diminution in the value upon which duties were to be paid, and not a change in the duties to be paid upon that value. The result was the payment of a smaller amount of duties, not because of a "change of duties," but because the value of the goods upon which the duties were paid was smaller. This resulted from no action of congress, or of anybody else acting under the authority of congress, intended to affect either the amount or rate of duties, but was incidental to the exercise of other powers to regulate the money of the country, and purely accidental. It might as well be claimed that a diminished or increased amount of duties, resulting from a diminution or appreciation of the dutiable value of the goods after the contract and before importation, resulting from any other cause, is within the terms of the clause of the contract in question. Had the parties contemplated a change in the amount to be paid resulting from a change in the value of the rupee, it is more reasonable to suppose that they would have made the clause read something like this, "Any change in duties, or in the value of the currency of India, (or the rupee,) to be for or against the purchaser," than to suppose the construction now claimed for the clause in question to have been contemplated. The change in value of the rupee is quite as distinct and independent a contingency to be considered and provided for as the "change in duties," and the language suggested would be far more apt and appropriate to express the additional idea. The more natural construction of the language used is to limit it to a direct change in the rate of duties by congressional legislation, or by authority of congressional legislation, and not to extend it to changes in amount of duties rarely affected, and incidentally and accidentally resulting from legislation and official action intended to effect other objects having no reference to duties or revenues.

This is the conclusion to which my mind has come from a consideration of the language itself, viewed in the light of the general and legislative history of the country, without considering the testimony of witnesses relating to the general understanding of merchants as to the purpose and signification of the clause in question.

If, however, testimony is competent to show what the purpose and signification of the clause is as generally understood in the mercantile community where the contract is made, then the testimony clearly shows that it is understood to be limited to changes in the rate of duty by authority of congressional legislation, as I have already held. The plaintiffs' counsel insist that if this testimony is admissible, it can have no significance for the reason that the provision now found

in section 3564, 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 contracts at at 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 in the amount of duties to be paid was not contemplated by the parties when the contract was made, and is not embraced in the words "change in duties."

There must be a finding and judgment for defendants, and it is so ordered.

UNITED STATES ex rel. THE ÆTNA INs. Co. v. The Board of Town AUDITORS, etc., OF THE TOWN OF BROOKLYN.

1. VAIN ACTS.

(Circuit Court, N. D. Illinois. August 3, 1881.)

The law never requires one to do an idle or vain act. 2. SAME-TOWN DEBTS-DEMAND-MANDAMUS.

Judgments had been recovered against a town from time to time through a number 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 demand would be a mere idle act.

Mr. Bailey, for relator.

Edsail & 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,-all with costs.

It appears by the petition that these judgments were recovered on interest coupons on bonds issued by the town of Brooklyn to the Chicago & Rock River Railroad Company, in pursuance of law, and in accordance with a vote of the electors of the town. It also ap pears that the main question involved in these various 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 Co. 99 U. S. 362.

It is alleged and admitted that the town has no property or effects which could be reached by execution on the judgments. It is also stated that the judgments are all in full force, and in no part satisfied; which statement is not denied by the answer which has been 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 formal demand for payment of the several judgments would be 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 subject. Lower v. U. S. ex rel. 91 U. S. 536.

The board of auditors has 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 main defence set forth in the answer to the petition is that a demand has not been made by the relator, 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 offered in evidence, and there is no controversy about the existence of the judgment and their non-payment. The town clerk has demurred to the petition, and the petition, answer, and demurrer have been argued together by the counsel and considered 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 clerk 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," §§ 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

were recovered as stated in the petition; that they have not 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 imposition of a tax upon the property of the town. One of the judgments 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 measures long ago to cause 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 authorities of the town, and after ample opportunity for defence. One of them involving, as I understand, the principle of all 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 generally true 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 a part of the machinery, so to speak, by which the judgments are to be satisfied. The clerk is himself a member of the board of 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 must do.

According to my view of the case there is really no material fact

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.

RICE v. MARTIN & CLARK and others, Intervenors.

1. WITNESS-OTHER PARTY TO TRANSACTION DEAD.

All disqualifications on the ground of interest in the event of the suit are abolished by section 858 of the Revised Statutes, except only where 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.

2. PARTNERSHIP.

Under the facts of this case, held, that no partnership existed between Rice & Norton at the time this suit was commenced.

Suit in Equity.

Lewis & Deal, for plaintiff.

C. H. Belknap, for defendants.

C. 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 as the "Figure 2 cattle," and in a ranch known as the "Duck Flat ranch." The main question is whether he was so or not. Incidental to this is a question 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 Comp. 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."

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