The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1878-03-26
FIFTH DISTRICT COURT.

Judge Rodgers rendered the following de-
City Of New Orleans vs. The Southern Bank
ct als.-The defendant Southern Bank de-
clares that it purPosely ayers three distinct
that it may be informed distinctly on whom
eventually to fasten the responsibility Of this
suit; these grounds necessarily seek their
solution In matters Of fact, and as they have
been fully developed in the testimony, I would
probably be justified in giving them no fur
ther consideration; but the want of authority
to bring this suit, without an ordinance or
special resolution directing the same, has
been urged. 1t is not denied that the city has
question rarely has reference to the authority
of the official bringing the suit. 1t Is not de-
MED that Mr.. Jonas Is the City Attorney and
directed the proceedings, and that Mr.. Blanc
was to q certain extent authorized by or
dinance or resolution to prosecute certain
claims. and the evidence declares this cause
to be OF the number. ! have looked In vain
for authority which should be conclusive to
my mind that q municipal corporation can
not act through it's proper officers in dis
out an ordinance or special resolution. Within
the limits OF it's charter it has been clothed
with sovereign power, and from the very ma
ture of It's existence must act through Its
executive branch. 1t would scarcely be held
that the Attorney General or the Governor of
Ulfe oGuU0 WOulu 10 power Ill tuo e5Su-
eral and discretionary. acts OF government
without special acts Of the Legislature, and l
can see no distinction when this application Is
made to the Mayor and City Attorney acting
within the scope OF the city charter and In
the exercise of the general duties of their re-
spective offices. It is to be presumed these
officers are acting legally and the Council of
the city can declare at any time their ap-
prevail or disapproval of the acts Of these Off
GERS In this matter or In any other.
- txn4 Nt In III
missed because the city has failed to tender
the sum OF S537, $40 % paid by defendants in
extinction of the police debt has no applica-
ton to this case.
If the city has any cause of action 1t results
was its mandatory and has failed to account
In fact, this Is the distinct charge OF Dubu-
clet, State Treasurer, who says the Southern
Bank was the mandatory of the city, and as
such he dealt with it. The principle Of law
that we cannot claim restitution and refuse to
refund or restore that which has been appro-
priated to his benefit. Here we have q case
upon defendant for an account OF fiduci-
airy trust
It is not necessary to determine the effect
of section 81, act No. II, in regard to the nsti
tuition of this suit The defendant is estopped
from urging it in this suit. Surprising the
allegations of plaintiff g petition true, and for
the purposes OF this exception they must be
TAKEN as true, ny WHat prlnclple oi law OF
equity can an agent assume the discharge Of
fiduciary trusts and when called upon to ac-
count, set up his principal had no right to
contide to him the performance OF his obliga-
tons?
The State Treasurer pleads the prescription
of one year, on the ground that this is an &C
ton for damages er delicto. 1t seems to me
the very defense, that in the performance of
his general duties he was only to receive the
funds from the City Treasurer for payment of
police; that when, as charged In the petition,
duties, he assumed position towards the city
which holds him by the same law which
applies to the other defendants.
The exceptions herein filed by the defen-
dants are dismissed.