her previous indebtedness as an excuse for the detention of the money to which she had no legal or equitable right? Suppose, again, the city should neglect to keep the streets in repair, and an individual should be injured in consequence should break his leg, or be otherwise crippled-could she allege her insolvency against his claim for damages? Would her pecuniary condition be an answer for the neglect of every duty, legal and moral? If this were so, she would be the most irresponsible corporation on earth, and her treasury would be, in many instances, but a receptacle for others' property, without possibility of restitution. The truth is, there is no such exemption from liability on her part. The same obligations to do justice rest upon her as rest upon individuals. She cannot appropriate to her own use the property of others, and screen herself from responsibility upon any pretense of excessive indebtedness."

As will be seen from this brief statement of the questions settled in the several cases heretofore before the court, there is nothing to prevent a recovery of the claimants in the alleged want of privity between the bidders and the city, or in the alleged subsequent adoption of the ordinance providing for the sale, or in the alleged ratification of the sale, or in the restraining clause of the charter. The several cases stand simply upon this ground: The city has obtained the money of her citizens without any consideration, under a mistaken impression of her rights, and has appropriated it to municipal purposes; and they insist, and so we have held, that she is, under these circumstances, bound, both legally and morally, to refund it to them.

The suggestion, frequently made in the cases, that the claimants are taking advantage of a mere technical defect, and that had they remained contented with the sale they would not have been disturbed in their possession, is without force. That defect which vitiates entirely a sale and leaves the title of the property in the city, can hardly be termed a technical one. It is a defect which goes to the substance of the whole transaction. Nor is it by any means certain that the bidders would have been left in undisturbed possession of the property had no question as to the validity of the alleged sale been raised.

They could have no assurance that subsequent corporate authorities might not claim the property; or if the authorities did not move in the matter, that the creditors of the city might not attempt to subject the property to the satisfaction of their demands. But, independently of these considerations, it is enough to say that the bidders had a clear right to ask for a return of their money when they found that the title had not passed to them and could not pass by the proceedings taken. They were not under any obligations to wait a moment. The money was paid for a present, not a future transfer of the title. But the bidders were more indulgent than this. It appears from the findings in one of the actions (Grogan v. San Francisco, 18 Cal., 587) that in January, 1855, they became aware of the invalidity of the sale and apprised the then common council of the city of its invalidity, and requested them to pass an ordinance ratifying and confirming the sale, which they refused to do. It is true that the common council did not possess the power to ratify and confirm the sale, but they could have applied to the legislature then in session for the power. No steps of the kind were, however, taken. There was only one alternative left to the bidders-to institute suits for the recovery of their money, which they subsequently did. Again, in 1858, the legislature passed an act authorizing the treasurer of the city to execute deeds to the purchasers upon receiving the balance, if any remained unpaid, of the original bids; and provided that such deeds should convey the right, title and interest, both of the city and of the city and county, in the property. But this act the city neglected to accept, and without her acceptance it never acquired any force or efficacy whatever. It undertook to divest the city of her property upon conditions imposed by the legislature, and not by herself. The conveyances of the treasurer under the act were, therefore, inoperative to pass any interest, and the title to the property remained as before in the corporation. (Grogan v. San Francisco, 18 Cal., 590).

In the present case the city sets up as a bar to the plaintiffs' recovery the statute of limitations. With the policy of a defense of this character on the part of the city we have nothing to do. The defense is a legal one and our duty ends with a

determination whether or not it has been sustained. The action is for the recovery of $7,900, paid upon the alleged sale of one of the parcels of slip property. The complaint alleges that $1,975 were paid on the twenty-seventh of December, 1853; $3,950 on the twenty-seventh of February, 1854; and the balance, $1,975, on the twenty-seventh of April, 1854; and that these several sums were received by the city on the respective days of their payment. The referee finds that the several payments were made to the city and accepted by her as alleged in the complaint. In the other actions which have been before this court growing out of the alleged sale, it has appeared that the moneys were in the first instance paid to the mayor and land committee, and by them paid into the treasury of the city, on or about the twenty-eighth of. April, 1854. The payment at this date does not appear to have been proven in this case. The defense is, therefore, sustained as to the first two installments and is not sustained as to the third. The complaint was filed on the twenty-first of April, 1856, more than two years after the payment of the first two sums, and within two years after the payment of the last sum. The statute was a bar after two years from the receipt of the money by the city. Whether that receipt must be evidenced by a refusal to refund the moneys, or their appropriation to municipal purposes, it is not necessary to express any opinion. The allegation and the finding are both that they were received by the city at the several dates designated.

The position that the filing of the complaint, without the issuance of summons thereon, did not prevent the statute running, is not tenable. At common law there was no limitation to the period within which actions could be commenced, though a presumption was created that the claim was satisfied by the lapse of twenty years. It is the statute which prescribes the limitation, and in this State the same statute declares that an action shall be deemed commenced, within its meaning, "when the complaint has been filed in the proper court." It was certainly within the legislative power to affix this qualification upon the provisions of the statute, though grave considerations as to its policy may be presented, as they

have been by the learned counsel of the appellant in the present case. (Sharp v. Maguire, 19 Cal., 597).

JUDGMENT REVERSED AND CAUSE REMANDED FOR A NEW TRIAL.

WHEN THE MONEY ADVANCED MAY BE RECOVERED BACK.

TWENTY-SECOND SELECTED CASE.

DILL ET AL. v. INHABITANTS OF WAREHAM.*

A town, in its corporate capacity, has no authority to transfer the right of taking oysters within its limits, and any contract made by a town for that purpose is void.

Where a party receives money in advance, on a contract which he had no authority to make, and afterwards refuses to fulfill the contract, the other party may recover back the money, in an action for money had and received. In such case no previous demand of the money need be averred or proved.

ASSUMPSIT on an agreement set forth. There was also a general indebitatus count for money had and received. The count on said agreement, after stating the contents thereof, averred that the plaintiff's had kept and performed their part of it, in all respects, and that the same had not been lawfully terminated; "yet, although the defendants, for a time, also performed their part of said agreement and furnished the permits required by law to authorize and protect the plaintiffs in fishing for and taking oysters pursuant to said agreement, they afterward violated their said agreement and utterly refused to grant to said plaintiff's the necessary permits to authorize and protect them in fishing for and taking oysters under said agreement, and forbade the plaintiffs from taking the same, contrary to the true intent and meaning of said agreement, and have permitted other persons to take the same; whereby the plaintiff's have been put to great expense for vessels and men employed for the purpose, and have lost the profits secured to

*Reported in 7 Met. (Mass.), 438 (1844).

them by said agreement," etc. Plea, general issue, with a specification of defense.

At the trial before WILDE, J., the plaintiffs, to maintain the issue on their part, produced a copy of a vote passed by the defendants at a meeting held on the 17th of July, 1837, agreeing "to dispose of such portion of the oysters in the waters of said town, as may be thought advisable by a committee to be appointed to have a superintendence of the subject;" a copy of a vote, passed at the same meeting, that the four persons who signed the agreement declared on by the plaintiffs, with Joshua B. Tobey, be a committee "to obtain such information as is necessary, and be empowered to make sale of such quantities of the oysters belonging to the town as they may think for the interest of its citizens, or for such time not exceeding ten years, giving a preference to the inhabitants of the town, in the sale thereof;" and the agreement declared on, the execution of which was admitted by the defendants.

To support the count for money had and received, the plaintiffs gave in evidence a receipt signed by the defendants' treasurer, dated February 29, 1840, for $500, paid him by the plaintiffs, "which they were to deposit in the hands of the treasurer as a security for the payment for the oysters which they may take the ensuing year."

To show a breach of said agreement by the defendants, the plaintiffs read (among other papers) the following vote, passed at a meeting of the defendants, held on the 8th of September 1838: "Voted, that the selectmen be hereby advised to grant no more permits for taking of oysters from any beds in the town of Wareham, until the whole legal controversy, with which the town is threatened on account of the appropriation of the oyster money, be finally settled; and that the selectmen inform the gentlemen who took the oysters last season, that they must consider their contract (if any they have) at an end; and if any damage shall accrue to said gentlemen on account of boats or apparatus, that the selectmen settle with them fairly and honorably, by allowing them a fair price for their boats, etc., or otherwise, as in their judgment the honor of the town shall require." Also the following