
    THE STATE, THE RAHWAY SAVINGS INSTITUTION, PROSECUTOR, v. THE COMMON COUNCIL OF THE CITY OF RAHWAY.
    Tlie operation of a mandamus against the city council being arrested after its service, by an arrangement made between the council and the party obtaining the mandamus, the council will not be attached for failing to obey the mandamus.
    
    Application for attachment.
    Argued at November Term, 1887,
    before Justices Depue, Van Syckel and Knapp.
    Eor the relator, B. A. Vail.
    
    Eor the defendants, Garret Berry.
    
   The opinion of the court was delivered by

Van Syckel, J.

On the 10th day of May, 1887, this 'court sent a mandamus to the common council of the city of Rahway, commanding that the sum of $5000 be put in the tax levy for that year to pay to the Rahway Savings Institution the interest on the water bonds held by it. The mandamus was duly served June 16th, 1887. On the 9th of June the savings bank made to the city council an offer of compromise on the said bonds, conceding a very material reduction in the accrued interest, and a reduction of the future interest from seven to four per cent, per annum. The common council agreed to accept this proposition in a modified form, and on the 5th of July ordered that adjustment bonds of the city be issued to effect the compromise.

On the 12th day of July the common council received from the savings bank a written communication stating that the ■Chancellor had appointed a master to ascertain and report whether it was advisable for the bank to compromise the water bonds of the city, and that until such report was made it would be improper for the bank to make or entertain any ■offer of compromise, wherefore the common council would «consider the offer of June 9th withdrawn.

After the service of the mandamus the council passed the tax ordinance without including in it the aforesaid sum of $5000 or any part thereof.

On the 25th of July the members of the common council were ordered to show cause why they should not be attached for contempt in refusing to obey the mandamus. The appli■cation now is for such attachment.

It seems clear to us that this application must be denied. After the service of the mandatory writ of this court the relators intervened and arrested its operation by submitting :a proposition for amicable adjustment. That arrangement, if -consummated, would have rendered compliance with the mandate of this court unnecessary. The matter remained for some time in the course of negotiation, and although the notice of ■July 12th withdrew the offer of compromise, the common ■council had a right to infer from the language of the notice that the offer to compromise would be renewed in such form us the Chancellor might deem advisable.

If the savings bank had given notice that it would insist «upon immediate compliance by the council with the requirement of the mandamus, the aspect of the ease would be different. In the absence of such notice the intention to be in contempt ought not to be imputed to the defendants.

The application should be refused, with costs.  