in the manner pointed out by the statute. to cause the property of the town to be assessed for its payment. Rev. St. Ill. (Cothran's Ed.) 1507, 1508, "Township Organization, i' §§ 115, 118, 120, 121, 124. The two facts which must be considered as established by the pleadings in this case, and by the evidence, are that these judgments
UNITED STATES V. AUDI'l4);RS . OF TOWN OF BROOKLYN.
were recovered as stated in the petition; that been paid either in whole or in part; and that no steps have been'taken by the proper authorities of the town to cause their payment by the town. One of the judgimposition of a tax upon the property of ments was rendered more than five years since; one more than two years; and the others during the last year. Although it was the duty of the defendants, or the board of auditors and the clerk, under the law, to adopt long ago tocauae the payment of these judgments, rendered in March, 1876, in June, 1879, and in March, 1880, yet nothing has ever been done, and the only serious question, as I view the subject, is whether it was necessary that a demand should be made in form by the relator, upon the authorities of the town, for their payment, or to proceed,'in the manner pointed out in the law to cause payment of the judgments. And I think it was not. These judgments were all recovered after due service of process upon the authoritiesof.the town, and Mter ample opportunity for defence. One of them involving, as I understand, the principle of aU the cases, was finally decided by the supreme court of the United States adversely to the defence set up by the town. It must be presumed, therefore, that these defendants knew of the existence of these various judgments, and that it was their duty to proceed in conformity with law, and that they have failed so to do. It would seem, therefore, to be a vain act to demand that they should proceed under the law, when they had done nothing for a series of years. The only controversy about any of the judgments is as to that rendered in December last. But while it is generallytrlle that a court will not issue a mandamus to compel the performance of an act which it is merely.anticipated the defendant will not perform, still if the defendant has shown by his conduct that he does not intend to perform the act, and that fact is apparent to the court, it would be a work of supererogation to require that a demand should be made for its performance. Here the only effect of issuing the writ of mandamus is to require. the authorities of the town to do what by law they are obliged to do.! The board of town auditors and the clerk are each ll. part of the machinery, so to speak, by which the judgments are to be satisfied. The clerk is himself a member of the board ')f auditors. And therefore it seems to me to be proper ana reasonable, and nothing more than the relator has a right to claim of the court, that an order should be issued requiring them to do what the law says, in such a case as this, they IllUst do. According to my view of the; case there is really no materialfact·
upon which it would be necessary to take the verdict of a jury. The judgment of this court must, therefore, be for the relator, both on the answer of the board of auditors and the demurrer of the clerk. The writ will accordingly be directed to issue.
v. MARTIN & CLARK and others, Intervenors.
(Oircuit Oourt, D. J!Veoada. August 15,1881.)
All disqualifications on the ground of ,interest in the event of thegu!t are abolished by section of thl3,Revised Statutes, except only,wher:e an executor, administrator, or guardian is a party for or against whom judgment may be rendered, and it is sought to prove, by' one of the parties, some transaction with or statement by the testator, intestate, or ward.
Under the facts of this case, h6ld, tbat no partnership existed between Rice& Norton at the time this suit was commenced.
Suit in Equity. Lewis Ii Deal, for plaintiff. , G. H. Belknap, for defendants. G. S. Variran, for intervenors. HILLYER, D. J. The plaintiff claims to have been a partner of B. B. Norton, in his life· time, in a band of cattle known alii the "Figure 2 cattle," and in a ranch known as the "Duck Flat ranch;" The main qnestion is whether he was so or not. Incidental to this is a tion of statutory construction, involving the law of Nevada" and section 858 of the Revised Statutes of the United States. ,The question is whether Rice is a competent witness as to transactions between himself and Norton, Norton being dead. Section 377 of the Practice Act of Nevada abolishes all disqualifications of a witness' "by reason of his interest in the event of the action or proceeding, as a party thereto, or otherwise." 1 Compo Laws, § 1438. And section 379 provides that "no person shall be allowed to testify under the provisions of section 377, when the other party to the transaction is dead." As amended, St. 1879, p. 49. Section 858 of the Revised Statutes of the United States enacts that" in the courts of the United States no witness shall be excluded '" '" '" in any civil action because he is a party to or interested in the issue tried. '" '" '" In all other respects the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States."