The record-union., 1898-10-29

indorsed upon the back of the coupons,
are entitled to be first paid
This decision has been acted on by
all subsequent Treasurers of the city
of Sacramento down to the present
time, and has never been questioned,
and has become, and is, the law con-
corning the order Of payment of de-
mandS maturing against the city of
Sacramento. 1t must certainly be re-
garded as just and equitable rule,
and it conforms with the general prin-
ciples which govern in the appropria-
ton of payments in cases where a pay
ment has been made by a debtor to a
creditor without any instructions being
given as to the claims to which it
should be applied. In these cases the
courts have many times decided that in
the absence of controlling equities, the
payment will go to discharge the OBJ
legations in the order of their matur-
ity. Pickering VS.. Day, 90 Am. Dec.
vi; Thompson VS.. st. Nicholas Ma
tional Bank, lib N. Y. 325; BARRIERS
Law of Payments, page 391; Pome-
roy's Eq Jur. Sec. 67S.
When Judge Mcfarland decided the
Meyer case, the only things presented
for his consideration were interest
coupons, for, at the date Of his decis-
ion, none of the bonds had matured
From the date of their maturity it cam
not be doubted that the principal and
interest Of the obligations would stand
on the same footing as to priority and
manner of payment
The evidence is conclusive that prior
to filing his petition in this case, the
petitioner presented his bond to the
Treasurer of the city of Sacramento at
his office, and demanded payment Of
the principle and interest of his OBJ
legation and offered to surrender same
to the Treasurer upon payment being
made. AT this time it was also con-
clusively proved that the Treasurer
had in his possession, in the interest
and sinking fund, a sufficient amount
of money to pay this demand, and
that this money was applicable to such
payment. 1t follows from the forego-
ing that the petitioner was entitled to
payment when he made his demand,
and it was the duty Of the Treasurer
to have paid the same
There is one other defense asserted
which requires consideration. The law
requires 30 per cent. of the gross water
receipts to be paid into the interest
and sinking fund, and it is admitted to
be the fact that for many years less
sum was actually so paid to that fund
from the water receipts. 1t is insisted
that, as a matter of law, there always
was in the interest and sinking fund
in the City Treasury SO per cent. of
the gross water rents, and that it was
the business Of the bondholder to see
to it that his money was paid to him
and not diverted to other uses. This
contention, / think, is answered by the
decision heretofore quoted, of Freehill
VS.. Chamberlain. Certain it is that the
bondholder did not have control of
the city funds, nor was he charged
with their appropriation. The Treas
urer was the officer of the city, and if
he failed to perform any duty relative
to proper appropriation of the city
funds, his dereliction cannot be charged
to the bondholder any more than it
could if the money in the interest fund
was stolen. In such a case it could not
be successfully contended that the
bondholder must lose because an officer
Of the city embezzled funds which 9TH
erwise the bondholder would have re-
ceived in payment of his demands.
My understanding of the law is that
where a statute provides a fund for
the payment of demands, and directs
annual revenues to be raised therefor,
the holder of those demands can safe
ly wait until such time as the money
has actually been paid into that fund,
and is applicable to his demands, be-
fore commencing proceedings to enforce
payment. As was said by the Supreme
Court Of the United States, in the case
of Lincoln County VS.. Luning, reported
in 133 u. S., page 5333: When payment
is provided for out of particular
fund, to be created by the act of the
debtor, he cannot plead the statute Of
limitations until he shows that the
fund has been provided
I conclude that the petitioner is en-
titled to a writ of mandate, directed
against the respondent as Treasurer of
the city of Sacramento, comma nding
him to pay from the interest and sink
ing fund in his possession the principal
and interest of the demand set forth
in his petition.
Smokes Like Ten-Center.
A 5-cent cigar that smokes like