ient of a common benefit to contribute to the burden which it imposes. But it is due the credit of the appellant's counsel that they did not base the appellant's claim for relief upon the technical irregularity referred to. They placed it upon fair legal grounds; contended that B. F. Dowell had some kind of an estate in the lots, and that the sale under the proceeding to Monastes divested Mr. Dowell's interest, and that Monastes acquired it under the purchase. If their position had been correct,-if the mere right of the person named in the entry made in the city lien docket as owner was affected, there would have been much force in the position. A part of the relief demanded in the complaint was that the deed from Lappeus, chief of police, to Monastes be declared only a conveyance to the latter of the possession of Mr. Dowell to said lots during the five days before mentioned. Said counsel did not question the regularity of said sale. They claimed that it was regular, and conveyed an actual subsisting interest in the property, though a very slight one, to Monastes. If the sale had had such effect, the argument would have been conclusive; but it did not. It did not convey anything,-not even Dowell's said five days' possession. Such a proceeding is not against an owner or occupant of the property, it is against the property itself. The city charter requires that the statement entered in the docket of city liens shall contain the name of the owner, or that the owner is unknown. This provision was not complied with. B. F. Dowell in nowise was the owner of the lots in the sense intended by the charter, and for that reason the sale to Monastes was wholly inoperative, not because the previous proceedings were irregular, for they were not,-they were regular and valid up to that time, but the issuance of the warrant for the sale of the lots to satisfy the demand was irregular, in consequence of the entry in the lien docket of a wrong statement as to the ownership.

The matter was not, however, in the condition of the case of The Fideliter v. U. S., 1 Sawy. 153, nor of that of Pennoyer v. Neff, 95 U. S. 714. In those cases the whole proceedings were void ab initio. In the former one it was held that an actual seizure must be made of a vessel before any judicial proceedings are instituted to condemn it for a violation of the navigation laws of the United States, and in the latter that a substituted service of process was not sufficient to confer jurisdiction where the property was not brought under control of the court by seizure under an attachment. It was more like a case, as before suggested, of a judgment recovered but not docketed. sale of the property before the lien of the assessment attached conveyed no interest in it whatever, and the lien did not attach until there was the entry of the statement in the city lien docket containing the name of the true owner of the property affected, or that the owner was unknown. A sale made before the cost of the improvement was apportioned would have been as effectual to pass title as this one. The issuance of the warrant, and all proceedings had

A

thereon, were, as said by Judge SAWYER, "utterly void, and of no more legal force than so much blank paper,"-were, "in legal contemplation, no acts."

But the prior proceedings were not affected. The improvement of the street had properly been ordered, the cost legally ascertained and determined, the apportionment duly made upon the lots chargeable therewith, and the work completed. The power, however, to enforce payment had been interrupted by the failure to enter a true statement as to the ownership of the property as mentioned, and the council was compelled to go back to the point in the proceedings where the fault occurred and begin over. Had it occurred in the outset, in some preliminary step authorizing the proceeding to improve the street, such as giving notice of the proposed improvement,-the whole affair would have been upset. There would have been no foundation to support it. But jurisdiction had attached, the proceedings were regular and valid up to the time of entering the statement, and a failure to enter a statement at all, or an improper one, which would be no statement, could not have invalidated the previous proceedings. All the council had to do was to go back to the point where the break occurred, and require that done which ought to have been done when the first attempt was made. There are cases, as said Himmelmann v. Cofran, supra, in which a defective execution of a power exhausts the power, but, as there said, "it is when the nature of things is such that it cannot be but once exercised," or, in other words, be but one attempt to exercise it. The case of the assessment of property by a county assessor for the purposes of taxation is an example. The assessor is required to perform his duties within a certain period, and turn over the assessment made to the county court. After so doing he would not, of course, have any right to correct his work; but there is no such limitation upon the power of the common council of the city of Portland. That is a continuous body, holding by perpetual succession. Its power is not limited by any definite period of time, nor exhausted except by a performance of the thing it is empowered to do, unless circumstances have intervened to prevent. If the appellant had transferred the lots in question to an innocent purchaser, after the entry of the said statement, it might have had the effect to defeat the right of the council to correct the error committed; but that would have resulted from another principle of law. As the matter stood, however, I am convinced that it had full right to cause a proper statement to be entered in the city lien docket. It is true that the city had got Monastes' money bid for the lots on the bogus sale, but it had no right in justice to keep it. The sale under the proceedings was an assurance that the requirements of the charter had been complied with; and it has been held that when a sale is void the amount received by the city therefrom must be refunded. Mayor of N. Y. v. Colgate, 12 N. Y. 140, 147; Corbin v. Davenport, 9 Iowa, 239; Chapman v. City of Brooklyn, 40 N. Y. 372; Newman

v. Supervisors of Livingston Co., 45 N. Y. 676. 1 can discover no good reason why such should not be the rule within the principle laid down by Judge FIELD in Argenti v. San Francisco, 16 Cal. 255-282. He there says:

"The doctrine of implied municipal liability applies to cases where money or other property of a party is received under such circumstances that the general law, independent of express contract, imposes the obligation upon the city to do justice with respect to the same. If the city obtain money of another by mistake, or without authority of law, it is her duty to refund it, not from any contract entered into by her on the subject, but from the general obligation to do justice, which binds all persons, whether natural or artificial."

Judge DILLON has attached sufficient importance to this language to incorporate it as a part of the text in his work on Municipal Corporations. Section 384, (2nd Ed.)

If the rule is as suggested, then Monastes can claim from the city the money paid, and the tax assessed against the lots must either be borne by the appellant or the tax-payers of the city generally. That the latter result would be an injustice and wrong could not be truthfully denied. For my own part, I am not willing to adhere to any capricious ruling in order to shield the appellant from the payment of her own debt, and enable her to shift it upon parties who have received no special benefit of the consideration out of which it arose. Nor do I believe the law, properly understood and administered, would countenance any such determination. I do not think the appellant is entitled to any relief in the case, and that the decision of the circuit court upon the demurrer should be sustained.

(69 Cal. 120)

SUPREME COURT OF CALIFORNIA.

BYRNES v. CLAFFEY. (No. 9,301.)

Filed March 23, 1886.

PAYMENT APPLICATION OF PAYMENTS.

Money paid to a creditor on account of his debtor may, in California, be applied towards the extinction of any obligation due him by the debtor, unless the latter manifests an intention that the money should be applied to some particular obligation.1

Commissioners' decision.

Department 2. Appeal from superior court, county of San Mateo.
E. A. & G. E. Lawrence, for appellant.
Fox & Ross, for respondent.

SEARLS, C. This is an action upon a promissory note for $900, made by defendant on the twentieth day of November, 1871, payable to plaintiff five days after date, with interest at 1 per cent. per month. Plaintiff had judgment for $916.60, from which, and from an order denying a new trial, defendant appeals. Plaintiff was a merchant, and as such had an account with defendant, which, at the date of the note, was settled by the giving of such note. Defendant made two payments, one of $374 on the twenty-eighth of December, 1871, and the other of $101.40, about May 28, 1872, which were credited on the note. It appears that on September 24, 1873, plaintiff received for account of defendant from George Fox $220, and in December, 1874, from one Kelso $250; also in October, 1874, $15 in cash, which sums defendant claims should be credited on the note. Plaintiff, on the other hand, asserts that defendant had in the mean time become indebted to him on a new book-account since the note was given in an amount in excess of the payments; that most of this was for cash advanced to defendant, and for mules sold to him, and that, as defendant did not direct him where to apply the payments, he applied them, at the date of payment, in part satisfaction of the open account.

The findings are in accord with the theory of the plaintiff, and are amply supported by the evidence. Indeed, about the only evidence which militates against plaintiff's theory is a statement of account made out by one Lovell, a clerk of plaintiff, since suit brought, in which defendant is allowed interest on the several payments as though made. upon the note, and not upon the open account. This statement, plaintiff testifies, is not in accord with the books by kim kept; and, as he presented his books at the request of the defendant, and as the latter makes no pretense that they contradict the testimony of the

See note at end of case. v.10p.no.5-21

plaintiff, we may assume that they corroborate his statement. The testimony of Lovell also lends strength to the testimony of plaintiff, in several respects, though in others it seems to conflict therewith. The Civil Code, § 1479, provides:

"Where a debtor, under several obligations to another, does an act, by way of performance, in whole or in part, which is equally applicable to two or more of such obligations, such performance must be applied as follows: (1) If, at the time of performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particular obligation be manifested to the creditor, it must be so applied. (2) If no such application be then made, the creditor, within a reasonable time after such performance, may apply it towards the extinction of any obligation, performance of which was due him from the debtor at the time of such performance; * * * and an application once made by the creditor cannot be rescinded without the consent of [the] debtor."

The payments were applied in accordance with this rule, and the judgment and order appealed from should be affirmed.

We concur: FOOTE, C.; BELCHER, C. C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

NOTE.

A debtor, when making a payment, has the right to direct its application. Michigan Air-line Co. v. Mellen, (Mich.) 6 N. W. Rep. 845; Miles v. Ogden, (Wis.) 12 N. W. Rep. 81; Mack v. Adler, 22 Fed. Rep. 570.

The rule as to voluntary payments is that the debtor may direct the application of such payments upon one of several debts due from him to the creditor. Nichols v. Knowles, 17 Fed. Rep. 494.

A voluntary payment, within the meaning of this rule, is one made by the debtor on his own motion, and without any compulsory process. A payment made upon execution does not fall within the rule. Id.

A debtor may direct, upon paying money to his credit, the appropriation of it to a particular account or item of indebtedness; but if he make or indicate no such appropriation, the creditor may apply the money as he pleases. Mackey v. Fullerton, (Colo.) 4 Pac. Rep. 1198.

Upon the neglect of a debtor to direct the application of payment made by him, the creditor may make such application as he sees fit. Corliss v. Grow, (Vt.) 2 Atl. Rep. 388. See Marye v. Strouse, 5 Fed. Rep. 483.

A creditor receiving payments without any directions as to application, may appropriate them to any debt, not illegal, even though it would not support an action; e. g., a debt on which no action would lie by reason of the statute of frauds. Haynes v. Nice, 100 Mass. 327.

Where money has been received in part payment of a running account, and no specific application has been made of the same, a chancellor can. in his discretion, apply such money to that portion of the account which remains unsecured, without regard to the order of time in which the indebtedness for the several items of the account was incurred. Schuelenburg v. Martin, 2 Fed. Rep. 747.

In a case of voluntary payments made by the debtor, where no application is made by either party, and there is but one continuous account of several items, forming one and not separate or distinct debts, the payment will be applied on the account according to the priority of time; that is, the first item on the debit side of the account will be discharged or reduced by the first item on the credit side. Hersey v. Bennett, (Minn.) 9 N. W. Rep. 590. See Kenton Furnace & Manuf'g Co. v. McAlpin, 5 Fed Rep. 737.

The rule for the appropriation of payments on running accounts is that the first item on the credit side of the account will be applied to extinguish the first item on the debit side of the account. Mack v. Adler, 22 Fed. Rep. 570.

Payments on account, not applied by either party at the time, will be applied by the court as equity may require; and, in case of an open running account, would be ap.