but !that would not proVetbatthe company had not accepted .them in ful't payment, as the resolution of the stockholders' meeting shows it
did, nor that the stock so issued was not full paid. Nor would such: iactsharve suggested that if he purchased the stock he would. bletO contribute to the difference between the value of the land and the parva1Ue' of the stock.. The stock had already been paid for once, and, in the the parties to the contract, that payment was .to·protect purchaser of the stock for value against the companyoJ:"itscreditol's. ltmay be said that, on the ground of gross valuation alone, the company might, if it had acted in apt time, have had transaction set aside, and the stock surrendered and canceled on a recorlvtlyance of the land for the stock while it still remained in the hands of Taylor, but it is now impossible to restore the parties to their original condition. The stock, at least a part of it; 'has gone into the purchasers for value, and the coal, as the proof shows, has been largely mined out of the land. The cases of Bridge 00. v. Mo. App; 500, and Brant v. Ehlen, 59 Md. 1, seem to me to be instructive upon the points raised, and conclusive against plainall1:$'.right· to recover. The bill is dismissed for want of equity.
BBI'tISH FOREIGN MARINE
11. BOARD OF ASSESSORS. GLOBE INs. Co. tJ. SAME.
(Oircuit Oourt, E. D. Louisiana. April10,1890.)
Under 1 Acts La. 1886, No, 76, whioh provides that if the ospital of a foreign fnsul'auce ;oompB1lY shall not have heen taxed in any other state tbe. company shall be taxed on Its gross receipts,. hut provides no method for ascertaining the amount of the groBareceipts, and :lI.xes no rate of taxation, the gross receipts cannot be taxed.
On Motion for Injunction pendente lite. W. lV.Huwe, for British Foreign Marine Insurance Company. Huntingt.on &: DufoVlr, for Liverpool & London & Globe Insurance Company. Wynne Rogers, for the State. Sam. L. Gilmore, for city of New Orleans. Before: PKRDEE and BILLINGS, JJ·
. PER CuRIAM. These suits are proceedings in equity, and submitted upon bill and affidavits for injunctions pendente lite. The complainants are foreign insurance companies, and have been taxed .upon their gross receipts, estimated for the current year in advance by the assessors, and seek to enjoin the state officers and the officers of the city of New Orleans from collecting this tax. The statutes of the state on the subj'ect are an actin relation to insurance companies, etc., No. 76 in the Acts of 1886, and the general annual revenue act No. 98 of the sallle year. Both these
lJENRY t1. SU'lYi"LE.
acts were.approved on the Rame day. "The general revenue act was reenacted in 1888. The act in relation to il1sura.ncecompanies provides that the c!lpital of the foreign insurance companies shall be determined ,and certified to by the of state yearly, and sball be the aggregate value of the deposits made in this state and in the other states of the Union, as the security for the policy-holders, and bonds or mortgages upon real estate in the United States, with the proviso as follows: Provided "that said capital has not been taxed· and paid by the main agency or company in any other state, thel1 taxation shall be levied upon . the gross receipts, less deductions governing companies organized under the laws of this state." .There is no other provision for taxing gross receipts. There is no method presented or indicated for ascertaining them· .On the contrary, in the general revenue law, the valuations upon which taxes are to be assessed are required to be ascertained at the beginning of each year. In the general revenue law there isa most comprehensiveenumeration of the things which shall be subject to taxation, but gross· receipts are not mentioned, nor are they included in anything which is named. It is further to be observed that in the proviso, which taxing gross receipts, no rate of taxation contains the only authority is fixed, or authorized to be fixed. In the absence of any method, which the nature of the thing would require for ascertaining or approximating to the amount of gross rectlipts for an entire corning year, as well as in the absence of the establishment of any rate at which the amount, when reached, should be taxed, we are of the opinion that the gross receipts of the complainants cannot be deemed to have been subjected to any tax by the legislature) and therefore allow the injunctions pendente lite as prayed for.
HENRY t1. SUTTLE
(Otrcuf,t Oourt, D. New Jer8Cl/. March 25, 1890.)
EQUITY-PLEADING AND PROOP-VARIANCE.
Where a bill prays that a deed be set aside on the ground that its execmtion was procured by fraudulent representation of one of the defendants that it was simply a power of attorney, and the evidence shows that com'Plainant had never executed the deed, and that her signature thereto was a forgery, the variance is fatal.
Complainant took no steps to set aside the alleged fraudUlent deed for five yelU'll after its execllt;on, when she .instituted an action which at the end of two yearlt and a half was dismissed because not brought to a hearing. She then remained inactive for 10 years longer,during which time the land increased in value, and passed to third persons,. Who made. valuable improvements thereon. Held, that complainant's laches barred any equitable relief.
In Equity. H. Mo. Hitchings, for complainant. JohnW. Griggs and Michael Dunn, for defendants.