WARNER v. CITY OF NEW ORLEANS, 81 F. 645

PER CURIAM. The city of New Orleans, under warranties express and implied contained in the contract of sale of June 7, 1876, by which she acquired the property and franchise from Warner Van Harden, and under the averments of the bill, is estopped from pleading- against the complainant below, and appellant here, the issuance of bonds to retire |1,672,105.21 of drainage warrants issued prior to said sale as a discharge of her obligation to account for drainage funds collected on private property, and as a discharge from her own liability to that fund as assessee of the streets and squares. Warner v.

City of New Orleans, 167 U. S. 467, 17 Sup. Ct 892. On the case made by the bill of complaint the decision of the supreme court in the case of Peake v. City of New Orleans, 139 U. S. 342, 11 Sup. Ct. 541, does not necessarily apply to the facts of this case, nor operate to defeat the complainant’s action. It follows that the circuit court erred in sustaining- the demurrer to the complainant’s bill. The decree of the circuit court is reversed, and the cause is remanded, with instructions to overrule the demurrer to the complainant’s hill, and thereafter proceed as equity and good conscience may require.