supported by his own oath, for the refunding | viewed by this court. Norris v. Jackson, 9 to him of the moneys so exacted as taxes. No Wall., 125 [76 U. S., XIX., 608]. decision was ever made on the claim. The court found, as conclusions of law: 1, that the tax was illegally exacted; 2, that the action was barred by section 44 of the Act of June 6, 1872, ch. 315, 17 Stat. at L., 257. A judgment was rendered for the defendant. To reverse that judgment the plaintiff brought this writ of error. The defendant in error asks that, if the judgment be reversed, the case be remanded, so that the Statute of Limitations may be pleaded. Without passing on the question as to whether the statute invoked would furnish a defense in this case, we are of opinion that no ground exists for the course suggested. The record shows that the defendant's attorney had notice, by the declaration, that the plaintiff's claim accrued before a date more than eight years prior to the filing of the plea. Under such circumstances. it would not be a fair exercise of discretion not to hold the defendant to his legal status. The judgment is reversed and the case is remanded to the Circuit Court, with directions to enter a judgment for the plaintiff for $61.30, with interest according to the law of the State of New York. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. Cited-112 U. S., 165. CHARLES A. SNYDER, Appt., There is in the record a bill of exceptions, which shows that, after the plaintiff had given evidence to establish the facts so found, the defendant offering no testimony, the plaintiff requested the court to render judgment for the plaintiff; but the court refused, and the plaintiff excepted, and the court directed a judgment for the defendant, and the plaintiff excepted. We are of opinion that the plaintiff was not liable to this tax, because he did not carry on or do an express business, within the meaning of the statute. Although he carried goods between New York and Brooklyn, and from one place to another in either city, he did so solely on call and at special request. He did not run regular trips or over regular routes or ferries. He was no more than a drayman or truckman, doing a job when ordered. The fact that he had a place in Brooklyn where orders could be left on a slate made no difference. The words "express business," in the statute, must have the meaning given them in the common acceptation. An "express business" involves the idea Injunction against collecting tax-suit for illegal of regularity, as to route or time or both. Such is the definition in the lexicons. Whether, if the plaintiff had held out to the world, at any place of business, that he was carrying on an "express" or was doing an "express business," or had so designated himself by inscription on his vehicle or vehicles, that would have made any difference, it is not necessary to inquire, because no such thing was shown. As to the defense of the Statute of Limitations, it was not pleaded, nor brought to the attention of the court, as a defense, at the trial. It was not within the issue raised by the plea of the general issue, which was the only issue to which the stipulation for a trial by the court extended. It is well settled that, in the absence of a contrary rule established by statute, a defendant who desires to avail himself of a statute of limitation as a defense, must raise the question either in pleading, or on the trial, or before judgment. Storm v. U. S., 94 U. S., 76, 81 [XXIV., 42, 44]; Upton v. McLaughlin, 105 U. S.. 640 [XXVI., 1197]. Such was always the law in New York, and no contrary rule was in force in New York, by statute, at any time after this suit was brought. When the testimony at the trial closed, and the plaintiff asked for a judgment in his favor, he was entitled to it. It is proper that the circuit court should be directed to enter such a judgment. The conclusion of law, by the circuit court, that the tax was illegally exacted, being a correct conclusion, and its conclusion that the suit was barred by limitation being an incorrect conclusion, it follows that the plaintiff was entitled to judgment on the facts found. The special findings of fact were equivalent to a special verdict, and the question thereon was whether they required a judgment for the plaintiff or the defendant. This was a matter of law, the ruling on which can be re v. MORRIS MARKS, Collector of Internal Revenue for the DISTRICT OF LOUISIANA. (See S. C., Reporter's ed., 189-194.) taxes. * A bill in equity will not lie to enjoin a Collector of Internal Revenue from collecting a tax assessed by the Commissioner of Internal Revenue against a manufacturer of tobacco, although the tax is alleged in the bill to have been illegally assessed. [No. 94.] Submitted Nov. 1, 1883. Decided Nov. 12, 1883. APPEAL from the Circuit Court of the United States for the District of Louisiana. The history and facts of the case fully appear in the opinion of the court. Messrs. Wm. Grant and J. D. Rouse, for appellant. Mr. Wm. A. Maury, Asst. Atty-Gen., for appellee. Mr. Justice Blatchford delivered the opinion of the court: This suit was brought in a state court of Louisiana by the appellant, a tobacco manufacturer, against the appellee, a Collector of Internal Revenue, to obtain an injunction restraining the appellee from seizing and selling the property of the appellant to pay two assessments of taxes against him, made by the Commissioner of Internal Revenue, and to have the assessments declared void. An injunction having been granted ex parte, the appellee removed the suit, by certiorari, into the Circuit Court of the United States for the District of Louisiana, on the allegation that it was brought on account of acts done by the appellee, as such Collector, under authority of the internal revenue laws of the *Head note by Mr. Justice BLATCHFORD. NOTE.-When taxes illegally assessed can be recoered back. See note to Erskine v. Van Onsdale, 82 U. S., XXI., 63. United States, and to enjoin him, in his official | which was ample security, while he was withcapacity, from enforcing the payment of assess-out adequate remedy against the United States ments made against the appellant, under authority of such laws, by executing warrants of distraint, as authorized by such laws. After the removal of the suit the appellant, under an order to reform his pleading, filed a bill in equity in the circuit court. It set forth the assessments, complained of as being in these words: "Alphabetical list of persons liable to tax under the internal revenue laws of the United States, in the collection district of the State of Louisiana, reported by the Collector of said district for assessments, and the amount assessed against each by the Commissioner of Internal Revenue, and certified to the Collector of said district, for the month of October, 1879. The bill also averred that the assessments did not show upon what they were based nor upon what the taxes were claimed to be due and were void for uncertainty and unauthorized by law, and the Commissioner of Internal Revenue was without jurisdiction to make them; that the Irwin & Snyder assessment was made more than fifteen months after the time which it embraced had elapsed, and that was true, also, as to a part of the Snyder assessment, and the commissioner had no authority to make an assessment except for a period of time not exceeding fifteen months before it was made; that the appellant was never a member of the firm of Irwin & Snyder; that he never owed the amount of either assessment; that, when he commenced the manufacture of tobacco, he gave a bond to the United States in a penalty of $20,000, conditioned that he would stamp all tobacco manufactured by him, as required by law, and comply with all the requirements of law relating to the manufacture of tobacco, and the sureties thereon were solvent, and that, if the United States had any lawful claim against him, an action would lie on the bond, for the seizure of his property to pay the claims. The prayer of the bill was for a decree declaring each of the assessments void as against the appellant, and enjoining the appellee from distraining on the property of the appellant for the purpose of collecting the amounts of the assessments, and from attempting to collect the same except by judicial process. The appellee demurred to the bill for want of equity, and because no suit could be maintained in any court to restrain the collection of any tax of the United States, and the appellant could not be permitted in this suit to attack the validity or regularity of the assessments or restrain the execution of a warrant issued thereunder. The circuit court sustained the demurrer and dismissed the bill. To review its decree, this appeal is brought. The sole object of the suit is to restrain the collection of a tax which purports to have been assessed under the internal revenue laws. A decree adjudging the tax to be void as against the appellant is sought for only as preliminary to relief by injunction, and would be futile for any purpose of this suit unless followed by an injunction. The internal revenue Act of July 13, 1866, ch. 184, 14 Stat. at L., 152, provided (sec. 19) as follows: "No suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the Commissioner of Internal Revenue, according to the provisions of law in that regard, and the regulations of the Secretary of the Treasury, established in pursuance thereof, and a decision of said Commissioner shall be had thereon, unless such suit shall be brought within six months from the time of said decis ion, or within six months from the time this Act takes effect; Provided, That if said decision shall be delayed more than six months from the date of such appeal, then said suit may be brought at any time within twelve months from the date of such appeal." By section 10 of the Act of March 2, 1867, ch. 169, 14 Stat. at L., 475, it was enacted that section 19 of the said Act of 1866 be amended "by adding the following thereto:" "And no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court." In the Revised Statutes this amendment of and addition to section 19 of the Act of 1866 is made a section by itself (section 3224), separated from that of which it is an amendment and to which it is an addition, and reads thus: "No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." The word "any" was inserted by the revisers. This enactment in section 3224 has a no more restricted meaning than it had when, after the Act of 1867, it formed a part of section 19 of the Act of 1866, by being added thereto. The first part of section 19 related to a suit to recover back money paid for a tax alleged to have been erroneously or illegally assessed or collected, and the section, after thus providing for the circumstances under which such a suit might be brought, proceeded, when amended to say, that “No suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court." The addition of 1867 was in pari materia with the previous part of the section and related to the same subject-matter. The tax spoken of in the first part of the section was called a tax sub modo, but was characterized as a "tax alleged to have been erroneously or illegally assessed or collected." Hence, when, on the addition to the section, a tax was spoken of, it meant that which is in a condition to be collected as a tax, and is claimed by the proper public officers to be a tax, although on the other side it is alleged to have been erroneously or illegally assessed. It has no other meaning in section 3224. There is, therefore, no force in the suggestion that section 3224, in speaking of a tax, means only a legal tax; and that an illegal tax is not a tax, and so does not fall within the inhibition of the statute, and the collection of it may be restrained. The statute clearly applies to the present suit and forbids the granting of relief by injunction. It is distinctly alleged in the bill that the appellee claims that the appellant owes to the United States the amounts assessed for taxes, both the tax assessed against the appellant and that assessed against Irwin & Snyder. The bill also shows sufficiently that the assessment had relation to the business of the appellant, as a manufacturer of tobacco, and to his liability to tax, under the internal revenue laws in respect to such business. The instructions of the Internal Revenue Department in regard to the preparation of assessment lists provided, that where an assessment was reported against a manufacturer of tobacco for having removed any taxable articles from his manufactory without the use of the proper stamp, or for not having duly paid such tax by stamp at the time and in the manner provided by law, the entry in the column headed "article or occupation should be "Stamp Tax. Tob.," with liberty to use the initials "S. T." as an abbreviation for "stamp tax. The instructions stated that "Tob." is an abbreviation for "tobacco." Resort may be had to these instructions to show the meaning of the abbreviations in the assessment list. Read by the light of the instructions, the list shows a tax which the appellant might be liable to pay, and one which the commissioner had general jurisdiction to assess against him. The inhibition of section 3224 applies to all assessments of taxes, made under color of their offices, by internal revenue officers charged with general jurisdiction of the subject of assessing taxes against tobacco manufacturers. The remedy of a suit to recover back the tax after it is paid, is provided by statute, and a suit to restrain its collection is forbidden. The remedy so given is exclusive, and no other remedy can be substituted for it. Such has been the current of decisions in the Circuit Courts of the United States, and we are satisfied it is a correct view of the law. Howland v. Soule, Deady, 413; Pullan v. Kinsinger, 2 Abb., U. S., 94; Robbins v. Freeland, 14 Int. Rev. Rec., 28; R. R. Co. v. Prettyman, 17 Id., 99; U. 8. v. Black, 11 Blatchf., (C. C.), 543; Kissinger v. Bean, 7 Biss., 60; U. S.v. R. R. Co., 4 Dill., 69; Alkan v. Bean, 23 Int. Rev. Rec,, 351; Kensett v. Stivers, 18 Blatchf. (C. C.), 397. In Cheatham v. U. S., 92 U. S., 85, 88 [XXIII., 561, 562], and again in State Railroad Tax Cases, Id., 575, 613 [XXIII, 663, 673], it was said by this court, that the system prescribed by the United States in regard to both customs duties and internal revenue taxes, of stringent measures, not judicial, to collect them, with appeals to specified tribunals and suits to recover back moneys illegally exacted, was a system of corrective justice, intended to be complete and enacted under the right belonging to the government, to prescribe the conditions on which it would subject itself to the judgment of the courts in the collection of its revenues. In the exercise of that right, it declares by section 3224, that its officers shall not be enjoined from collecting a tax claimed to have been unjustly assessed, when those officers, in the course of general jurisdiction over the subjectmatter in question, have made the assessment, and claim that it is valid. The decree of the Circuit Court is affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. *1. A defendant, against whom a judgment has been rendered on default by a Circuit Court of the United States, in an action at law, cannot maintain the plaintiff at law falsely and fraudulently alleged a bill in equity to avoid it, upon the ground that that the parties were citizens of different States, without showing that the false allegation was unknown to him before the judgment. 2. Upon a negotiable promissory note made by an agent, in his own name and not disclosing on its face the name of the principal, no action lies against the principal. 3. In an action at law, the declaration alleged that the plaintiff sold land to a third person, who gave his notes for the purchase money, secured by mortgage of the land; that afterwards the defendant, in a suit by him against that person, claimed the ownership of the land, and alleged that the other person, acting merely as his agent, illegally made the purchase in his own name, and that he was liable and ready to pay for the land; that he was, thereupon, adjudged to be the owner of the land, and took possession thereof; and that, by reason of the premises, the defendant was liable to the plaintiff in the full amount of the notes. Held, that the declaration showed no cause of action, even under article 1890 of the Civil Code, and article 35 of the Code of Practice of Louisiana. laration setting forth no cause of action, may be 4. A judgment, rendered on default, upon a dec *Head notes by Mr. Justice GRAY. reversed on writ of error, and the case remanded | the appellant's bill, the court was powerless to with directions that judgment be arrested. [Nos. 92, 93.] Argued Nov. 1, 1883. re-open the judgment and had lost control of it. Bank v. Moss, 6 How., 37; Crabtree v. Neff, Decided Nov. 12, 1883. 1 Bond, 554. IN ERROR to the Circuit Court of the United States for the District of Louisiana. And, APPEAL from the Circuit Court of the United States for the District of Louisiana. The history and facts of the case fully appear in the opinion of the court. Messrs. Wm. Grant and J. D. Rouse, for plaintiff in error and appellant: The general rule is that a judgment upon a declaration, which does not aver a promise, will be set aside, even after verdict on issue joined. Myers v. Davis, 6 Blatchf., 77; Candler v. Rossiter, 10 Wend., 488. "No fact once tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." U. S. Const., 7th Amend.; Parsons v. Bedford, 3 Pet., 433; Crim v. Handley, 94 U. S., 657 (XXIV., 217); Bank v. Moss, 6 How., 37. Complainant has been at fault and thus lost all remedy. Crim v. Handley (supra); Truly v. Wanzer, 5 How., 142; 2 Story, Eq., 9th ed., sec. 887; R. R. Co. v. Neal, 1 Woods, 353; Searles v. R. R. Co., 2 Woods, 621; Brown v. Buena Vista, 95 U. S., 159 (XXIV., 422). The law will not create a promise in plead-it is: that one cannot be heard by way of action "If anything be settled in our jurisprudence, ing. Ninan v. Bland, 3 Smith, 114; Morris v. Norfolk, 1 Taunt., 217; Buckler v. Angil, 1 Lev., 164. An action will not lie against one person, upon a covenant which purports to have been made by another. Beckham v. Drake, 9 Mees. & W., 79; Spencer v. Field, 10 Wend., 88; Townsend v. Hubbard, 4 Hill, 351; see, also, Fowler v. Shearer, 7 Mass., 14; Elwell v. Shaw, 16 Mass., 42; Brinley v. Mann, 2 Cush., 337, Kimball v. Tucker, 10 Mass., 192; Stackpole v. Arnold, 11 Mass., 27. In New York and Massachusetts the rule is so strictly enforced that the maker of a note, who describes himself as agent of a particular person, is held to bind himself and not the principal. De Witt v. Walton, 9 N. Y., 571; Barker v. Ins. Co., 3 Wend., 94; Pentz v. Stanton, 10 Wend., 271; R. R. Co. v. Benedict, 5 Gray, 566; Taber v. Cannon, 8 Met., 456; Brown v. Parker, 7 Allen, 337; Bradlee v. Glass Co., 16 Pick.,347; Bass v. O'Brien, 12 Gray, 477; see, also, Metcalf v. Williams, 104 U. S., 93 (XXVI., 665); McTyer v. Steele, 26 Ala., 487; Merch. Bank v. Cent. Bank, 1 Ga., 418; McDonald v. Bear River Co., 13 Cal., 220; Garrison v. Combs, 7 J. J. Marsh., 84; 1 Dan. Neg. Inst., sec. 303. Messrs. Joseph P. Hornor, W. S. Benedict and Francis W. Baker, for defendant in error and appellee: It has been held for many years, that if the defendant dispute the allegation of citizenship in the declaration, he must plead the fact in abatement of the suit. Jones v. League, 18 How., 81 (59 U. S., XV., 264); Wythe v. Myers, 3 Sawy., 599. The Term at which the judgment had been rendered, having expired before the filing of Ins. Co., 3 Wend., 94; S. C., 20 Am. Dec., 664; Pentz v. Stanton, 10 Wend., 271; S. C., 25 Am. Dec., 558; De Witt v. Walton, 9 N. Y., 571; Beckham v. Drake, 9 Mees. & W., 79: Stackpole v. Arnold, 11 Mass., 27; S. C. 6 Am. Dec., 150; Briggs v. Partridge, 64 N. Y., 357; Eastern R. R. Co. v. Benedict, 5 Gray, 566. There can be no recovery on a note or bill against one whose name does not appear upon it. When an agent acts in his own name, he binds himself and not his principal. Thomas v. Bishop, 2 Str., 955; Allen v. Coit, 6 Hill, 318; Barlow v. Bishop, 1 East, 432; S. C., 3 Esp., 266; Leadbitter v. Farrow, 5 Maule & S., 345. An agent accepting a bill in his own name binds himself and not his principal. Bk. of Rochester v. Monteath, 1 Denio, 401; 8. C., 43 Am. Dec., 681. in nullity, to destroy a judgment for matters known and in existence at the time of the institution of the suit in which the judgment was rendered, even though, by some neglect, they may not have been pleaded." Succession of Lebrew, 31 La. Ann., 214; Perry v. Rue, 31 La. Ann., 287. Mr. Justice Gray delivered the opinion of the court: These two cases have been argued together. Eliza A. Quitman, the defendant in error and appellee, having died since the judgment below, William S. Lovell, her executor, has appeared in her stead. In the action at law, she filed a petition against George D. Cragin in the Circuit Court of the United States for the District of Louisiana, alleging that she was a citizen of New York and he was a citizen of Louisiana; that, on the 31st of January, 1878, she sold a plantation to Orlando P. Fisk for the price of $22,500, of which the sum of $4,500 was paid in cash, and for the rest of which nine notes of Fisk were given, for $2,000 each, payable in successive years and secured by a mortgage of the estate; that Cragin had paid the first three of the notes, and the petitioner, by foreclosure and sale of the estate under the mortgage, had obtained the sum of $10,447.05, to be credited on the remaining notes under date of May 1, 1874; and further alleging as follows: "Now your petitioner represents that George D. Cragin is and was the real owner of said property and liable to your petitioner, for the following reasons, riz.: That subsequently to the said purchase of property by said Fisk, by a certain proceeding filed in this honorable court, the said Cragin An agent is liable on a note given by him in his principal's name without authority. Rossiter v. Rossiter, 8 Wend., 494; S. C., 24 Am. Dec., 62; Bartlett v. Tucker, 104 Mass., 336; Dusenberry v. Ellis, 3 Johns. Cas., 70; S. C., 2 Am. Dec., 144; Dung v. Parker, 52 N. Y., 499; Collen v. Wright, 8 E. & B., 647; Hochster v. Baruch, 5 Daly, 440. If an agent in the course of his agency sign a bill in his own name, he and not the principal is liable. Joynson v. Richard, 12 J. & Sp., 20; Newhall v. Dunlap, 14 Me., 180; S. C., 31 Am. Dec., 45. The character in which a person draws a bill may be shown as between himself and his principal, though he may be personally liable to third persons Newhall v. Dunlap, 14 Me., 180; S. C., 31 Am. Dec., 45. struments, but, on the contrary, in the connection in which it is used and applied to notes given for the purchase money of land and secured by mortgage thereof, designates, as was assumed by both counsel at the argument, negotiable promissory notes, bearing no name but that of Fisk, as maker; and on such notes no action will lie against any other person. Nash v. Towne, 5 Wall., 689, 703 [72 Ú. S., XVIII., 527, 530]; Williams v. Robbins, 16 Gray 77; In Re Adansonia Fibre Co., L. R. 9 Ch., 635; Dan did claim the entire ownership of the said prop- | does not show that they were not negotiable inerty and did claim that the purchase made in the name of the said Fisk was illegally entered in his own name by said Fisk, who was acting merely as the agent of said Cragin, and that the amount of the purchase price of said property paid in cash, as well as the first and second notes aforesaid, were made by said Fisk with the money of said Cragin, and that he, said Cragin, was liable for and ready to pay for said property; that thereafter, in due course of law and after proper proceedings, the said Cragin was adjudged by this honorable court, by final de-iels v. Burnham, 2 La., 243, 245. The case does cree, to be the owner of said property, and the matters and things in said petition contained were found to be true and correct. That, pending said proceedings, the said George D. Cragin was in said case appointed the receiver of the said plantation, so sold by your petitioner as aforesaid; and that, acting as such receiver, and subsequently as such owner of said plantation, he did remove therefrom all the movable property thereon and which existed thereon at the date of the sale, by your petitioner, to said Fisk, of a value exceeding $1,000, and did lay waste and dilapidate the said property, to benefit his adjoining plantation, and to the detriment of your petitioner's rights. Petitioner further avers, that, by reason of the causes aforesaid, the said George D. Cragin is liable and indebted unto your petitioner in the full amount of said notes, less the credit due as aforesaid, for which amicable demand has been made without avail." The record shows that Cragin was served with process in Louisiana and, not appearing, was defaulted, and judgment was rendered for the plaintiff in the sum claimed, which was shown by computation and agreement of counsel to be $6,888.40, and the defendant sued out a writ of error, which is the first of the cases before us. The other case is an appeal from a decree of the same court, dismissing upon demurrer a bill in equity, filed by Quitman against Cragin, to annul and avoid the judgment aforesaid and to restrain the issue of execution thereon. The bill set forth the proceedings in the suit at law; and its only other material allegations were, that the circuit court had no jurisdiction of that suit, because both parties were citizens of New York; and that Quitman, knowing that fact, falsely and fraudulently alleged Cragin to be a citizen of Louisiana, and illegally and unjustly obtained judgment by default against him. It is quite clear that the bill in equity was rightly dismissed, because it contains no allegation that Cragin did not know, before the judgment against him in the suit at law, that the plaintiff in that suit alleged that he was a citizen of Louisiana. If he did then know it, he should have appeared and pleaded in abatement; and equity will not relieve him from the consequence of his own negligence. Jones v. League, 18 How., 76 [59 U. S., XV., 263]; Crim v. Handley,94 S., 652 [XXIV., 216.] The decree in the suit in equity must, therefore, be affirmed. not come within the decisions in Mechanics' Bank v. Bank of Columbia, 5 Wheat., 326, and in Metcalf' v. Williams, 104 U. S., 93 [XXVI., 665], in each of which the name of the principal appeared upon the face of the note. If the action is treated, not as an action upon the notes themselves, but as an action to recover the amount of the notes, by reason of a subsequent agreement of Cragin to pay them, the plaintiff fares no better. The only allegations touching the relation of Cragin to these notes are that, in a suit by him against Fisk, he alleged that Fisk in purchasing the land acted merely as his agent, and that he owned the land and was liable and ready to pay for it; and that he was, thereupon, adjudged to be the owner of the land and took possession thereof. If this amounted to a promise to anyone, it was not a promise to the plaintiff, nor even a promise to Fisk to pay to the plaintiff the amount of the notes; but it was, at the utmost, a promise to Fisk to pay that amount to him or to indemnify him in case he should have to pay it. It is, therefore, not within the provisions of the Louisiana Codes, cited in argument;* and the defendant is liable to an action at law by Fisk only, and not by the plaintiff. Nat. Bk. v. Grand Lodge, 98 U. S., 123 [XXV., 75]; Bank v. Rice, 107 Mass., 37; M' Cauley v. Hagan, 6 Rob. (La.), 359. The final allegation that, by reason of the causes aforesaid, the defendant is indebted and liable to the plaintiff, is a mere conclusion of law, which is not admitted by demurrer or default. Hollis v. Richardson, 13 Gray, 392. The judgment having been rendered on default, upon a declaration setting forth no cause of action, may be reversed on writ of error. McAllister v. Kuhn, 96 U. S., 87 [XXIV., 615]; Hollis v. Richardson, above cited; La. Bank v. Senecal, 9 La., 225. This court, on reversing a judgment of the circuit court, may order such judgment for either party as the justice of the case may require. R. S., sec. 701; Ins. Co. v. Boykin, 12 Wall., 433 [79 U. S., XX.. 442]. In the case at bar, the order, following the precedent advantage for a third person the condition or con*"A person may also, in his own name, make some sideration of a commutative contract or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked." La. Civil Code, 1870, art. 1890. U.mediately arise from a contract, but from equity "An equitable action is that which does not imin favor of a third person, not a party to it, and for whose benefit certain stipulations have been made; thus, if one stipulated in a contract, entered into that contract, that this person should pay a certain with another person, and as an express condition of sum on his account or give a certain thing to a third person, not a party to the act, that third person has tracted the obligation, to enforce the execution of an equitable action against the one who has conthe stipulation." La. Code of Pr., art. 35. But it is equally clear that the judgment at law is erroneous. The petition shows no privity between the plaintiff and Cragin. It alleges no promise or contract by Cragin to or with the plaintiff. The mere description of the notes, received by the plaintiff, as "notes of Fisk" |