Wilson

delivered the opinion of the Court.

It is unnecessary to examine the various errors assigned upon the argument of this case, as we are satisfied, from the plaintiff’s own showing, that he cannot recover, as against Heslep, the defendant.

The report of the Committee of the Common Council, on the subject of disputed claims, was predicated on the'de *303 fendant’s memorial, and the fact that there was at that time, an award in his favor, and a suit pending to enforce the same.

We think the only fair and legal inference that can be drawn is, that the Council intended to apply the amount ascertained to be due, upon the award which Heslep had obtained. The * City of San Francisco [303] could not have compelled him to liquidate the question with a third party, so long as the award remained in force and a charge against the city, and it is hardly to be supposed that he would ever have voluntarily abandoned the security which he thus held, and have consented to throw the whole matter back into law, and contest his rights with new claimants.

It would be inequitable and unjust, in the highest degree, thus to allow a party to stand by without any notice of his claim, and then appropriate…