#### State ex rel. Farr vs. The City Council of the City of Racine.

Mandamus, *to compel levy of tax: When demand not necessary.*— Evidence *of plaintiff’s ownership of judgment.*

1. Where the law authorizing city bonds made it the duty of the council from ■ time to time to levy a tax to pay interest and principal, and did not make that duty contingent upon a demand being made: *Held,*that after judgment upon the bonds or coupons, *mandamus*would lie to compel the levy of a tax to- pay the judgment, without demand made.

2. An affidavit by relator’s attorney that the judgment had been assigned to relator, and that the written assignment was in affiant’s hand, *held,*to be sufficient evidence of relator’s ownership, until the assignment was impeached, or the contrary shown.

APPEAL from tbe Circuit Court for *Racine*County.

On tbe 28th of February, 1862, a judgment was duly docketed in said court in favor of one Taylor against tbe *259city of Racine, for $8,048.40. In 1867, *Farr*appeared in-court by *Matt. H. Carpenter, Fsq.,*bis attorney, and, on tbe record of said judgment and tbe affidavit of said attorney, moved for a *mandamus*requiring tbe common council of said city to levy and assess a tax on tbe taxable property of the' city to pay tbe judgment, etc. Tbe affidavit states, among other things, that Taylor, on etc., sold and assigned said judgment to *Farr,*“as appears by written assignment thereof in tbe possession of said affiant;” that tbe judgment was upon coupons of certain bonds issued by said city, under chap. 114, Pr. & L. Laws of 1856; and that tbe city council bad never levied or assessed any tax to pay that portion of tbe interest on said bonds included in said judgment. An order was granted requiring the council to show cause, etc.; and, after a bearing, tbe court made an order for a peremptory *mandamus.*Tbe order recites, among other things, that it appeared to tbe court that said judgment had been assigned to tbe relator, and was owned by him, and entirely unpaid, and that no tax had been levied or collected to pay it. Tbe city council appealed from tbe order.

*Flbert 0. Hand,*for tbe appellant.

(No argument on file.)

*Matt. H. Carp>enter,*for tbe relator,

to tbe point that no *demand*was necessary, cited *Comm. v. Council of Pittsburgh,*34 Pa. St., 512; *Pegina v. Kendall,*1 Ad. & E. (N. S.), 386, n.; *King v. Fast India Co.,*4 B. & Ad., 530; *Graham V: Maddox,*6 Am. Law Reg., 625.

DixoN, C. J.

There can be no question as to tbe right of a judgment creditor, in a case like this, to tbe writ of *mandamus*to compel tbe city council to levy a tax to pay tbe judgment, provided an application sufficient in form is made. This application seems to us sufficient. Tbe only objections raade or suggested are, 1st, that a demand on tbe city council to levy tbe tax is necessary before a *mandamus*.can go; *260and, 2d, that it is not shown by the affidavit that the relator is the owner of the judgment. • ' -

A demand is clearly unnecessary, because it is made the duty of the city council, without it, from time to time to levy a tax sufficient to pay the interest and principal of the bonds upon which the judgment was rendered, as the same shall become due. Pr. Laws *of*1856, chap. 114, sec. 5. If the act had required the council to do so upon the demand of any person interested, .then a demand would have been necessary; but not otherwise.

The affidavit shows-that the judgment has been assigned by the judgment creditor to the relator, by written assignment in possession of the affiant as the relator’s attorney. This is sufficient evidence of the relator’s ownership of the judgment — at all events until the assignment is impeached, or the contrary shown.

*By the Court*— Order affirmed-