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construed so as to prevent the issue of drain- | review a judgment reversing a judgment o age warrants to the transferee of the drain- the United States Circuit Court for the Eastage contract, payable only from drainage ern District of Louisiana in favor of detaxes, should receive a construction com- fendant in an action brought to enforce a mensurate with the object intended to be accomplished, and will authorize the issue of liability of the city for breach of its contract to facilitate the collection of drainage asplant in case the city decides to do the work sessments and apply the proceeds to payitself, where the debt created by the drainagement of plaintiff's warrants. Modified and assessments had already been incurred and affirmed. put in judgment.

warrants in payment for the contractor's

12. A court will not set aside a contract by a municipal corporation for the purchase of property which has been delivered to it, upon the ground that it made a bad bargain and paid more than the property was worth, and that the action of the common council was dictated by improper motives.

13.

14.

See same case below, 52 U. S. App. 348, 81 Fed. Rep. 645, 26 C. C. A. 508.

Statement by Mr. Justice Brown:

*This was a bill in equity filed November[122 26, 1894, in the circuit court for the eastern district of Louisiana by John G. Warner, a Presentation of drainage warrants for citizen of the state of New York, on behalf payment or indorsement, as provided by stat- of himself and all other parties holding obliute, is necessary to start the running of in-gations of the same nature and kind as himterest under a statute providing that they self, to charge the city of New Orleans as shall be paid out of a particular fund when the debtor of specific taxes averred to have presented, and in case the fund is not suffi- been levied by lawful authority for the pay. cient that fact shall be indorsed upon them ment of certain warrants, issued for the pur by the proper officer, and that they shall bear chase of a drainage plant and franchise, the interest from such indorsement, where the collection of which was made the duty of city has merely abandoned the work for which the assessments to pay the warrants petitioner by statutes hereinafter set forth. were to be collected, and has not repudiated A liability on the part of the city was or disabled itself from performing its obliga- averred as the result of a contract alleged to have been broken by it, and a disregard and violation of duties imposed upon it by statute as to the prosecution of the work of drainage and the collection of assessments therefor.

tion.

Commencement of suit upon a drainage warrant which, by the terms of the statute under which it was issued, is to bear interest above the legal rate from the time it is presented for payment and the fact of lack of funds is indorsed thereon, is a sufficient demand to make the warrant carry interest from that time at the specified rate.

The facts of the case are so fully set forth in the cases of Peake v. New Orleans, 139 U. S. 342, 35 L. ed. 131, 11 Sup. Ct. Rep. 541, and Warner v. New Orleans, 167 U. S. 467. 42 L. ed. 239, 17 Sup. Ct. Rep. 892, that a succinct statement of such facts, taken largely from the opinion of the circuit court Argued March 13, 1899. Decided November of appeals, is all that is deemed necessary

[No. 172.]

13, 1899.

here.

By an act approved March 18, 1858, the ERTIORARI to the United States Circuit legislature of Louisiana provided for a sys

Appeals the

erty. City lots may be expressly exempted by statute. Meridian v. Phillips, 65 Miss. 362, 4 So. 119.

the theory of benefits received, and when exempt it is so because a strict interpretation of the statute will not permit the assessment. People ex rel. Little v. Trustees of Schools, 118 Ill. 52, 7 N. E. 262; Toledo v. Toledo Bd. of Edu. 48 Ohio St. 83, 26 N. E. 403; School Dist. v. Board of Improvement, 65 Ark. 343, 46 S. W. 418.

It may be liable according to the construction (Michener Philadelphia, 118 Pa. 535, 12 Atl. 174), or it may be exempt because of the construction, as, for example, a public common was held to be exempt from local assessment because it was a lot not owned by a "person or persons" within the express provisions of the legislature for assessing lots that fronted upon the improvement. McGonigle v. Alle-lic Schools v. St. Louis, 26 Mo. 468. gheny, 44 Pa. 118, 121.

Where public school property is held liable to local assessment the argument that it is taxing all the property within the district, and is therefore illegal, has no force. St. Louis Pub

The principle underlying the cases in which Assessments on property devoted to the use the exemption of public property from liability of public schools are governed by the same rules for local improvements is implied, is that such that control in regard to other public property; implication will only arise when the property is where no remedy is given for the nonpayment of actually appropriated to public use. When it such assessment school property is held to be is not in public use, and especially when it is not assessable for local improvements. Board the source of an income to private persons, of Improvement v. Little Rock School Dist. 56 Ark. 354, 16 L. R. A. 418, 19 S. W. 969: Louis-emption arising, it follows that the liability ville v. Leatherman, 99 Ky. 213, 35 S. W. 625; Poock v. Ely, 4 Ohio C. C. 41; Toledo v. Toledo Bd. of Edu. 48 Ohio St. 83, 26 N. E. 403; Toledo Bd. of Edu. v. Toledo, 48 Ohio St. 87, 26 N. E. 404.

As in other cases of exemption, it is often required that school property should be in use for that purpose; when it is liable it is upon

there is no exemption. The presumption of ex

must be shown by the party asserting it. Essex County v. Salem. 153 Mass. 141, 26 N. E. 431: Proprietors of South Cong. Meetinghouse v. Lowell, 1 Met. 538; Worcester v. Western R. Corp. 4 Met. 564: Louisville v. Com. 1 Duv. 295, 85 Am. Dec. 624; San Diego v. Linda Vista Irrig. Dist. 108 Cal. 189, 35 L. R. A. 38, 41 Pac. 291.

of New Orleans and elsewhere, which was to lected from private property in cash and be carried out by boards of commissioners drainage warrants, leaving outstanding at appointed for the three districts into which the date of the filing of the bill in this case the territory was divided. The act further uncollected assessments to the amount of provided for plans of the work to be pre- $1,469,714.47, of which the city owes $696,pared by the commissioners, for assessments 349.30. to be levied upon the lands benefited, and for the entry of judgments decreeing the lands to be subject to a lien for such amount as might be assessed.

By a supplemental act, approved March 17, 1859, the boards of commissioners were authorized to borrow money to carry on the work, and to issue bonds therefor. It was contemplated that the money should be raised at once for the payment of the work, in anticipation of the collection of the assessments.

By an act approved March 1, 1861, the prior acts were amended by providing for a summary mode of collecting the assessments, authorizing the commissioners to apply to certain courts for the approval and homolgation of the assessment rolls, which approval and homologation the act declared "shall [123]*be a judgment against the property assessed and the owners thereof, upon which execution may issue in the ordinary mode of proceeding."

The commissioners made plans of the work proposed to be done, including therein the streets, squares, and public places within the several districts, as the property of the city of New Orleans, and from time to time judgments were rendered charging these public places, as well as private property, with the amounts that had been assessed for drainage purposes. The city was named as the own er of these public places in the tableau, and judgments were rendered against it as such owner for sums amounting in the several districts to $719,926.63.

On February 24, 1871, the legislature passed an act entitled "An Act to Provide for the Drainage of New Orleans." This act abolished the several boards of drainage commissioners, transferred their assets to the board of administrators of the city of New Orleans, subrogated this board to all the rights, powers, and facilities then possessed by the commissioners, directed it to collect the balance due on the assessments as shown by the books of the drainage districts, "which said assessments are hereby confirmed and made exigible at such time and in such manner as the board of administra tors may designate." It further authorized the Mississippi & Mexican Gulf Ship Canal Company to undertake the work of draining the city, required the board of administrators to place all collections of drainage assess ments to the credit of such company, and hold the same as a fund to be applied to the drainage of New Orleans and Carrollton. Under these and the prior acts assessments were made and reduced to judgment against the city on the area of the streets and other public places within the drainage districts. to the amount of $696,349.30, and against private persons to the amount of $1,003,342. 98, of which about $330,000 have been col

By an act passed February 24, 1876, after more than two thirds of the drainage system[124] had been completed, the city of New Orleans was authorized to purchase, if the common council deemed it advisable, the property and franchises of the ship canal company or its transferee, including all tools, implements, machines, boats, and apparatus belonging to said company or its transferee, on a valuation to be fixed by appraisers to be appointed by the common council, the amount to be paid in warrants drawn against the drainage assessments. It further provided that the city should have exclusive control of all the powers and franchises granted to the ship canal company, and should alone have the power to do all the drainage work required to be paid for by assessment upon property or from the city treasury. Meantime, however, the ship canal company, having become embarrassed, on May 22, 1872, assigned all its rights to Warren Van Norden.

Acting under the authority of this act of February 24, 1876, the city accepted the option, appointed an appraiser of the property of the ship canal company, and authorized the mayor to purchase of said company, or its transferee, all its property, and to stipu late for a full settlement of all its claims for damages. Thereupon the mayor entered into a contract with the canal company and with Van Norden, its transferee, for the purchase of their property and the relinquishment of all their claims for damages, for the sum of $300,000, payable in drainage warrants. In this contract of sale the city cov enanted and agreed "that the existing rights and powers of the holders of drainage warrants, under the civil acts of the legislature of this state relative to drainage and drainage assessments, shall remain unimpaired, and that the drainage tax and assessment shall be administered, collected, and paid" in the manner and under certain terms specified, and that "the collection of drainage assessments shall be assigned to an officer. who shall be selected by the said W. Van Norden and be confirmed by the city council." The city further agreed "not to ob struct or impede, but, on the contrary, to fa cilitate, by all lawful means, the collection of the drainage assessments as provided by law, until said warrants have been fully paid. *it being well understood by and between the[125] said parties hereto that collections of drainage assessments shall not be diverted from the liquidation of said warrants and expenses as hereinabove provided for, under any pretext whatsoever, until the full and final payment of the same."

The bill, after reciting these facts, averred in substance that upon acquiring the drainage plant and franchises of the canal company the city abandoned all drainage work

S92.

Thereupon the court of appeals held that the city was estopped from pleading the issue of the bonds, and that the Peake Case did not necessarily apply to the facts of this case nor operate to defeat the plaintiff's action. The decree of the circuit court sustaining the demurrer was reversed, and the case remanded with instructions to proceed to a decision upon the merits. 52 U. S. App. 348, 81 Fed. Rep. 645, 26 C. C. A. 508.

and suffered the dredge boats and machinery | 167 U. S. 467, 42 L. ed. 239, 17 Sup. Ct. Rep. purchased as above stated to decay and become valueless, and that by reason of the city's failure to complete the drainage and benefit the lands the courts have refused to enforce the collection of the assessments; that, having thus abandoned all drainage work, the city, by its ordinances and by a proclamation of the mayor, then advised property holders not to pay the assessments, and that in consequence of these ordinances and said proclamation and the decisions of the courts the drainage assessments became The case subsequently went to a hearing practically valueless and uncollectible. The upon the pleadings and proofs in the circuit bill further averred that the city had issued court, and resulted in a decree dismissing the bonds in exchange for drainage warrants bill. Thereupon an appeal was taken to the given for work done prior to the sale, under circuit court of appeals, which reversed the the authority of the act of the legislature of decree of the circuit court and remanded the 1872, to an amount in excess of all the drain-case to that court, with directions to enter a age assessments, which it will claim operated decree that the city was indebted to Warner as a discharge of its liability, as assessee of in $6,000 with 8 per cent interest from June the streets, etc., and of all liability it may 6, 1876, to be paid out of the drainage assesshave incurred by any dereliction of duty in ments set forth in the bill; that such assessregard to the assessments against private ments, including those against the city, as property, but that this claim was not made the owner of its streets and squares, consti. known to Van Norden at the time of the pur- tuted a trust fund in the hands of the city[127] chase, and that he would not have parted for the purpose of paying complainant and with his property for a consideration payable other holders of the same class of warrants; out of drainage assessments, if he had known and that the case be referred to a master that such claim would be set up to defeat the to state an account. Whereupon the city appayment of the price. The bill closed with plied for and obtained a writ of certiorari a prayer for an accounting of the drainage from this court. fund, including the amounts due by the city and the application thereof to the payment of the complainant's warrants and those held by others similarly situated who might come

in and avail themselves of the benefits of the
bill.

To this bill the defendant demurred for

Mr. Branch K. Miller argued the cause and, with Mr. Sumuel L. Gilmore, filed a brief for petitioner:

The constitutional amendment of 1874 is a complete defense to this action.

Prince v. Quincy, 105 Ill. 138, 44 Am. Rep. want of jurisdiction and of equity, and be- 785; Sackett v. New Albany, 88 Ind. 473, 45 cause the matters sought to be litigated had Am. Rep. 467; Valparaiso v. Gardner, 97 been decided adversely to complainant's pre- Ind. 1, 49 Am. Rep. 416; National State [126]tensions by the circuit court in the case of Peake v. New Orleans, and by the Supreme Bank v. Independent Dist. 39 Iowa, 490; Da Court on appeal in the same case, 139 U. S. vis v. Des Moines, 71 Iowa, 501, 32 N. W. 342, 35 L. ed. 131, 11 Sup. Ct. Rep. 541.470: Scott v. Davenport, 34 Iowa, 208; Coun This demurrer was sustained, the bill dis-cil Bluffs v. Stewart, 51 Iowa, 385, 1 N. W. missed by the circuit court, and the case car-628; State, Read, Prosecutor, v. Atlantio ried to the circuit court of appeals for the City, 49 N. J. L. 558, 9 Atl. 759; Erie's Apfifth circuit. That court, being in doubt as peal, 91 Pa. 398; Buchanan v. Litchfield, 102 to the application of the Peake Case, certi- U. S. 278, 26 L. ed. 138; Litchfield v. Ballou, fied to this court the questions: First, 114 U. S. 190, 29 L. ed. 132, 5 Sup. Ct. Rep. whether the city, under the warranties, ex- 820; Doon Twp. v. Cummins, 142 U. S. 366, pressed and implied, contained in the con- 35 L. ed. 1044, 12 Sup. Ct. Rep. 220; New Ortract of sale of June 7, 1876, by which it ac-leans Taxpayers' Asso. v. New Orleans, 33 quired the property and franchise from War-La. Ann. 568; State ex rel. Marchand v. New ner Van Norden, was estopped from pleading | Orleans, 37 La. Ann. 19; State ex rel. New against the complainant the issuance of Orleans Gaslight Co. v. New Orleans, 37 La. bonds to retire $1,672,105.21 of drainage Ann. 438; State ex rel. Wood v. Board of warrants, issued prior to said sale, as a dis-Liquidation of City Debt, 40 La. Ann. 413, charge of its obligation to account for drain- 4 So. 122. age funds collected on private property, and as a discharge of its own liability to that fund as assessee of the streets and squares; and, second, whether the decision in Peake v. New Orleans should be held to apply to the facts of this case and operate to defeat complainant's action.

The drainage warrant holders have the
right, under La. Civ. Code, art. 3547, to re-
move the judgments against the city; having
failed to do so prescription has run and the
judgments are extinguished.

Brown v. Union Ins. Co. 3 La. Ann. 177;
Wagoner v. Phillips, 22 La. Ann. 152.
Mr. Wheeler H. Peckham argued the

The first of these questions this court an-
swered in the affirmative; the second it de-cause and filed a brief for respondent:
clined to answer. Warner v. New Orleans,

It must be regarded as settled that the is

sue by the city of its bonds in taking up prior warrants is no defense to this suit. Warner v. New Orleans, 167 U. S. 467, 42 L. ed. 239, 17 Sup. Ct. Rep. 892.

The city must be charged as if she had collected these assessments.

Reilly v. Albany, 112 N. Y. 30, 19 N. E. 508, and cases cited; Cumming v. Brooklyn, 11 Paige, 596; Beard v. Brooklyn, 31 Barb. 142; Hunt v. Utica, 23 Barb. 398; Atchison v. Byrnes, 22 Kan. 65.

The claim of res judicata does not merit serious attention. One suing for himself and others similarly situated does not represent the others, and a judgment does not bar them until and unless they come in and become parties to the suit.

Messrs. John D. Rouse and William Grant filed a further brief for respondent:

The levy of local assessments for the improvement of property benefited thereby is not considered taxation in the sense in which that term is generally used.

Charnock v. Fordoche & G. T. Special Levee Dist. Co. 38 La. Ann. 326; Levee Commissioners v. Lorio Bros. 33 La. Ann. 276; Morgan's L. & T. K. & S. S. Co. v. Louisiana Bd. of Health, 36 La. Ann. 666; Burroughs, Taxn. chap. 22; Cooley, Taxn. chap. 20; Barber Asphalt Paving Co. v. Gogreve, 41 La. Ann. 263, 5 So. 848.

The city is liable for drainage assessments in streets and other public places, although neither the city nor the public places were expressly included in the statute.

Marquez v. New Orleans, 13 La. Ann. 319; Correjolles v. Foucher, 26 La. Ann. 362; Barber Asphalt Paving Co. v. Gogreve, 41 La. Ann. 259, 5 So. 848; McLean County v. Bloomington, 106 Ill. 209.

A final judgment is no less conclusive because based on the assessment of a special

tax.

Driggers v. Cassady, 71 Ala. 533; Burroughs, Taxn. p. 285; Wellshear v. Kelley, 69 Mo. 343; Eitel v. Foote, 39 Cal. 439; Cadmus v. Jackson, 52 Pa. 295; Mayo v. Foley, 40 Cal. 281; Davidson v. New Orleans, 34 La. Ann. 170.

Levy v. Calhoun, 34 La. Ann. 413; Saun ders' Succession, 37 La. Ann. 769.

A trustee must clearly repudiate the trust before the statute can begin to run.

Perry, Tr. § 863; Southern Mut. Ins. Co. v. Pike, 32 La. Ann. 483.

The drainage taxes, being debts of the city at the date of the adoption of the constitutional amendment, cannot by any reasoning be included in the clause prohibiting any increase of the indebtedness of the corporation. The amendment, even if it had provided in express terms that no debt of the city of New Orleans would be valid, would be construed to apply to future transactions only. McEwen v. Den, 24 How. 242, 16 L. ed.

672.

The purpose of inserting a clause in the amendment authorizing the city to draw warrants payable out of drainage taxes was to permit the city to complete the improvement and to use the drainage fund to its full extent for that purpose.

Mr. Richard De Gray filed a further brief for respondent:

The assessments against the city of New Orleans are not affected by the fact that the public property of the area on which they are levied cannot be sold, in default of voluntary payment, by the city to pay such assessments.

United States v. New Orleans, 98 U. S. 381, 25 L. ed. 225; Wolff v. New Orleans, 103 U. S. 358, 26 L. ed. 395.

After the contract of sale the city became voluntarily the trustee of the drainage tax assessment, and the statute of limitations has no application.

Lewis v. Hawkins, 23 Wall. 119, 23 L. ed. 113; Perry, Tr. § 863.

Nor are taxes assessed for drainage purposes subject to any prescription.

School Directors v. Shreveport, 47 La. Ann. 1310, 17 So. 823; Reed v. His Creditors, 39 La. Ann. 115, 1 So. 784.

Unless the law under which a tax is assessed provides a limitation none exists. Davidson v. Lindop, 36 La. Ann. 766. And so strictly is the statute of pre

and not prior assessments.

The prescription of five years claimed un-scription construed that it applies to future der La. Civ. Code, art. 3540, applies exclusively to unconditional promises to pay a fixed sum of money whether the obligation be negotiable or not. Any condition inserted in an obligation takes it out of this rule.

New Orleans v. Vergnole, 33 La. Ann. 39; Dupuy's Succession, 33 La. Ann. 258; State ex rel. Jackson v. Recorder of Mortgages, 34 La. Ann. 178.

Thompson v. Simmons, 22 La. Ann. 450; In no event can such a statute be pleaded Baird v. Livingston, 1 Rob. (La.) 183; Jou- by a city owing taxes while she is trustee, ett v. Erwin, 9 La. 231; Davidson v. New Or- and a trustee who owes a debt to the trust leans, 34 La. Ann. 177; Fisher v. New Or-is treated in law as if he had collected the leans School Directors, 44 La. Ann. 185, 10 same and was charged with the amount as an So. 494; Gasquet v. City School Directors, asset on hand. 45 La. Ann. 342, 12 So. 506; King Iron Bridge & Mfg. Co. v. Otoe County, 124 U. S. 459, 31 L. ed. 514, 8 Sup. Ct. Rep. 582.

No prescription runs in favor of a trustee against a debt which he owes to the trust. McKnight v. Calhoun, 36 La. Ann. 408; Farmers' Succession, 32 La. Ann. 1037.

The prescription of judgments may be interrupted or suspended in the same manner and for the same causes which operate with regard to ordinary debts.

Perry, Tr. § 440; Stevens v. Gaylord, 11 Mass. 269; Sigourney v. Wetherell, 6 Met. 557; Leland v. Felton, 1 Allen, 533; Com. v. Gould, 118 Mass. 307.

*Mr. Justice Brown delivered the opinion[127]

of the court:

Nineteen assignments of error were filed in this case, but we shall only notice such as were pressed upon our attention in the oral arguments or in the briefs of counsel.

1. That this suit was, at the institution | judgments for money, whether rendered thereof, prescribed by the statutes of Louis- within or without the state, shall be preiana. In this connection reference is made scribed by the lapse of ten years from the to articles 3540, 3544, and 3547 of the Civil rendition of such judgments. Provided, Code. however, that any party interested in any Article 3540 provides that "actions on judgment may have the same revived at any bills of exchange, notes payable to order or time before it is prescribed," etc., in which bearer, except bank notes, those on all effects case it "shall continue in full force for ten negotiable or transferable by indorsement or years from the date of the order of court redelivery, and those on all promissory notes, viving the same." This latter article is whether negotiable or otherwise, are pre- supposed to be applicable to the homologa-[129] scribed by five years," etc. Even though it tion of the several assessment rolls against could be assumed in this case that this bill the city as well as against private parties, was an "action on" these drainage warrants, which, under the act of March 1, 1861, were we think they do not fall within the descrip- declared to be judgments against the propertion of either of the instruments specified in ty assessed and the owners thereof, upon article 3540. These warrants are in the which execution might issue in the ordinary form of an order drawn by the administra-mode of proceeding. These homologations tor of accounts upon the administrator of fi- or judgments were rendered at the suit of nance, directing him to pay to the order of the commissioners of the drainage district, W. Van Norden, transferee of the Mississippi or the city itself, at various times from 1861 & Mexican Gulf Ship Canal Company, a cer- to 1875. tain amount "out of any funds in the city treasury to the credit of said company." They also contain the following memorandum: "This warrant is issued in accordance with the provisions of act 30 of the session of the general assembly of the state of Louis[128]iana, held in the year 1871, *and the administrator of finance, on presentation to him of this warrant, will pay the same in cash, in case there be any funds in the city treasury to the credit of the said Mississippi & Mexican Gulf Ship Canal Company; but should there not be sufficient funds to cash this war-tion of said warrants and expenses as hererant then the administrator of finance is required to indorse upon the same the date of its presentation, and this warrant shall bear interest at the rate of 8 per cent per annum from and after the date of such presentation and indorsement until paid."

But we think a decisive answer to the argument upon both these articles is found in the contract of June 7, 1876, wherein the city purchased of Van Norden the drainage plant, and contracted "not to obstruct or impede, but, on the contrary, to facilitate, by all lawful means, the collection of the drainage assessments as provided by law until said warrants have been fully paid, it being well understood and agreed by said parties thereto that collections of drainage assessments shall not be diverted from the liquidainabove provided for, under any pretext whatsoever, until full and final payment of the same." In respect to this we adhere to the opinion pronounced by us when this case was first before this court, that the city in respect to this purchase acted voluntarily; This instrument is neither a bill of ex- that it was not, as had been held in the change, a promissory note, a note payable to former case of Peake v. New Orleans, 139 order or bearer, nor an effect negotiable by U. S. 342, 35 L. ed. 131, 11 Sup. Ct. Rep. indorsement or delivery. The construction 541, with respect to other warrants, a comgiven to article 3540 by the supreme court pulsory trustee, but a voluntary contractor; of Louisiana confines it to unconditional that as the fund was to be partly created by promises to pay a fixed sum of money on a the performance by the city of a statutory day certain whether the obligation be nego-duty, it could not deliberately abandon that tiable under the law merchant or not. Con- duty, or take active steps to prevent the furditional obligations which lack these essen-ther creation of the fund, and then plead a tial characteristics do not come within its provisions. Baird v. Livingston, 1 Rob. (La.) 182; Bank of Louisiana v. Williams, 21 La. Ann. 121; Thompson v. Simmons, 22 La. Ann. 450; Jouett v. Erwin, 9 La. 231; Gasquet v. City Schools Bd. of Directors, 45 La. Ann. 342, 12 So. 506; King Iron Bridge & Mfg. Co. v. Otoe County, 124 U. S. 459, 31 L. ed. 514, 8 Sup. Ct. Rep. 582.

As these warrants were not only payable out of a particular fund to the credit of the canal company, but were only payable when there were funds to the credit of such company, we think it entirely clear that they are not included within the terms of article 3540.

We are also referred to article 3544, prescribing, "in general, all personal actions, except those before enumerated," by ten years, and to article 3547, which enacts that "all

prior issue of bonds as a reason for evading
liability upon the warrants. As the city
had paid for the property in warrants drawn
upon a particular fund, it was under an im-
plied obligation to do whatever was reason-
able and fair to make that fund good.
Certainly it could not so act as to prevent
the fund being made good, and then require
the vendor to look to the fund, and not to
itself. The duty of the city to collect these
assessments was affirmed in State, Van
Norden, v. New Orleans, 27 La. Ann. 497.
See also Cumming v. Brooklyn, 11 Paige,[130)
596; Atchison v. Byrnes, 22 Kan. 65.

Having thus voluntarily assumed the obligations of a trustee with respect to this fund, it cannot now set up the statute of limitations against an obligation, which, as such trustee, it had undertaken and failed to perform. The rule is well settled that in

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