cil, issued a proclamation advising the non- | swept away at once, for the taxes would be payment of drainage taxes until the validity void as to all lands above overflow from the thereof should be passed on by the supreme river unleveed, and as to all those which lie court, notwithstanding the previous judicial so low as to remain wet and untillable in the history of these transactions. In 1883 the absence of a supplemental system of draincouncil appointed a committee to investigate age, even after the completion of the levees. and report whether any drainage taxes were Admit the principle that these general assessbeing collected and by what authority, and ments or taxes are to be brought to the test published in their proceedings the report of particular benefits, and the most unexpect whereby it was declared the large amount of ed and disastrous consequences would follow. taxes due and outstanding were not collecti-Moreover, our criticism on the Irwin Case, as ble, and in which was set forth the method to its violation of contract rights already by which the assignees might get relieved fixed, applies to the Davidson Case, if possifrom the assessments. ble, with even greater force.

Such are substantially the charges made by the appellant to show that the City, after seeking and accepting the trust, was opposing its execution, instead of enforcing it. (3) By a claim that the decision of the Supreme Court in the case of Davidson v. New Orleans, 34 La. Ann. 176, to the effect that a judgment for a drainage tax will not be enforced where it is shown that the property received no benefit from the drainage, was a great hindrance, as its effect was to release from their liability for the assessment more than half of the first and third drainage districts and almost the whole of the second. The ground of the decision was the abandonment by the City of the work it was charged to do. It is manifest that the City cannot relieve itself of the obligation to collect the assessments avoided by its own default. To meet this proposition the appellee contends that the cost of completion would have been so great that the assessments would have been more than exhausted in completing the work, and the outstanding debt would have remained still unpaid. There were and are uncollected $1,423,235.31, including about $700,000 of the City's own assessment, which should, under the circumstances, be considered money in hand. The appellee states the amount necessary to have completed the system, as projected, "at nearly or quite $700,000." The dues of the City alone would have completed the work according to appellant's own statement and have left a balance for the benefit of warrant holders of about $725,000.

But the appellee also claims that when completed there would still have been lands in the district unbenefited, on which the total assessments would have amounted to $500,000, and that these assessments, according to the Davidson Case, would not have been collectible. If all that were correct, and if the City had no other resources for finishing of work than these assessments, still a margin of about $225,000 would have been left for the benefit of warrant holders. On the other hand, however, we cannot yield assent to the Davidson decision. We cannot and do not accept the proposition that where the Legislature passes on the necessity of a great public work like this, and organizes a district for its prosecution, the assessments made are void unless the property assessed is directly and evidently benefited. What question of that kind may exist, is a question of the district, not of the individual properties. The Davidson decision would wreck every work of a like character we ever knew. The entire levee systems of the Mississippi River would be

(4) By a claim that the Constitutional Amendment of 1874, which took effect on the 21st of January, 1875, in terms declared "that the City of New Orleans shall not hereafter increase her debt in any manner or form, or under any pretext." An answer to this claim we do not think necessary.

The next point calling for our consideration [371] is the proposition of appellee that the liability, if it existed, has been discharged, either directly by payment, or indirectly by an equitable set-off. It was upon this ground the circuit court proceeded, and upon this ground the opinion of the majority rests. This claim is based upon the fact that, proceeding under Act No. 73 of 1872, the City retired abont $1,600,000 of drainage warrants by issuing for them its own seven per cent fifty-year gold bonds. The claim resolves itself into two heads, one of payment and one of set-off. But in order to consider either it will be necessary to advert again to the history of those bonds. The Act of 1858, inaugurating the drainage enterprise, provided, as we have seen, for the expenses by an assessment on lands to be a lien on them reducible to judgment. The Act of 1859 authorized the issue of the bonds by the commissioners of each district, not to exceed $350,000 in each district, to the payment and purchase of which, and the payment of interest thereon, the assessments were exclusively devoted. Then followed the Act of 1861, which made the assessments personal liabilities on which, when reduced to judgment, common executions might issue. Then the Act of 1869 abolished the several boards of commissioners, in order to get rid of the obstruction arising from want of harmony among them, appointed a commissioner for the entire territory, and ordered the construction of the drainage canals to be paid from the assessments so collected. Then came the Act of 1871. It provides for certain canals and levees to be dug and constructed by the Mississippi and Mexican Gulf Ship Canal Company; for the supervision of the work, and the administration of the funds by the City; and for the application of the assessments when collected only to drainage. Here first appears the direction to draw warrants on account of work done; and it is directed that if warrants were not paid, on presentation, they should draw eight per cent interest. Provision was made for assessments in addition to those already levied.

During all this there was evidently felt the pressure of the actual fact that the assessments were not collected with sufficient regularity and promptness to meet the urgent demands

of a scheme so extensive, as well as of the want | assessed dues to the drainage fund, as well of a more acceptable security to contractors as discharged any liability it may have been [372] for the large expenditures entailed. There- under on account of its nonfeasance or misfeasance as statutory trustee of the fund. We cannot accept that view.

fore, two months after the passage of the Act
of 1871, the city ordinance provided that, "in
case the warrants issued for drainage works
to be done by the Mississippi and Mexican
Gulf Ship Company should not be paid with-
in one year out of the proceeds of the drainage
taxes and assessments, they should be fundable
in bonds of the City, bearing eight per cent
interest, payable semi-annually, having ten
years to run, and with due provision for retir-
ing the same, and securing the punctual pay-
ment of interest and gradual extinction of

Then followed Act No. 73 of 1872. This
is the Statute under which the bonds in fact
issued, and an analysis of which is indispen-
sable here. Its objects, as expressed in its
title, were, "To Authorize the Council of the
City of New Orleans to Levy a Police Tax;
to Regulate the Levies of Taxes. the Pro-
ceedings of Tax Suits and the Jurisdiction
of the District Courts for the Parish of Or-
leans in Reference thereto to Define and
Punish Forgery in Certain Cases; to Author-
ize the Funding of the Floating Debt; to
Consolidate, Limit and Provide for the Debt
of the City of New Orleans, Principal and In-
terest; to Authorize a Tax for the Support
of the City Government, and to Establish a
Fiscal Agency, Defining its Duties, and for
the Better Enforcement of the Collection of
All Taxes."

Section 13 of the Act runs thus:

"Sec. 13. Be it further enacted, etc., That for unbonded debts existing December 31, 1871, and unpaid at the time of the passage of this Act, or caused by receipts of certificates of 1871, for revenues proper of 1872, and for excavations and levees, drainage machinery and revetments authorized by law or required for the protection of the City from overflow and inundation the City may issue from time to time, as they may be required, bonds of the

It seems to us clear that it was not the intention of the Legislature that such should be the effect of the issue of those bonds. That intention must of course control, as it is a question of the power of the municipality to issue negotiable bonds. The section authorized a series of bonds to be issued, and directed "that the bonds thus issued shall be called the new consolidated debt of New Orleans." They were to constitute one debt, the consolidated debt, not a variety of debts, nor even two distinct debts; and the Statute manifestly proceeded on the idea that this one consolidated debt is to be paid, as all city debts are paid, out of the property of the City, and that without any express declaration to that effect. United States v. New Orleans, 98 U. S. 381.[25: 225]. The purposes for which the bonds were to be issued were: (1) for unbonded debts existing December 31, 1871, and unpaid at the time of the passage of the Act, or caused by receipts of certificates of 1871; (2) "for revenues proper of 1872;" (3) "and for excavations and levees, drainage machinery and revetments authorized by law, or required for the protection of the City from overflow or inundation, "-one as well as the other, one no less than the other.

Now, certain of those bonds were to be marked "Drainage Bonds." What bonds, and why? The Statute in words answers: "All ized by Act No. 30 of 1871, or by Drainage be lawfully so marked, except such as were Laws previously enacted." No bonds could issued "for excavations and levees;" not for drainage machinery or revetments; not even for excavations and levees to be thereafter made, unless they were such as the Statutes named authorized; not for excavations and levees previously made, since they were already settled for by warrants, whatever such warrants might be worth: still less for the debts or liabilities of the City, however they may have been incurred. The City could not properly thus mark any bonds issued for any purposes except those expressly limited in the Statute-those issued in payment for excavations and levees authorized to be made by the Act of 1871, and the preceding Acts. why? For a reason entirely in harmony with Statutes, and with the requirements of good the whole tendency of the entire series of faith to the contractors working under those for the purpose of expediting the work, and of giving increased value to those particular bonds.

issued for the excavations and levees author


denominations of five hundred and one thousand dollars, having fifty years to run and bearing seven per cent interest, principal and interest payable in gold in New York or New Orleans, and at any other points that the council may designate, with quarterly coupons, and that the bonds thus issued shall be called [373] the new consolidated debt of New Orleans. No bonds shall be issued but by authority of the council, nor for a lower rate than ninety cents on the dollar; all issued for excavations and levees, authorized by Act No. 30 of 1871, or by Drainage Laws previously enacted, shall be marked "Drainage Series," and all taxes collected for drainage, and not required for the payment of drainage warrants, shall be devoted to the purchase from the lowest bidder of bonds issued for drainage; no hid have only the force of warrants, and could The appellee contends that these bonds to be accepted above par, and the right reserved to the council to reject all unsatis-only be paid out of the proceeds of the assessments already made, notwithstanding they factory bids." had fifty years to run before payment could be demanded at all. Not so; they were privileged bonds in the series. And, beside the general liability of the City, the Statute provided that all the proceeds of assessments not needed to pay off warrants, if any, com

Proceeding under this Statute, the City issued about $1,600,000 of the drainage bonds, taking up therewith warrants issued for work done. It is claimed that in issuing those bonds the City thereby paid off both its own




under such conditions could the City have
made such a contract without a clear statutory
authority? We think not. If the Legislature
had designed to authorize the City to extin-
guish its own liability in this manner, it
would have said so.

ing in (and in doing which the issue of that
class was, pro tanto, prevented and rendered
unnecessary) should be an additional special
fund with which the City should purchase
said bonds before maturity at a price agreed
on not exceeding par, thereby giving the
bondholders, or some of them, if there were The remaining point to be noticed is that
any such excess of receipts, an option to get of the equitable set-off. The argument of
their money before maturity. Whether a the appellee on this line is as follows: The
sound one or not, such was clearly the scheme, Act of 1872 was only an enabling Act to
and it presupposed the continued existence terminate the power of the municipality to
and the continued collection of the assess-issue bonds of the same tenor as the war-
ments after the issue of the bonds; and rants which were taken up; that is to say,
plainly excludes the idea that such issue is payable out of the drainage fund if that
to extinguish the assessments, or any of them. should suffice. The case, as here regarded,
Not an intimation is given of any difference then, is clearly that of a trustee, who has, by
between one class of assessments and another error, issued securities for the advantage of
-those of the City and those of individuals. the cestui que trust. Having so issued the se-
Therefore, the City had no power to issue such curities, it must result, inevitably, that the
bonds for the purpose of paying the assess- City is to be credited with the amount to the
ments. It had, perhaps, the power to issue extent of which she has relieved the fund.
bonds of the unmarked sort for that purpose, It is obvious that the entire force of this
if Van Norden, the transferee of the com- argument rests on the proposition that the
pany's rights, had consented to receive them drainage bonds were to be issued, payable
for that purpose; but it was not claimed that only out of the drainage fund, and did not
this was done or tried. The question is, as import, as contemplated by the Statute, any
to the effect of the issuing of the marked direct liability on the City; also, that there
was no error in the act of issuing the bonds.
We have already, in the preceding passage,
analyzed the Statute, and shown that, accord-
ing to our view, a direct liability on the City
was exactly what was intended, the provis-

Moreover, in issuing these bonds the City
had no intention to pay its assessments there-
by; nor were they received with any such in-
tention or understanding by the receiver of
them. This is amply shown by the follow-ion as to the drainage fund in connection
ing facts:

(1) It was the regular custom to mark on the assessment rolls all the payments made. No such entry was made in this case.

(2) The issue of bonds, after they were authorized, was always and largely in excess of the homologated judgments against the City on its assessments.

(3) Judgments were being constantly. rendered against the City on her assessments, after she had issued bonds far ahead of even her claimed liability, yet she never presented any claim for payment.

(4) The city administrator of public accounts in his report to the city council, July 1, 1872, said that the City had already issued certificates for $485,081 of the new consolidated bonds, drainage series; and he states the amount due by the City for the streets to be $763,378.69, the total amount originally assessed against the City. On the theory of payment it would have been only $258, 297.69. To constitute payment, money or some other valuable thing must be delivered by the debtor to the creditor for the purpose of extinguishing the debt, and the creditor must receive it for the same purpose. Dodge v. Freedman's Sav. & T. Co. 93 Ủ. S. 376] 356 [23: 922]; Ketchum v. Duncan, 96 U. S. 659 [24: 868]; Carter v. Burr, 113 U. S. 737 [28: 1147]; Wood v. Guarantee Trust & S. D. Co. 128 U. S. 416 [32: 472]; Reg. v. Ashwell, L. R. 16 Q. B. Div. 224. These views are reinforced, if they need reinforcement, by the fact that the real question of payment or no payment lies between the City in its ordinary municipal capacity on the one hand and the City in its extraordinary capacity as statutory trustee on the other. Payment is a contract implying both proposal and acceptance; and

with those bonds being merely a cumulative
provision for them. That view, of course,
disposes of this argument, since it denies the
major premise.

Outside of the Statute we will mention
one or two facts confirmatory of the view that
it was not the intention to have the drainage
bonds paid from the assessments. First, as-
sessments in 1872 were less by or about
$200,000 than the known sum needed to com-
plete the system devised by the Act of 1871;
secondly, although the assessments were col-
lected while the bonds were issued, so slowly
and meagrely, as we have seen, that fact,
overwhelming if they were to constitute the
only resource for payment, seemed not to
have the slightest effect on either the City or
the contractor in this matter; and, finally,
the fact that the bonds were made payable
fifty years after date seems of itself a suffi-
cient contradiction of the idea that the only
source for payment at that late date were
these assessments.

We are therefore of the opinion that the court below erred in dismissing the bill. We think an account should have been stated on the basis indicated herein in its general outlines.

The City was trustee by statute, and can be called to account by any person in interest. Exactly how the decree, when rendered, and the ascertainment of liability thereby made should have been enforced, it is hardly worth while to discuss in a dissenting opinion. The usual remedy is by mandamus where a public body cannot be subjected to ordinary process. That is a matter of detail only. The fact that the public property could not be sold on execution is no reason for absolving the City altogether from lia




bility. The City should at least have paid
what it itself owed on the assessments in

Upon these grounds we feel constrained to
withhold our assent from the opinion and
judgment of the court.

PAT CALLAN, Plff. in Err.,


to the Supreme Court of Appeals of the State
of Virginia, except Dillard v. Moorman, No.
1638, which is a writ of error to the Corpora-
tion Court for the City of Lynchburg. A
motion is now made in each case by plaintiff
in error to advance, and a motion to dismiss
on behalf of defendant in error. It appears
from the motion papers that Callan v. Brans-
ford, Treasurer, No. 1271, was carried to the
court of appeals on writ of error to the Cor-
poration Court of the City of Lynchburg, and

JOHN W. BRANSFORD, Treasurer, etc. that Gregory v. Bransford, Treasurer, No.

WM. H. JONES, Piff. in Err.,



J. H. GREGORY ET AL., Piffs. in Err.,


BRANSFORD, Treasurer, etc.
MALLAN BROS., Plffs. in Err.,


BRANSFORD, Treasurer, etc.

LAWSON ET AL., Piffs. in Err.,


BRANSFORD, Treasurer, etc.

1595, Litchford v. Day, Sergeant, etc., No.
1598, and Lawson v. Bransford, Treasurer,
No. 1597, were taken to that court by appeal.

The writ of error in the one case, and the
appeals in the three others, were dismissed by
the court of appeals upon the ground that the
matters involved were purely pecuniary, and
that the amount in controversy in each case
was less than sufficient to give the court juris-
diction under the Constitution of the State.
This being so, we are of opinion that the writs
of error to that court must be dismissed, and it
will be so ordered.

The motion papers in Jones v. The Common-
wealth, No. 1594, Mallan Bros. v. Bransford,
Treasurer, No. 1596, and Dillard v. Moorman,
Treasurer, No. 1638, are not such that we can

LITCHFORD, Surviving Partner, etc., Piff. pass upon the motions to dismiss without re

in Err.,


DAY, Sergeant, etc.

J. J. DILLARD, Piff. in Err.,


E. S. MOORMAN, Treasurer, etc.

(See S. C. Reporter's ed. 197, 198.)

Writ of error to state court, when dismissed—
motion to dismiss, when denied.

1. Where a writ of error or appeal was dismissed
by the Supreme Court of Appeals of the State on
the ground that the amount in controversy was
not sufficient to give that court jurisdiction un-
der the Constitution of the State, this court will
dismiss the writ of error to that court.

2 Where the motion papers are not such that this
court can pass upon the motion to dismiss with-
out referring to the transcript on file, the motion
will be denied, but without prejudice.
[Nos. 1271, 1594, 1595, 1596, 1597, 1598, 1638.]
Submitted March 2, 1891. Decided March 9,


WRITS OF ERROR in the first six cases
to the Supreme Court of Appeals of Vir-
ginia and in the last case to the Corporation
Court of Lynchburg, Va.

On motions in each case by plaintiff in error
to advance, and by defendant in error to dis-
miss. Nos. 1271, 1595, 1597, 1598 dismissed.

ferring to the transcripts on file, which we
ought not to be obliged to do. These motions
and the motions to advance will be denied, but
without prejudice.

S. G. BAYNE ET AL., Piffs. in Err.,



(See S. C. Reporter's ed. 210-215.)

What is sufficient memorandum under the Stat-
ute of Frauds-Pennsylvania law as to ac-
knowledgment of deed.

1. Where, on a parol sale of land, plaintiff's agent
sent to defendant's agent a deed insufficiently
acknowledged containing a description of the
land in a letter demanding payment according to
the terms of the parol contract, and defendant's
agent replied by letter inclosing a deed like the
first one with sufficient certificate of ac-
knowledgment, requesting that this deed might
be executed and promising on receipt of it to
forward payment, this is a sufficient memoran-
dum, by both parties, to take the case out of the
Statute of Frauds.

[blocks in formation]

Motions in Nos. 1594, 1596, 1638 denied without Argued Jan. 20, 1891. Decided March 16, 1891.

Messrs. W. A. McKenney and W. W.
Larkin for motion to advance.

Mr. R. Taylor Scott in opposition.

Mr. R. Taylor Scott in support of motion to dismiss.

Mr. W. W. Larkin in opposition.

Fuller, Ch. J.:

'N ERROR to the Circuit Court of the United
States for the Western District of Pennsyl-

NOTE.-As to Statute of Frauds; what is sufficient
note or memorandum under,-see note to Barry v.
Coombe, 7:295.

As to delivery and acceptance necessary under the
Statute of Frauds, see note to Mahan v. United

These cases are brought here by writ of error States, 21:307.



vania to review a judgment for plaintiffs in | Pennsylvania, and in the office of the First
an action to recover the price of land sold to
defendants. Affirmed.

The facts are stated in the opinion.
Messrs. R. Brown, M. F. Elliott and F. E.
Watrous, for plaintiffs in error:

A contract for the sale of lands is within the Statute of Frauds, if parol testimony be required to establish any essential part of it. Mellon v. Davison, 123 Pa. 298; Hammer v. McEldowney, 46 Pa. 334; Ferguson v. Staver, 33 Pa. 411.

Specific performance of an unexecuted parol contract for the sale of land cannot be enforced by action for the purchase money.

Irvine v. Bull, 4 Watts, 287; Wilson V. Clarke, 1 Watts & S. 554; Dumars v. Miller,

34 Pa. 319.

A parol contract, though accompanied by payment of purchase money, conveys no interest that may be taken in execution.

Miller v. Specht, 11 Pa. 449.

In an action to recover damages for the breach of a parol contract to lease or sell land, the measure of damages is money paid or expenses incurred on the faith of the contract; if no money has been paid or expense incurred the damages are merely nominal.

McCafferty v. Griswold, 99 Pa. 270. Messrs. Wolf & George and S. A. Davenport, for defendants in error:

Neither the English Statute nor ours requires that the written agreement or memorandum of the sale should be sigued by both parties. Tripp v. Bishop, 56 Pa. 424; Coles v. cothick, 9 Ves. Jr. 234; Blagden v. Bradbear, 12 Ves. Jr. 466; Lowry v. Mehaffy, 10 Watts, 387; M'Farson's App. 11 Pa. 503.

The Statute of Frauds, and our Act of 1772, are satisfied by a note in writing not under seal and signed only by the party called on to fulfill it, if the other has accepted it.

National Bank of Bradford, of which Bayne
was president and Fuller vice-president,
Wiggins made an oral agreement with
Bayne and Fuller to sell the land for the
price of $10,000, half in cash (of which the
sum of $250 was at once paid to him) and
the other half in notes payable in three and
six months, with interest; and the follow-
ing memorandum of their agreement was
drawn up by Bayne, signed by his direction
by the cashier of the bank, and delivered to

"Bradford, Pa., November 21, 1883. Re-
vin, which is the cash payment on a lot of
ceived $4,750 from Bayne, Fuller and Mel-
70 acres of land sold to them by D. B. Wig-
gins for $10,000; the balance to be paid in
notes and money, as agreed on by both par-
ties. I am to remit this money and the notes
spoken of to said D. B. Wiggins on his for-
warding a good deed of said land. The
notes are to be $2,500 at 3 months and $2,500 [212]

at 6 months, both with interest. W. W.
Bell, Cashier."

Melvin was not present at that time, but
afterwards admitted, in conversation with
Wiggins and another person, that Bayne,
Fuller and himself were the purchasers; and
Bell acted as their agent, and one Hayes at
Buffalo as the plaintiffs' agent, throughout
the subsequent transactions.

On November 23, Wiggins and wife exeTre-cuted at Buffalo a deed to Bayne, Fuller and Melvin, dated November 22, of the land, describing it fully by metes and bounds, and expressed to be in consideration of the payment of $10,000; and acknowledged it before a notary public. But that deed was insufficient, under the law of Pennsylvania, to pass the title, because the notary's certificate did not state that he had made known its contents to the wife. Penn. Stat. February 24, 1770, §§ 2, 3; 1 Dall. Laws, 536, 537; 1 Purdon's Digest (11th ed.) 568, 569; Watson v. Mercer, 6 Serg. & R. 49: Hornbeck v. Mutual Bldg. & L. Asso. 88 Pa. 64; Enterprise Transit Co. v. Sheedy, 103 Pa. 492.

Bird v. Blosse, 2 Vent. 361; Moore v. Hart, 1 Vern. 201; Wankford v. Fotherley, 2 Vern. 322; Lowry v. Mehaffy, 10 Watts, 387; Knight v. Crockford, 1 Esp. 190; Saunderson v. Jackson, 2 Bos. & P. 239.

Mr. Justice Gray delivered the opinion of the court:

This was an action of assumpsit by D. B. Wiggins and Jane M. Wiggins, his wife, citizens of New York, against S. G. Bayne, J. M. Fuller and T. J. Melvin, citizens of Pennsylvania.

The declaration alleged that on November 21, 1883, Mrs. Wiggins sold, and the defendants agreed to buy, a tract of land, owned by her, and situated in Lafayette Township and McKean County in the State of Pennsylvania, for the price of $10,000, payable one half on delivery of the deed, one fourth in three months and the other fourth in six months, with interest; and that on November 28, 1883, she delivered to them a good and sufficient deed of the land, and possession of the same.

The evidence introduced by the plaintiffs at the trial was to the following effect: Wiggins and wife resided near Buffalo in New York, and she was seised of the land in question under a recorded deed.

On November 21, 1883, at Bradford in

On the same day, Hayes sent that deed to Bell in a letter, saying: "I inclose for collection and remittance deed of J. M. and D. B. Wiggins, for which please remit us your draft on New York, $4,750, and two notes given by Bayne, Fuller and Melvin, $2,500 each, at 3 and 6 months, with interest, to order D. B. Wiggins."


On Saturday, November 24, Bell replied to Hayes: Yours of 23d inst. is at hand. The search is taking longer than expected, but will probably be completed by Monday.'

On Tuesday, November 27, Bell wrote to Hayes, inclosing an unsigned deed, substantially similar to the first one, except that the certificate of acknowledgment was according to the law of Pennsylvania; and saying in his letter: "I inclose a deed that Bayne, Fuller and Melvin's attorney wishes executed in place of the one sent by you, on receipt of which I will forward money, notes and old deed. This is a Pennsylvania form, and the other is a New York one."

On November 28, Wiggins and wife signed

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