made by them. The only difference between an express contract and an implied contract is that in the former all of the terms and conditions are expressed between the parties; in the latter some one or more of the terms and conditions are implied by law from the conduct of the parties. Generally, express contracts with a municipality are made under the system of competitive bidding. Usually, this is made compulsory by law. To say that implied contracts were not prohibited would be to destroy the purpose and efficiency of the laws, and leave the people at the mercy of careless or unscrupulous officers. The case of Smith v. Albany, 61 N. Y. 444, is very similar to the one at bar. The council of the city, of which plaintiff was a member, appropriated two thousand five hundred dollars for defraying expenses of a Fourth of July celebration. Upon the day plaintiff furnished horses and vehicles for use in the celebration, and the fair value of their use was the sum of one hundred and thirty-nine dollars. The New York statute made it unlawful for a member of any common council to become a contractor under any contract authorized by the common council, and authorized such contracts to be declared void at the instance of the city. Here was an implied contract, but it was one prohibited by the statute law, as well as by considerations of public policy, and the plaintiff was denied any recovery. Our statutes are general in prohibiting any officer from being interested in such contracts, and, if ever there was an occasion for its strict enforcement, it certainly exists in a case such as this, where the contractor is a member of the common council whose duty it is to make such contracts on behalf of the city. He cannot be permitted to place himself in any situation where his personal interest will conflict with the faithful performance of his duty as trustee, and, it matters not how fair upon the face of it the contract may be, the law will not suffer him to occupy a position so equivocal and so fraught with temptation. Note the illustration here presented. This material was obtained from a member 129 of the city council, and he, as a member of that council, sits in judgment upon the validity and amount of his own claim. If he does not act, still the city is deprived of its right to his services and knowledge in determining these very questions.

The fact that the claim was allowed by the council does not give to it a validity which it otherwise did not possess: Santa Cruz etc. Co. v. Broderick, 113 Cal. 628. The duty of the treasurer is to pay only legal demands against his funds. The law will not imply a promise to pay for services illegally ren

dered under a contract expressly prohibited by law: Gardner v. Tatum, 81 Cal. 370.

For the foregoing reasons the judgment is reversed, with directions to the trial court to sustain the general demurrer to plaintiff's complaint.

Temple, J., and McFarland, J., concurred.

ACTION UPON CONTRACTS FORBIDDEN BY LAW OR SUBJECT TO A PENALTY.-There can be no recovery upon a contract prohibited by law: Persons v. Jones, 12 Ga. 371, 58 Am. Dec. 476; Linn v. State Bank, 1 Scam. 87, 25 Am. Dec. 71. Business transactions in violation of law cannot be made the foundation of a valid contract: Buckley v. Humason, 50 Minn. 195, 36 Am. St. Rep. 637. There can be no recovery on a contract the making of which is punishable by statute, although the statute does not, in express terms, prohibit the contract, nor pronounce it void: Sandage v. Studabaker Mfg. Co., 142 Ind. 148, 51 Am. St. Rep. 165; Youngblood v. Birmingham etc. Co., 95 Ala. 521, 36 Am. St. Rep. 245; Woods v. Armstrong, 54 Ala. 150, 25 Am. Rep. 671. Contracts violating a public statute are equally void whether the prohibition is express or implied; that is, whether the statute expressly prohibits the thing to be done, or only imposes a penalty on the person doing it: Ohio etc. Trust Co. v. Merchants' etc. Trust Co., 11 Humph. 1, 53 Am. Dec. 742. Whether a contract is malum prohibitum or malum in se, is not material; for, in either case, the courts will not enforce it: Ohio etc. Trust Co. v. Merchants' etc. Trust Co., 11 Humph. 1, 53 Am. Dec. 742.

MUNICIPAL CORPORATIONS-CONTRACTS FORBIDDEN BY LAW-RECOVERY UPON.-A contract made by a common council of a city in disregard of charter or statutory provisions cannot be the ground of any claim against the city: Zottman v. San Francisco, 20 Cal. 96, 81 Am. Dec. 96; note to Leavitt v. Palmer, 51 Am. Dec. 341. Officers cannot be interested in contracts pertaining to their office, and one who does an act forbidden by law cannot acquire any rights therefrom. A statute forbidding a county supervisor from being a party to, or in any manner interested in, a contract with the county for the purchase of any article whatever, applies to executed as well as to executory contracts: Land etc. Lumber Co. v. McIntyre, 100 Wis. 245, 69 Am. St. Rep. 915, and note.

PRESENTATION OF ILLEGAL CLAIMS AGAINST MUNICIPALITIES-ALLOWANCE OF, AND ITS EFFECT.-The allowance of a claim against a municipality, which is not authorized by law, is void, and does not estop the municipality from defending against it: See monographic note to Commissioners v. Heaston, 55 Am. St. Rep. 204, on the effect of the allowance or rejection of claims against counties and other municipal corporations.

MANDAMUS-PAYMENT OF WARRANTS.-Mandamus is the proper remedy to compel a city treasurer to pay warrants properly drawn upon him: Savage v. Sternberg, 19 Wash. 679, 67 Am. St. Rep. 751. Compare note to Board of Commrs. v. Nichols, 54 Am. St. Rep. 530. But where the right to have the thing done, which is sought for, is doubtful, the writ will be refused: Mobile etc. R. R. Co. v. People, 132 Ill. 559, 22 Am. St. Rep. 556; Swift v. Richardson, 7 Houst. 338, 40 Am. St. Rep. 127.

ESTATE OF WALKER.

[125 CALIFORNIA, 242.]

FICTIONS OF LAW ARE INDULGED TO WHAT EXTENT -MAXIM.-All fictions of the law were created to enable the court to do justice. In fictione juris semper aequitas existit. But where the indulgence of a legal fiction will work injustice, its just limit has been found. A court will never allow it to work wrong and injustice.

FICTIONS OF LAW-DEBT OF ADMINISTRATOR.-The fiction of law that a debt of an administrator is to be considered as money on hand is based upon the supposed ability of the administrator to pay, and will not be allowed to work injustice against an insolvent administrator, by placing him in such a position that he might be charged with contempt or embezzlement for a failure to pay over moneys not received, and which he was unable to pay, or by charging his sureties with liability beyond the faithful discharge of the duties of the administrator.

EXECUTORS AND ADMINISTRATORS-DEBT OF INSOLVENT ADMINISTRATOR--LIABILITY FOR.-An administrator is to be charged with a personal debt due from him to the decedent as money on hand, but he, as administrator, and his sureties, are not bound for the debt any further than the administrator has had the means to pay. Hence, if he has, at all times since his appointment, been unable to pay anything on the debt, they are not liable at all.

EXECUTORS AND ADMINISTRATORS-DEBT OF INSOLVENT ADMINISTRATOR-FINAL ACCOUNT-EVIDENCE.Upon the settlement of the final account of an administrator, who owes a debt to the decedent, there is no error in rejecting evidence that he has never, at any time, while administrator, had the means to pay the debt or any part thereof. The rights of the administrator, so far as to protect him against the consequences of charging him with the debt as money on hand, should be fixed by the decree settling the final account.

ADMINISTRATORS DEBT DUE

EXECUTORS AND FROM ADMINISTRATOR-FINAL ACCOUNT-DECREE.-THE PROPER FORM of a decree settling the final account of an administrator, who owed a debt to the decedent, but which, through the administrator's insolvency and inability to pay, has, without any fault of his, not been collected, is to charge the administrator with all moneys coming into his hands, including the debt due from himself, and then designate what portion of the entire sum consists of personal debts due the estate from the administrator, reported by him as cash on hand. This would protect the adminis trator, and the heirs could still proceed against him to collect the amount of his debt, if he acquires the means to pay it.

Appeal from a decree settling the final account of an administrator.

J. M. Thompson, for the appellant.

J. R. Leppo, for the respondent.

243 TEMPLE, J. The appellant, J. M. Walker, is the administrator of John Walker, deceased, and the appeal is from

the decree settling his final account as administrator, he having resigned his trust.

Before the death of John Walker appellant was indebted to him in the sum of eight thousand dollars, with interest, and alleges that he was at the time of his appointment, and ever since has been, entirely insolvent. Upon the settlement of his final account he offered evidence to prove his insolvency, and that the debt due from him to the estate remained uncollected without his fault. An objection was made to the offered evidence on the ground of incompetency, irrelevancy, and immateriality, and because the matter has been adjudicated and settled in the decree settling the annual account. For the purposes of this appeal, therefore, the evidence rejected must be deemed sufficient to establish the fact that the debt was uncollectible, and the controversy is as to its materiality. It may be remarked here, however, that insolvency might not be a reason for not 244 charging the administrator, even if the view contended for by the appellant be correct. One may be insolvent and yet be able to pay a particular debt. He may have some property and yet not enough to pay all his debts, and if in law he could prefer one creditor over another, which ordinarily he may, then it was his duty as administrator to pay this debt so far as he could.

The appellant admits that the general rule is that the administrator is to be charged with a debt due from him to the estate as money on hand, but contends that he may show, at least on his final settlement, that he has never at any time while administrator had the means to enable him to pay the debt or any part thereof. Further than this, unquestionably, the contention could not logically go, since, as he cannot sue himself, and yet it is his duty to collect the debt for the estate, he must be held officially liable for any money he could have so applied at any time during his official term. If he has not so applied it, he has not faithfully executed the duties of his trust according to law, and his sureties may also be held; for it is so nominated in the bond. But in this case it stands, for the purposes of this appeal, admitted that the administrator has at no time during his term had one dollar which he could have so applied; and the decree finds and adjudges that he has something over ten thousand dollars in cash on hand, which decree renders him liable to be imprisoned for contempt for not paying over as directed, and perhaps liable to prosecution for embezzlement, and constitutes an estoppel against his bondsmen, who will in consequence be required to pay money to the estate which has

not been lost by the administrator, and which otherwise the estate would never have received. They have not only become liable for the faithful discharge of his duties, which is all they expressly undertook, but also that the administrator is solvent and will pay his indebtedness to the estate.

In other words, they are held liable, although the administrator has in fact faithfully performed the duties of his trust according to law, because of a fiction of the law, that money due from such an administrator shall, as against him, be deemed money in hand. All fictions of the law, we have been taught, were created to enable the court to do justice, and where to indulge a fiction is to cause injustice, its just limit has 245 been found. In fictione juris semper aequitas existit. The courts have not considered the debt from an insolvent administrator or executor to the estate money in hand, for all purposes. When an application is made to sell property to pay debts, it is no reply to say that the administrator has sufficient money in hand for that purpose-if this be fictitious money consisting of a debt due from an insolvent executor. It is then regarded as an uncollectible asset: In re Georgi, 47 N. Y. Supp. 1061, 21 Misc. Rep. 419. Even in Massachusetts, where the doctrine is more strictly adhered to, and where it is held that the sureties are bound for the debt of an insolvent administrator (Stevens v. Gaylord, 11 Mass. 269; Winship v. Bass, 12 Mass. 198), it was nevertheless held that if the debt is secured by a second mortgage the estate could redeem from a sale made under the first: Kinney v. Ensign, 18 Pick. 232. Of course, if the money had been paid the lien was discharged and the estate had no right to redeem, but Judge Shaw said: "The taking of administration by a debtor is not, in fact or in law, to all purposes payment of the debt; as between the administrator himself and those beneficially interested in the estate, he is held to account for it as a debt paid, from convenience and necessity-because the administrator cannot sue himself, and cannot collect his own debt in any other mode than by crediting it in his administration account. On technical grounds, as well as on considerations of policy, an administrator is not permitted to show that he could not collect a debt due from himself. But this is in the nature of an estoppel; and it is a well-settled rule that, although a party is bound by an estoppel as of a fact proved or admitted, yet it shall not be taken as a substantial fact, from which other facts can be inferred, . . . . but such a legal fiction will never be allowed to work wrong and injustice." So

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