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Dissenting Opinion: Harlan, J., Fuller, C. J., Lamar, J.

737; Wood v. Guarantee Trust Co., 128 U. S. 416; Queen v. Ashwell, 16 Q. B. D. 190, 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 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 extinguish its own liability in this manner, it would have said so.

The remaining point to be noticed is that of the equitable set-off. The argument of the appellee on this line is as follows: The act of 1872 was only an enabling act to terminate the power of the municipality to issue bonds of the same tenor as the warrants which were taken up; that is to say, payable out of the drainage fund if that should suffice. The case, as here regarded then, is clearly that of a trustee, who has, by error, issued securities for the advantage of the cestui que trust. Having so issued the securities, it must result, inevitably, that the city is to be credited with the amount to the extent of which she has relieved the fund.

It is obvious that the entire force of this argument rests on the proposition that the drainage bonds were to be issued, payable only out of the drainage fund, and did not import, as contemplated by the statute, any 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, according to our view, a direct liability on the city was exactly what was intended, the provision as to the drainage fund in connection 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, assessments in 1872 were less by or about $200,000 than the known sum needed to complete the system devised by the act of

Opinion of the Court.

1871; secondly, although the assessments were collected 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 sufficient contradiction of the idea that the only source for payment at that late date was 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 liability. The city should at least have paid what it itself owed on the assessments in question.

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

MR. JUSTICE BROWN did not hear argument in this case, and takes no part in its decision.

PEAKE v. NEW ORLEANS, No. 459. Error to the Circuit Court of the United States for the Eastern District of Louisiana. PEAKE v. NEW ORLEANS, No. 41. Appeal from the Circuit Court of the United States for the Eastern District of Louisiana. UNITED STATES ex rel. PEAKE V. NEW ORLEANS, No. 460. Error to the Circuit Court of the United States for the Eastern District of Louisiana. BREWER, J. The conclusions above stated in the opinion

Opinion of the Court.

of the court in Peake v. New Orleans, compel an affirmance of the judgment in the case between the same parties numbered 459, and by stipulation cases numbered 41 and 460 are to be controlled by this decision, and the same orders will therefore be entered in them.

FULLER, C. J., and HARLAN and LAMAR, JJ., dissent from these judgments for the reasons stated in their dissenting opinion in Peake v. New Orleans.

BROWN, J., did not hear the arguments in these cases, and takes no part in their decision.

Mr. Richard De Gray, Mr. Grover Cleveland and Mr. Thomas J. Semmes for appellants.

Mr. Carleton Hunt for appellees.

TIMMONS v. ELYTON LAND COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ALABAMA.

No. 1325. Submitted March 2, 1891.- Decided March 30, 1891.

In this case the complaint described the defendant as a corporation chartered under the laws of Alabama and doing business in that State, one of the plaintiffs as a "resident” in North Carolina, and two other plaintiffs as residents" in South Carolina. An amendment added twelve plaintiff's with no averments as to citizenship. As the jurisdiction depended upon citizenship; Held, that the Circuit Court was without jurisdiction.

MOTION TO DISMISS OR AFFIRM. The case is stated in the opinion.

Mr. Alexander T. Loudon for the motion.

Mr. T. H. Watts and Mr. H. A. Herbert opposing.

MR. CHIEF JUSTICE FULLER delivered the opinion of the court

This was an action brought by Margaret C. McElrath, Mary E. McElrath and Linda E. Timmons against the Elyton Land

Opinion of the Court.

Company in the Circuit Court of the United States for the Northern District of Alabama.

The complaint averred "that Mary E. McElrath is a resident of the State of North Carolina, and that Linda E. Timmons and Margaret Celia McElrath are residents of the State of South Carolina," and that the defendant "is a corporation chartered under the laws of the State of Alabama and doing business within said State."

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By the summons, the marshal was commanded "to summon the Elyton Land Company, a corporation chartered under the laws of the State of Alabama, and who is a citizen of the State of Alabama, to appear to answer the complaint of Margaret Celia McElrath and Linda E. Timmons, who are residents of the county of Spartanburg, State of South Carolina, and Mary E. McElrath, who is a citizen of the State of North Carolina." The complaint was subsequently amended by adding the names of twelve other plaintiffs without any averment as to their citizenship.

In the bill of exceptions, which appears in the record, it is stated that "the plaintiffs were non-residents of the State of Alabama."

As the record does not show that the Circuit Court had jurisdiction of the suit, which depended upon the citizenship of the parties, the judgment must be reversed at the costs of the plaintiffs in error, and the cause remanded to the Circuit Court for further proceedings. Menard v. Goggan, 121 U. S. 253; Robertson v. Cease, 97 U. S. 646; Brown v. Keene, 8 Pet. 112; Anderson v. Watt, 138 U. S. 694.

Reversed.

Opinion of the Court.

UNDERWOOD v. DUGAN.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS.

No. 223. Submitted March 17, 1891.- Decided March 30, 1891.

Forty-three years after the ancestor of the plaintiffs acquired title, more than twenty years after that ancestor had positive information of the wrong upon which the claims set up in this bill in equity are grounded, twenty-five years after the purchase by the defendant in good faith and with no knowledge of the wrong, this suit was commenced, without any assertion of the right now set up having been made during all that time. Held, that these facts disclosed laches which forbade the interference of a court of equity.

IN EQUITY.

Decree dismissing the bill. Complainants appealed. The case is stated in the opinion.

Mr. W. Hallett Phillips for appellants.

Mr. Sawnie Roberson and Mr. W. O. Davis for appellees.

MR. JUSTICE BREWER delivered the opinion of the court.

The facts in this case are these:

On March 1, 1838, one Fines Y. Roberson, whose name seems to have been spelled in different ways, sometimes as above stated, sometimes as "Phineas Robertson," again as "Phiness Y. Robinson," still again as "Phiness Robinson," received from the proper authorities of the State of Texas the following land certificate, entitling him as therein provided, and on the conditions therein named, to one league and labor of land:

"No. 127.

"This is to certify that Fines Y. Roberson has appeared before the board of land commissioners for the county of Houston and proved, according to law, that he arrived in this Republic, Jan'y-, eighteen and thirty-five, and that he is a

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