each year's indebtedness and liability, and no indebtedness or liability incurred in any one year shall be paid out of the income or revenue of any future year." But this position is not tenable. In Lewis v. Widber, supra, the question involved was the salary of a public officer whose office had been created and his salary fixed at a definite, certain sum per month by an act of the legislature. The demand for the salary sought to be enforced there was not the result of any contract by the municipality; nor was it an indebtedness or liability incurred by the municipality; and, for that reason, it was held not to be within the limitation of the clause of the constitution under consideration. We there said: "It is quite apparent, however, that this clause of the constitution refers to an indebtedness or liability which one of the municipal bodies mentioned has itself incurred-that is, an indebtedness which the municipality has created, or a liability resulting, in whole or in part, from some act or conduct of such municipality. . . . . But the stated salary of a public officer fixed by statute is a matter over which the municipality has no control, and with respect to which it has no discretion; and the payment of his salary is a liability established by the legislature at the date of the creation of the office. It, therefore, is not an indebtedness or liability incurred by the municipality within the meaning of said clause of the constitution." But in the case at bar the demand sought to be enforced was not fixed by the legislature. It arose directly out of the contract of the municipality, and was an indebtedness which it expressly incurred. It is, no doubt, the general duty of the municipal government to see that the bodies of deceased persons are properly disposed of-just as it is its general duty to do many other things necessary to public health, decency, comfort, and convenience. The sections of the code above referred to are only declarations of a duty already existing, and which belongs to every municipality. The manner in which dead bodies shall be disposed of, the person or persons by whom they shall be buried, the amount which shall be paid for the work, etc., are all left to the discretion of the municipal authorities. Like all other expenditures necessary for the general welfare, and not fixed by statute, the amounts of the demands here in question are the result of a contract made by the board of supervisors, and therefore, constitute a liability incurred by the municipality. They are, therefore, within the provision that no indebtedness shall be incurred "in any manner or for any purpose" exceeding, etc. If they are without that provision, then it is difficult to see how indebtedness incurred for any services or commodities necessary for the public welfare could be held to be within it, or how the constitutional limitation could be kept from being frittered entirely away. The judgment appealed from is reversed. [S. F. No. 15. In Bank.-June 6, 1896.] CITY OF HEALDSBURG, RESPONDENT, v. GEORGE V. MULLIGAN ET AL., APPELLANTS. OFFICIAL LIABILITY-ACTION BOND OF TREASURER-COMMON-LAW AGAINST SURETIES-DEFENSE-BAILMENT-ROBBERY.-The official bond of a city treasurer, conditioned that he shall faithfully perform the duties of his office required by law, which requires him to safely keep all moneys coming into his hands, adds nothing to his common-law liability, as a bailee for hire of the money intrusted to his care, and it is a defense to an action against the sureties on the bond, that the moneys for the loss of which the action was brought were taken from his possession by robbers, by irresistible force and violence. APPEAL from a judgment of the Superior Court of Sonoma County and from an order denying a new trial. R. F. CRAWFORD, Judge. The facts are stated in the opinion of the court. J. A. Barham, Rose & Pond, and J. T. Campbell, for Appellants. The evidence does not show conversion on the part of Mr. Mulligan. Section 876 of the municipal corporation act is the measure of his liability. The treasurer is not an insurer or debtor under this statute. The word "safely" imports only an undertaking to use due care. (Ross v. Hill, 2 Com. B. 877; 52 Eng. Com. L. 370; United States v. Thomas, 15 Wall. 342; Pol. Code, sec. 4161; Const., art. IV, sec. 21; Pen. Code, sec. 514; Cumberland v. Pennell, 69 Me. 357; 31 Am. Rep. 284; Marx v. Parker, 9 Wash. 473; 43 Am. St. Rep. 849.) If the officer has observed the highest care, vigilance, and diligence to prevent loss, and is robbed by irresistible force, it constitutes a valid defense to an action on his bond for recovery of such money. (Walker v. British Guarantee Aзsn., 18 Ad. & El., N. S., 277; Odd Fellows' etc. Assn. v. Janes, 63 Cal. 605; Civ Code, sec. 1511, subd. 2; Story on Bailments, secs. 25-7; 2 Spence's Equity Jurisprudence, 936, 937.) The provision of the statute under which Mulligan gave his bond and received the money is but the reassertion of the common-law doctrine of vis major. The common law is continued in force in this state. (Pol. Code, sec. 4468.) All the decisions relied upon by respondent which hold that robbery is not a defense have been overruled except State v. Nevins, 19 Nev. 162, 3 Am. St. Rep. 873, which is not entitled to weight, as it ignores the difference between robbery and mere theft or larceny, and is a loosely considered case. (United States v. Thomas, 15 Wall. 341-46; Cumberland v. Pennell, supra; State v. Houston, 78 Ala. 576; 56 Am. Rep. 59; York County v. Watson, 15 S. C. 1; 40 Am. Rep. 676; Marx v. Parker, 9 Wash. 373; 43 Am. St. Rep. 849.) The officer is a bailee for hire, and bound to exercise good faith and reasonable skill and diligence in the discharge of his duties, and, having done so, is not responsible for loss occurring without any fault on his part. (Mechem on Public Officers, secs. 297-303; Throop on Public Officers, secs. 225-28; People v. Faulkner, 107 N. Y. 483, and cases cited; Dalton on Sheriffs, 485; Watson on Sheriffs, 140.) E. M. Norton, W. W. Moreland, and Rutledge & Pressley, for Respondent. A denial by the treasurer of having any money of the city was in itself alone sufficient proof of conversion. (People v. Van Ness, 79 Cal. 88; 12 Am. St. Rep. 134.) Robbery is no defense to this action. (State v. Nevin, 19 Nev. 162; 3 Am. St. Rep. 873; United States v. Prescott, 3 How. 578, 587; United States v. Morgan, 11 How. 154, 162; United States v. Dashiel, 4 Wall. 182-85; United States v. Keehler, 9 Wall. 83; Boyden v. United States, 13 Wall. 17; Bevans v. United States, 13 Wall. 56; Commonwealth v. Comly, 3 Pa. St. 372; State v. Harper, 6 Ohio St. 607; 67 Am. Dec. 363; Hancock v. Hazzard, 12 Cush. 112; 59 Am. Dec. 171; Muzzy v. Shattuck, 1 Denio, 233; State v. Powell, 67 Mo. 395; 29 Am. Rep. 512; Perley v. Muskegon County, 32 Mich. 132; 20 Am. Rep. 637; Thompson v. Trustees, 30 Ill. 99; State v. Moore, 74 Mo. 413; 41 Am. Rep. 322; Commissioners V. Lineberger, 3 Mont. 231; 35 Am. Rep. 462; District Tp. v. Morton, 37 Iowa, 550; District Tp. v. Smith, 39 Iowa, 9; 18 Am. Rep. 40; State v. Walsen, 17 Col. 170, citing as authority United States v. Prescott, supra, and other similar cases; Ward v. School Dist., 10 Neb. 293; 35 Am. Rep. 477; Municipal Corporation Act of 1883, secs. 853, 876, 878; Const., art. XI, secs. 16, 17; Pen. Code, sec. 424; Pol. Code, secs. 923, 924, 954, 4161; Dillon on Municipal Corporations, sec. 237; 2 Parsons on Contracts, 159; Mateer v. Brown, 1 Cal. 221; 52 Am. Dec. 303; Pinkerton v. Woodward, 33 Cal. 557; 91 Am. Dec. 657.) The treasurer is not a mere bailee. (United State v. Prescott, supra; United States v Morgan, supra; United States v. Dashiel, supra; Boyden v. United States, supra; Commonwealth v. Comly, supra; State v. Harper, supra; Muzzy V. Shattuck, supra; Hancock v. Hazzard, supra; Clay County v. Simonson, 1 Dak. 403; Murfree on Official bonds, secs. 200-694; San Francisco V. Heynemann, 71 Cal. 153; People v. Van Ness, supra; People v. Burkhart, 76 Cal. 608; State v. Walsen, supra.) Events against which parties could have provided in their contracts shall never be alleged as an excuse for the nonperformance of obligations into which they have entered. (Tompkins v. Dudley, 25 N. Y. 272; 82 Am. Dec. 349, and authorities therein cited; District Tp. v. Smith, supra; Boyden v. United States, supra; Harmony v. Bingham, 12 N. Y. 99; 62 Am. Dec. 142, and authorities therein cited; 5 Lawson's Rights, Remedies, and Practice, sec. 2520, p. 4170, and note, sec. 2516, p. 4166; Murfree on Official Bonds, sec. 200.) Robbers are not public enemies within the meaning of United States v. Thomas, 15 Wall. 346. (State v. Moore, supra.) When the language of the bond is "shall well, truly, and faithfully, safely keep," etc., the obligation to keep safely the public money is absolute without condition, express or im plied; and nothing but payment of it when required can discharge the bond. (United States v. Keehler, supra; United States v. Dashiel, supra; Bevans v. United States, supra; State v. Harper, supra; State v. Nevin, supra; Thompson v. Trustees, supra; County Commrs. of Hennepin County v. Jones, 18 Minn. 204; County Commrs. of McLeod County v. Gilbert, 19 Minn. 216.) The courts of the United States follow the rule of the common law in all cases arising where the state in which the controversy arises has adopted the common law. (Fenn v. Holme, 21 How. 481.) In every state where the common law prevails, with the exception of Maine and Alabama, the rule of United States v. Prescott, supra, has been adopted either in its entirety or with slight modifications. HAYNES, C.-This is an action brought upon the official bond of George V. Mulligan, as treasurer of the city of Healdsburg, and his sureties, to recover the sum of three thousand five hundred and forty-one dollars and forty-nine cents with interest thereon, which moneys, it is alleged, were received by said treasurer on or about October 20, 1893, and which, in breach of his said trust, said Mulligan converted to his own use, and |