Louisville City Railway Co. v. Masonic Savings Bank. it was therefore of no importance, so far as the efficacy of the record of the deed and certificate was involved, whether the certificate was true in that respect or not. It is also insisted that the evidence shows that the deed was not read and explained to Mrs. Talbott, and that her husband was present when she acknowledged it. She testified to both these facts, but was expressly contradicted by R. E. Harrison and the appellee. If, therefore, the validity of the certificate depended upon a preponderance of the parol evidence alone, it would be sustained. But even a preponderance of evidence against the certificate would not be sufficient to overturn it. (Hughes & Co., &c. v. Coleman, &c., 10 Bush, 246.) We perceive no error to the prejudice of the appellants, and the judgment is affirmed. 12bu 410 d123 245 CASE 45-PETITION EQUITY-Nov. 23. Louisville City Railway Co. v. Masonic Savings Bank. APPEAL FROM LOUISVILLE CHANGERY COURT. 1. BOND DISCHARGING ATTACHMENT MUST BE APPROVED BY THE COURT unless the court is in vacation. (Civil Code, secs. 242, 243.) 2. BONDS DISCHARGING ATTACHMENTS ISSUED BY THE LOUISVILLE CHANCERY COURT must be approved by that court, as section 777 of the Civil Code provides that it shall be deemed to be always open for the transaction of business. 3. A bond taken by the sheriff of Jefferson County discharging an attachment issued by the Louisville Chancery Court, and not approved by the court, can not be treated as a statutory bond, and the chancellor has no right to enforce compliance with such a bond by rule and attachment as in cases of contempt as provided in section 254 of the Civil Code. JUDGE COFER DELIVERED THE OPINION OF THE COURT. Having returns of nulla bona on executions issued upon two judgments at law against the appellant, the Louisville City Railway Company, the appellee brought suits thereon in the Louisville Chancery Court under section 474 of the Civil Code, and caused attachments to issue, which were levied by the sheriff of Jefferson County upon an iron safe belonging to the company and upon money belonging to it which was found. in the hands of its agent. The company thereupon gave bond with the appellant Davidson as surety to perform the judgment of the court in the actions respectively. The court having adjudged that the railway company should pay to the appellee the amounts of the judgments sued upon, rules were awarded against the company and its surety, C. G. Davidson, to pay into court the amount of said judgment; and the rules having been made absolute, both have appealed to this court, and insist that the bonds are not valid as statutory bonds, and can not be enforced by rule. The bonds were both taken and approved by the deputy sheriff who levied the attachments, and it does not appear that either was executed in or approved by the court. Sections 242 and 243 of the Civil Code provide that "if the defendant, at any time before judgment, causes bond to be executed to the plaintiff by one or more sufficient sureties, to be approved by the court, to the effect that the defendant shall VOL. XII.-28 Louisville City Railway Co. v. Masonic Savings Bank. perform the judgment of the court, the attachment shall be discharged and restitution made of any property taken under it or the proceeds thereof;" and that the bond may, in vacation, be executed in the presence of the sheriff having the order of attachment in his hands, or, after the return of the order, before the clerk, with the same effect upon the attachment as if executed in court; the sureties in either case to be approved by the officer. Section 777 of the Code provides that the Louisville Chancery Court shall be deemed to be always open for the transaction of business. The bonds in question were not therefore executed in vacation, and should have been executed in court; the sheriff was not authorized to take them, and they can not, for that reason, be treated as statutory bonds; and the chancellor had no right to enforce compliance with them by proceeding under section 254 as for contempt. Wherefore the orders making the rules absolute are reversed, and the cause is remanded with directions to discharge the rules without prejudice. Courtney v. Louisville. CASE 46-PETITION EQUITY-Nov. 29. Courtney v. Louisville. APPEAL FROM LOUISVILLE CHANCERY COURT. 1. WHEN REAL ESTATE OUGHT AND WHEN IT OUGHT NOT TO BE SUBJECTED TO TAXATION FOR THE ORDINARY PURPOSES OF A TOWN OR CITY. In order to subject real property within the corporate limits of a town or city to taxation for ordinary purposes, there must be both benefits, actual or presumed, to such property, derived from the municipal government, and a town or city population on or near it, creating a necessity or at least rendering it not unreasonable that the local government should be extended over it. But if, considering the location of the property with respect to actual population, it plainly appears that it is not near enough to require municipal government, and has not been laid out into lots, and could not be profitably so used, it ought not to be subjected to taxation for town or city purposes. 2. REAL ESTATE IN LOUISVILLE, SO SITUATED THAT IT CAN NOT be CONSTITUTIONALLY TAXED FOR ORDINARY PURPOSES, can not be taxed by the city, under the existing laws, for school purposes. But no doubt is entertained that the legislature might constitutionally authorize the city to tax all the property within the corporate limits for school purposes. (City of Henderson v. Lambert, 8 Bush, 607.) 3. TAXES LEVIED BY THE CITY OF LOUISVILLE TO MEET SUBSCRIPTIONS MADE TO THE STOCK OF RAILROAD COMPANIES are not levied under authority given in the charter of the city, but under the charters of the railroad companies. 4. Under the charter of the Elizabethtown & Paducah Railroad Company all persons and estate within the corporate limits of the city of Louisville, as established at the date at which the city subscribed for stock of that company, are subject to taxation levied on account of such subscription. BODLEY, SIMRALL & BODLEY, CITED For Appellant, MS. Opinion, May, 1871, Wilson v. Helm. MS. Opinion, January 17, 1871, Meyers's heirs v. Stanford. 9 B. Mon. 330, Cheaney v. Hooser. Courtney v. Louisville. 2 Metc. 553, Malthus v. Shields. 7 Bush, 37, Swift & Co. v. Newport. 15 B. Mon. 492, Covington v. Southgate. T. L. BURNETT, For Appellee, CITED MS. Opinion, Nov. 15, 1873, Louisville v. Courtney. 13 Iowa, 405, Wappello County Case. JUDGE COFER DELIVERED THE OPINION OF THE COURT. The situation of the appellant's property with respect to the population and government of the city seems to be about the same that it was in 1870, when it was decided not to be subject to taxation by the city. Improvements made by the city have been extended nearer to her land, and the western outfall sewer has been constructed through the northern part of it, but there is not now on or near to her land any such extent of population as to require the presence or protection of the municipal government; and while the improvements may, on account of their proximity, incidentally enhance the value of her land, they were not required, nor can we presume that they were made, to benefit her or any population near to her which can in any just sense be called a part of the city. The sewer is the only improvement made by the city that extends to her land, and that was made, as its extent and cost conclusively prove, as a part of the general system of sewerage of the city, and not because it was demanded by the population south of Broadway and west of Eighteenth Street, and whatever benefit property situated there derives from the sewer is incidental merely, and can not have constituted any part of the inducement to its location or construction. The same may be said of the extension of Broadway west of Eighteenth Street, and the improvement of Eighteenth Street as far south as appellant's land extends; and while it may |