Page:Federal Reporter, 1st Series, Volume 8.djvu/488

474 .Kc > i ,!>; FEDERAL REPORTER. .i,; �It appears by the petition that these, jadgments were recoverfij on interest coupous on bonds issned byithe town of Brooklyn to the Chicago # Eock Eiver Eailroad Company'," in pursuanee of law, and in accordance with a vote of the eleetors of the town. It also ap- pears that the mainquestion. involved in these varions judgments has in one of the cases been decided by the supreme court of . the United States, affirming the validity of the judgment rendered by this court. Brooklyn V. Insurance Oo'.^ V. S. S62. �It is alleged and adBiitted that the' town has no property or effects which could be reach^d by execution on tha judgments. It iS aiso sMedihat the judgments are all in full force, and in no part satisfied ; ■«rHieh stateru«nt i» not de'nied by the answei' which has beert put in. It is averred that the defendants have neglected and refused to make provision for the payment of the interest on the bonds, and that a formai demand foJ^payment of the several judgments wouldbe unavailing. This is not with the necessary explicitness denied by the answer. There can be no doubt that these judgments are a town charge, within the meaning of the statute of the state upon the sub- ject. Lfiwer\.'U. S, ex rel. 91 TJ.B.5SG. �The board of auditors bas answered 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 rnain defence set forth in the answer to the petition is that a demand has not been made hy ike relater, or by any one on its behalf, for the payment of these judgments, prior to the filing of the petition in this case. The judgments have been ofifered in evidence, and there is no eontroversy about the existence of the judgment and their nonTpayment. The town clerk has demurred to the petition, and the petition, answer, and demurrer have been argued together by the counsel and eonsid- 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 oleik 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. 111. (Cothran's Ed.) 1507, 1508, "Townsliip Organization," §§ 115, 118, 120, 121, 124. �The two facts which muet be considered as established by the pleadings in this case, and by the evidence, are that these judgments ��� �