his part of the adulteration should have one Herman Stull, for $213.18, and the been proved, as required by the act; but defendants then allege an assignment to if the prosecution was for a violation of them by Stull of this judgment on the sec. 45 of the Sanitary Code-an ordi- 8th day of October, 1875, and further nance of the Board of Health-it was allege that the said assignment was made necessary, in order to make that section to them in good faith, and that for a valbinding, that it should have been prop- uable consideration, and without any erly published, and as a necessary legal notice whatever of the assignment to the sequence such publication should have plaintiff. The plaintiff moves for judgbeen proved, in order to justify a convic- ment upon these conceded facts, claimtion for the violation of any of its pro- ing that as the judgment assigned to the visions. The court could not assume defendants was recovered after the asthat this ceremony had been performed, and thus render proof of either the ordinance or its publication unnecessary. The conviction is erroneous, and must be reversed. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurring in the result. SET OFF. N. Y. MARINE COURT. Diossy v. Heuberer et al. signment to him, it can not be used as a set off to the claim in suit. Sec. 112 of the Code, among other things, provides that "In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set off or other defence existing at the time of, or before notice of the assignment.' The language of this section apparently authorizes the set off claimed by the defendants, but its spirit and meaning as judicially declared in reported cases do An assignment of chose in action will pass the title, so that a judgment sub-not. The Court of Appeals, in the case sequently recovered against the assignor of Beckwith v. The Union Bank of New can not be set off against it. York (9 N. Y. 211), held, that section 112, Opinion, McAdam, J. The defendants supra, was not intended to change the in their answer admit that Samuel Secor substantial rights of parties, but only to and John A. Secor performed work and introduce such alterations in the mode of furnished materials to the said defend-protecting them as were rendered necesants, at their instance and request, to sary by the provisions of sections 111 and the value and amount of $5,137.60; that 113, which require in most cases the real they paid on account $4,600, leaving party in interest to be plaintiff. This $537.60 due. They also admit that, on section (112), for example, would have the 18th day of Sept., 1875, the Secors, protected any payment by the defendants by an instrument in writing under seal, to the Secors, even after their assignment for a valuable consideration, assigned to the plaintiff, provided the payment said claims to the plaintiff, and they al- was made in good faith and without nolege by way of defence that since the tice of the assignment, but it was never commencement of the action, and on or intended to enable a defendant to purabout the 26th day of October, 1875, the chase a judgment recovered against an defendants paid to the plaintiff $324.12, assignor subsequent to a valid assignthereby reducing the claim sued upon to ment of a claim, and then use such a $213.18, and by way of defence to this judgment as an offset or defense to an admitted balance the defendants, plead action by the prior bona fide assignee of in due form, the recovery of a judgment the claim upon the mere allegation that against the Secors, on the first day of the purchase of the judgment was made October, 1875, in an action brought by without notice of the prior assignment of the claim. The defendants, by depart Defendant claimed that the action was ing from their usual course of dealing, not brought against the Company withassumed all the risks incident to their in a year from the time when the debt purchase, and must not complain of the became due. That the making of the result. The judgment purchased by note was not the creating of a new liathem having been recovered subsequent bility, but an extension of the old. to the assignment to the plaintiff, is The referee dismissed the complaint. neither an offset nor defence to his right On appeal. of recovery. (Ogden v. Prentice, 33 Barb., Held, We think the liability of stockp. 163; Lowell v. Lane, Ib., pp. 295, holders in such cases as this, cannot 502). And section 112 of the Code does not be revived or extended by any renewal or aid the defendants; the maxim "qui extension of the indebtedness, which the prior est tempore, portior est jure " must creditor may make with the corporation. prevail. Judgment is therefore rendered It is well settled in this State that the in favor of the plaintiff for $213.18, with giving of a note for an existing debt is interest; costs and 5 per cent. allowance. evidence merely of that debt. It does not extinguish the debt nor create a new one, but merely extends the time of its payment until the note becomes due. STOCKHOLDER. N. Y. SUPREME COURT-GENL. TERM. Parrott, applt. v. Colby, respt. The liability of a stockholder for the debts of a corporation cannot be revived or extended by any renewal or extention of the indebtedness. Appeal from judgment entered on report of referee dismissing complaint. The New York and Grass Valley Min Opinion by Davis, P. J., Brady and Daniels, JJ., concurring. TAXATION-LICENSE-EQUITY SUPREME COURT OF MICHIGAN. ing Company became indebted, hereto-Equity has no jurisdiction to restrain the fore, to plaintiff, in a large amount. Something more than a year after the debt became duc, arrangements were made whereby the Company gave its twelve month's note for a portion of the debt, paying the greater part of the remainder then. The note being dishonored, an action was brought, judgment obtained, and execution issued against the Company, and returned un satisfied. Defendant was a stockholder in the Company, and as such was sought to be charged to an amount equal to the amount of his stock, to be applied to the satisfaction of the judgment, on the ground that the capital stock of the Company had not been fully paid in, or any certificate to that effect filed, as required by the Act of 1848, under which the Company was incorporated. collection of a personal tax. There are complete remedies at law. A personal tax, not in judgment, can not be a cloud upon the title to real estate. Where an appeal will be dismissed for want of jurisdiction, yet should the public interest demand it by reason of serious delay in the collection of a necessary sum by taxation, the court will consider the merits of the controversy. Local taxation may be levied under gen eral laws. And taxes may be collected by the persons pressive, and it is one of the offices of ty, is not one that can be safely encourtaxation to remove by its burdens ob- aged or sanctioned. jectionable and injurious employments, occupations and offences. In effect, where the government seeks to protect, it does not tax at all. Taxation is not license. Abstract of the opinion, by Cooley, J. The bill in this case was filed to restrain the collection from the several complainants of a tax assessed against them separately in respect to the business in which they are engaged. It is a personal tax purely. It was decided at an early day in this State that equity had no jurisdiction to restrain the collection of a personal tax; even conceding it to be illegal, the ordinary legal remedies being ample for the party's protection, Williams v. Detroit, 2 Mich. 560. The principle has ever since been regarded as not open to controversy in this State, and it was applied without its soundness being contested in Henry v. Gregory, 29 Mich, 68, decided last year. In other States it is supported by a strong preponderance of authority, and a long array of adjudged cases. The question then presents itself, how did the bill come to be filed, and on what ground was the Superior Court asked to proceed, and why did it proceed to render a decision on the merits. The jurisdictional question has not been argued in this court; but we are not inclined to pass it over in silence, thereby giving countenance to the idea that by the mere acquiescence of parties, a jurisdiction may be made for a court of chancery, by means of which the extraordinary remedy by injunction can be made use of to restrain public officers in their action, where neither the legislation of the State nor the general principles which control the action of courts have ever given this remedy. The grounds suggested but not argued, as giving equitable jurisdiction in this case, are: 1st. That thereby a multiplicity of suits may be avoided. 2d. That otherwise the proceedings may ripen into a cloud upon the title to complainants' lands, and 3. That irreparable injury is threatened to complainants in their business. As the tax is only personal, and as yet affects no real estate, and may never do so, the second ground calls for no consideration. The force of the third must rest in the fact that enforcing the tax may in some cases compel the suspension of business, because it is more than the person can afford to pay. But if this consideration is sufficient to justify the transfer of a controversy from a court of law to a court of equity, then every controversy where money is demanded may be made the subject of equitable cognizance. To enforce against a dealer a promissory note may in some cases as effectually break up his business as to collect from him a tax of equal amount. This is not what is known to the law as irreparable injury. It is true the federal courts have treated the unlawful taxation of a franchise as a case of possible irreparable injury. Osborn v. U. S. Bank, 9 Wheat. 738. But this was on the ground that the tax, if enforced, might destroy the franchise, and in effect the corporation itself, the artificial person which was taxed. The case has little analogy to that of the taxation of a particular business, carried on by individuals. If the complainants rely upon the first ground suggested, that equity may interThe writ of injunction is peculiarly fere, because thereby a multiplicity of liable to abuse, and the practice of re- suits may be prevented, that reliance sorting to it in cases where it is not al- fails them, because the principles that lowed by law, relying upon the opposite govern that jurisdiction have no applicaparty to overlook or waive the regulari-tion to this case. It is sometimes admis sible when many parties are alike affected this jurisdiction. If he had it could be of no avail, especially in a case like the present, where he is acting in a public capacity, and in behalf of the public, whom for any such purpose he has no authority to represent. The question then arises whether, the case being one of which the court below had no jurisdiction, this court on appeal shall proceed to express an opinion upon bear upon that question are conflicting. As a general rule an opinion on the or threatened by one illegal act, that they shall unite in a suit to restrain it; and this has been done in this State in the case of an illegal assessment of lands, Scoville v. Lansing, 17 Mich, 437. But the cases are very few and very peculiar where this can be permitted, unless each of the complainants has an equitable action each on his own behalf. The nature of this case is such that each of these the merits. The considerations which complainants has, "if the tax is involved, a remedy at law as effectual and ample as the law gives in other cases." He merits of a controversy ought to be demay resent the sheriff's process as he clined where the court is powerless to give might any other trespass, or he may pay the relief demanded. But this case is in the money under protest and at once sue many particulars exceptional. The legal for, and receive it back. But no other points involved have been presented in complainant has any joint interest with good faith, the State has participated in him in resenting this tax. The sum de- the argument, and there is, we think, manded of each is separate and distinct, abundant reason apparent upon the reand it does not concern one of the com- cord for believing the public interest deplainants, whether another pays or not. mands an early determination of the All the joint interest the parties have questions involved. The pendency of is a joint interest in a question of law-this suit has to some extent delayed for just such an interest as might exist in a considerable period the enforcement any case where separate demands are made upon several parties. Suits do not become of equitable cognizance because of their number merely. Considered as a controversy which effects all the persons taxed, this suit would wholly fail in the purpose of preventing a multiplicity of suits, because the court in which it was brought has only a local and limited jurisdiction. Other suits might be brought outside of Detroit and in every county in the State. On this general principle we content ourselves with referring further to Jones v. Garcia, 1 Turn. and Russ. 297; Yeaton v. Lenig, 8 Pet. 193; and Adams Eq. 198–202. of a State law which is supposed to be of high importance, and if this case should go off on the jurisdictional question, there is reason to look for other and further litigation which would constitute a ground, or at least a pretence for further delay. Under all the circumstances we are agreed that an examination of the case on the merits, and an opinion thereon, are not only justifiable, but are demanded by considerations of public importance. The question which lies as the foundation of the legislation, relates to the validity of the act for the taxation of the liquor traffic, passed May 3d, 1875. If the merits of the controversy were The complainants, it appears, have with the complainants, the bill would severally been assessed a tax as dealers in nevertheless be dismissed, because the liquors, and they contest the payment on parties have no standing in a court of the ground that the legislature had no equity. They cannot make remedies for constitutional authority to impose it. A themselves which the law does not give number of reasons are assigned for the them. We do not know whether the de- invalidity of the tax, and we shall confendant has in any manner assented to sider them separately. 3d. It is argued that the tax is void as 1st. It is objected that the tax is a court. Courts cannot amend tax laws, State specific tax, and that the law im- because of their operating unequally and posing it is unconstitutional because it unjustly. If they could, they might dedevotes the money raised to the use of feat all taxation, for there never was a the towns, villages and cities in which tax that was not more or less unequal the business taxed is carried on in viola- and unjust in its practical operations. tion of Art. 1. Sec. 14 of the Constitu- But the objection to a want of uniformition which provides that "all specific ty is wholly misplaced. It presents a State taxes, except those received from case of the misapplication of terms. the mining companies in the upper Uniformity is the very basis of the tax. Peninsula State, be applied to payment It is levied without discrimination, and of the interest on the Primary School, that is the real objection made to it. University and other educational funds, But that is not a question here. Apetc. The only question that arises upon portionment of taxation is purely a legislathis objection is whether there is a State tive question. And this will meet any tax or not. It was settled in People v. objection here to the law, based upon the Wolcott, 17 Mich., 68, that the State fact that other kinds of business are not might pass Laws for the levying of new similarly taxed. specific taxes, and in Kitson v. Ann Harbor, 26 Mich, 325, that local specific a local tax because the municipality have taxes might be authorized. The substan- no voice in its levy and collection. This tial difference between this and the last argument is sought to be maintained case cited consists in the fact that the by reference to decisions of this court, tax was levied under a city ordinance, affirming the right of municipality to deand here it is levied by general law. In cide for themselves whether they would both cases the money was to be put to lo- | burden their property with taxes for cal purposes. In one case the State levies the tax, in the other the State authorizes the tax. All taxation must be authorized by the State; and we know of no reason why all taxation, for the ordinary purposes, government may not be levied under general laws, when no express provision of the constitution forbids it. Such legislation is no novelty in this State or elsewhere. The school mill tax was collected under a general law, but was nevertheless put to the uses of the community which paid it. It was in no proper sense anything more than a local tax. Neither is the tax now in question. 2d. It is claimed that the tax is invalid because it is not levied on any principle of uniformity, and therefore lacks one of the essential elements of lawful taxation. new local purposes, in which the people of the State at large had no interest. There is nothing of the kind here. The legislation proposes to make municipal burdens lighter instead of heavier. When the city of Detroit shall object to having the money thrust upon her, it will be time enough to inquire whether any of her privileges are taken away by this law. The complaint of any local rights as nvaded comes from the wrong source. The parties whose interests are directly antagonistic to those of the city in the particular matter in controversy, are not to be heard of acting in her behalf; that her rights are violated in the collection of a tax for her use. But the purpose of this legislation, so ar as it involves local rights, is decidedly It may possibly be that an apportion-opposite to that which was held to be ment according to the business done would inadmissable in People v. Hurlburt, 24 have been more strictly just. But this Mich., 44, and Park Commissioners v. is a question for the legislature, not the City Council, 28 Mich, 228. The legisla |