
    Louis Goldschmidt v. The Mayor, Aldermen and Inhabitants of New Orleans.
    Where the Mayor of the city of New Orleans drew a warrant upon the Municipality Number Three, for the quota of said municipality, due upon interest coupons owed by the Old Corporation of the Mayor, Aldermen and Inhabitants of the city of New Orleans, and the warrant was protested for non-payment, it was not a novation of the original debt, and the Old Corporation remained liable.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J".
    
      A. K. Josephs, for plaintiff.
    
      H. D. Ogden, for defendant,
    contended: This action was instituted against the Commissioners of the Geuerid Sinking Fund on an order or warrant drawn by A. JD. Crossman, Mayor, on, and accepted by, .the Treasurer of the Third Municipality, and duly countersigned by the Comptroller of said municipality. Is this obligation, taken by itself, binding on the defendants ? Is it either drawn or accepted by any of the officers of the Board of Commissioners of the General Sinking Fund, acting in that capacity and in conformify to law ?
    To bind the commissioners, there must have been some authority given to issue such an obligation. "We find nothing to that effect in the record ; and furthermore no such authority could be or ever was given. The commissioners are prohibited by law from issuing any obligation except when an installment is due, growing out of the former debt of the city, and there be a deficit of funds, then, and in that case only, notes can be issued, signed by the mayor and a majority of the commissioners, which note shall be discounted in some bank, &c. Act 1836, sec. 15.
    The obligation is neither signed by the mayor, acting as president of the board of commissioners and a majority of the commissioners, or was it applied in the manner prescribed by law. On the contrary, it is drawn in accordance with a resolution of the Council of the Third Municipality, signed by the proper officers of said municipality. The signature of the mayor thereto can no more bind the defendants than it can bind either or both of the other municipalities. He was acting as an officer of the Third Municipality in the performance of a duty imposed on him both by the resolution of said municipality and by the law which, directs the mayor to sign all warrants upon the treasurers of the different municipalities. Act 1805, sec. 9. Act 1836, sec. 2.
    Thus far we have examined the question only as an obligation issued by the Third Municipality for a debt due by itself, viz, its quota. Act of 1836, sec. 15. In this point of view the general sinking fund cannot be liable, for the municipality and the defendants are two distinct corporations, deriving their revenues from different sources, and if there be a judgment against the defendants the other two municipalities will be made to pay a debt which they have not contracted, and for which they are in no wise responsible. But are the ^defendants bound from the fact that said draft or warrant was given in payment of a former debt, for which they were originally liable We find that every year each of the three municipalities is to set apart and pay to the general sinking fund, a certain per centage from its revenues. Act 1836, sec. 15.
    At the time that the obligation sued on was issued, the Third Municipality did not pay its per centage, and the mayor drew said warrant in conformity to a resolution authorizing him to draw, &e. “provided that the obligations be given to those who would consent to take in payment for interest due, obligations of the same nature from the other municipalities.” The obligation states, “ for value received, being the proportion of one hundred and fifty coupons of interest due on the bonds issued by the former corporation of the city of New Orleans, to be paid by Municipality Number Three, in conformity with a resolution passed by the council of said municipality, on the 16th December, 1843.” The obligation refers to the resolution; and to ascertain the intention of the parties, the two must be taken together. The intention of the municipality was clearly that the obligation should be given in payment of the former debt. The offer, as expressed on the face of the warrant in connexion with the resolution, was to take the warrant in payment. The assent was given, and in default of contrary proof, it must have been in all things conformable to the offer. The assent is implied. C. C. 1805. It is manifest and results from the acts of the parties: 1st, in receiving the obligation referring to the resolution ; 2d, in delivering up the interest coupons to the general sinking fund at the time of the receipt of the obligation.
    The parties took the draft or warrant in payment. Payment extinguishes and fully discharges the debt. The receipt of a different obligation in payment of a former one, extinguishes the former. 16 L. R. 143. The interest coupons were surrendered. The voluntary surrender to the debtor of the original title under private signature, constituting the obligation, remits the debt. C. C. 2195. 5 N. S. 157. It was a novation; this clearly resulted from the terms of the agreement. On n’exige pas k la vérité que les parties aient expressément et textuellement declaré qu’elles voulaient faire novation, mais il faut au moins que la volonté de l’opérer résulte clairement de l’acte. Delvincourt, torn 2, p. 51. What can be more clear and positive than receiving a new obligation in payment and surrendering the original title under private signature. 1 L. R. 527. 4 L. R. 511. 14 L. R. 33. 2 R. R. 59.
   The judgment of the court was pronounced by

Eustis, C. J.

This case is not to be distinguished from that of Short against the defendants, 4th Ann. 281. The arguments adduced were all fully considered in that case.

The cases are anomalous, arising under the peculiar legislation, State and municipal, relating to the corporation of New Orleans and the municipalities which succeeded it. We find no reason to change our conclusions on this subject.

The judgment of the district court is therefore affirmed, with costs.  