and specific breaches thereof by the defendants. The defendants, in their answer, admitted the making of the contract, but denied all other allegations of the complaint, and affirmatively alleged, in effect, that they fully performed their part of the agreement during the year 1890, by clearing a reasonable portion of the land during that time, in accordance with the terms of their said contract, and to the satisfaction of the plaintiffs, and that thereafter, and in the year 1891, they continued the work of slashing and cutting down the timber, small trees, and underbrush on the remainder of said land, until requested and directed by plaintiffs to desist from so doing; and the defendants further alleged that the plaintiffs refused to allow them to perform the contract according to the terms thereof, and, by reason thereof, demanded the damages stipulated for in the agreement from the plaintiffs. The plaintiffs (appellants here) moved the court to strike the answer from the files, for the alleged reason that the defenses therein set forth were inconsistent, and that the same was sham, frivolous, and immaterial. The motion was denied by the court, after which a demurrer was interposed by the plaintiffs to the new matter in the answer, and overruled. We fail to perceive any error in either of these rulings of the court. In our judgment, the defenses set forth in the answer are not necessarily inconsistent, and it is therefore unnecessary for us to discuss that question in this instance. A pleading is generally said to be Isham when it is good in form, but palpably false in fact, and, tested by that definition, the defense objected to is not sham, neither is it frivolous nor immaterial.

Objection is also made that the court ered in admitting certain testimony, which was objected to by the plaintiffs, but we are unable to see wherein the court committed any substantial error in that regard. Some of the testimony thus admitted was probably of slight significance, but, as we view it, it was all pertinent to the issues on trial, and its weight was a question for the exclusive consideration of the jury. The law of the case, we think, was fairly and impartially presented to the jury. If the instructions of the court were not as full and complete on some particular points as the plaintiffs desired, it was their duty to ask the court to make them more specific before objecting thereto on that ground. The court, on the trial of the cause, proceeded, it seems, upon the theory that the contract under consideration, though under seal, might be rescinded or abandoned by paról, by mutual consent of the parties thereto, and that, if it was a fact that the contract was not fully performed by the defendants, solely because the plaintiffs requested or directed them to proceed no further, then the plaintiffs were not entitled to damages. Upon that theory the instructions to the jury were framed, and we

think the court was right. A contrary rule would permit one party to a contract to recover damages from the other for a breach occasioned wholly by himself, which would be manifestly unjust. As all of the instructions requested by the plaintiffs which were proper were substantially included in those given by the court, there was no error in refusing them.

Nor is the objection tenable that "the verdict was not sustained by any evidence." We have carefully read all the evidence in the record, and deem it amply sufficient to sustain the verdict.

Lastly, it is contended that the judgment is void because it was not entered within the time limited by law. While some cases may be found to the contrary, the decided weight of the authorities is to the effect that judgments so entered are not void. See 12 Amer. & Eng. Enc. Law, p. 71. But, if it is void, the appellants ought not to complain, as in that event the respondents are the parties most injured thereby. Judgment affirmed.

DUNBAR, C. J., and HOYT, STILES, and SCOTT, JJ., concur.

(7 Wash. 377)

ACKERSON et al. v. ORCHARD et ux. (Supreme Court of Washington. Dec. 13, 1893.)

SALE OF LAND BY ADMINISTRATOR

VALIDITY

JURISDICTION OF PROBATE COURT.

1. In ejectment it appeared that a petition by an administrator for the sale of land failed to describe all the land of which intestate died seised, and failed to state the amount of personal property which had come into the administrator's hands, and how much, if any, remained undisposed of. The petition showed that there were no debts, though it did show that there was a family allowance, and that the costs of administration amounted to several hundred dollars. Held, that the petition, though defective, gave the probate court jurisdiction to order a sale of the land.

2. The irregularities in the petition did not affect the land in the hands of a purchaser in good faith, under Act March 28, 1890, § 2, providing that a sale of this character shall not be avoided where the probate court, having jurisdiction, orders a sale, and the administrator furnishes a bond, if required, gives notice of the time and place of sale, and the premises are sold at public auction, the sale confirmed, and the land held by a purchaser in good faith.

Appeal from superior court, Pierce county; Frank Allyn, Judge.

Ejectment by Emma V. Ackerson and Charles W. Ackerson, an infant, by H. D. Andrews, his guardian, against George F. Orchard and Sarah M. Orchard, his wife. Judgment for defendants, and plaintiffs appeal. Affirmed.

Thomas A. Garrett, for appellants. Stevens, Seymour & Sharpstein, for respondents.

SCOTT, J. This is an action of ejectment brought by appellants to recover certain

lands situate in the county of Pierce. William E. Ackerson died intestate in July, 1884, seised of the lands in controversy, and appellants claim title thereto as his heirs. The respondents, through mesne conveyances, claim the land by virtue of an administrator's sale made March 8, 1887. Appellants claim that the probate court never acquired jurisdiction to order a sale of said lands for the following reasons, and that the purported sale is void: The record shows that one E. B. Mastick was appointed administrator April 2, 1885, and that he filed an inventory of the estate July 18th, of said year, which inventory made no mention of the lands in controversy. Subsequently, on the 7th of December, 1885, said administrator filed a supplemental statement, describing said lands. Objection is made to this statement, on the ground that it was not made as an additional inventory under section 1453 of the Code of 1881, in that it was not sworn to, and did not show that said lands had been appraised, or state their value. It appears from said statement, however, that it was filed for the purpose of correcting a description of lands made in the original inventory, which land had been appraised, and it is stated that the lands described in said subsequent statement were of the same value as said lands previously appraised. On September 28, 1886, said administrator petitioned the probate court for an order to sell the real estate in question, and an order was made of said date to show cause why the prayer of said petition should not be granted, and the court directed that said order be published at least once a week, for four consecutive weeks, in the Tacoma Weekly News, and that cause be shown on November 1st following. On November 1st the probate court adjourned the hearing of said petition to the 29th of said month, for the reason that proof of publication of the order to show cause had not been made, and on said November 29th the probate court heard said petition, and made an order of that date, directing the administrator to sell the lands aforesaid. Objection is made to the regularity of these proceedings. It is contended that the same are void, because notice had not been published as required by law. It appears from the proof filed that the first publication was had on October 8th, and the last on October 29th, and, consequently, that four full weeks had not elapsed between the first publication of the order and the time first appointed for hearing the petition. But the full time had more than elapsed before the adjourned day upon which the petition was heard and determined. It is further objected that said petition was insufficient, because it failed to describe all the real estate of which the intestate died seised, and because it failed to state the amount of the personal estate which had come into the administrator's hands, and how much, if any, remained undisposed of,

and that it appeared from the petition that the deceased left no debts, and that it did not appear therefrom that a sale of the real estate was necessary in the course of administration. It appeared from said petition, however, that a family allowance of $500 had been made, and the costs of administration amounted at that time to $300. It is contended that this was not a sufficient showing to vest the court with jurisdiction to order a sale of said lands, and, further, that the petition did not set forth the value of the lands that were sold other than it contained a reference to their appraised value. One Thomas L. Nixon was the purchaser of said lands at the administrator's sale, and the respondents subsequently purchased the same of him. The proceedings of the probate court in the premises appear to have been otherwise regular, and the lands were duly advertised and sold, and sale thereof subsequently regularly confirmed.

While the petition was irregular and defective, in not stating some of the things that the statute requires it to state, we are. of the opinion that it was sufficient to give the court jurisdiction to order a sale. The questions raised here should have been presented in that proceeding, and are insufficient now to affect the title in the hands of bona fide purchasers. By section 2 of the act of the legislature of March 28, 1890, (Sess. Laws 1889-90, p. 82,) it is provided that a sale of this character shall not be avoided if it appear-"First, that the executor, administrator or guardian was ordered to make the sale, by the probate or superior court having jurisdiction of the estate; second, that he gave a bond which was approved by the probate or superior judge, in case a bond was required upon granting the order; third, that he gave notice of the time and place of sale, as in the order and by law prescribed; and, fourth that the premises were sold accordingly, by public auction, and the sale confirmed by the court, and that they are held by one who purchased them in good faith." And it is not disputed but that all these things were done, and the respondents purchased the lands in good faith. Whatever force and effect the objections urged here would have been entitled to if seasonably made, we are of the opinion that they are not now available to disturb the title to these lands in the hands of the respondents. We are of the opinion that the probate court acquired jurisdiction of the lands, and that the matters complained of were irregularities only, which did not affect the jurisdiction of the court to order the sale, and it was within the power of the court to order a sale of the lands to pay the expenses of administration and the allowance made to the family.

It is contended that the court erred in admitting certain receipts in evidence, purporting to be signed by Emma V. Ackerson, in her individual capacity, and as guardian of

PARTNERSHIP-LIABILITY-JOINT OWNERSHIP-IN

STRUCTIONS-EXCEPTIONS-APPEAL.

1. In an action against two persons as partners for services in packing goods, proof merely that defendants were joint owners of the goods does not entitle plaintiff to recover.

2. In such case the error in an instruction .that it is sufficient if it be shown that defendants were joint owners is not cured by other instructions correctly stating the law, and what is necessary to make them liable as partners.

3. Though an exception to instructions, as it appears in one place in the bill of exceptions, may be too general, the instruction will be reviewed where, in immediate connection with the instructions set out in the bill, and, so far as appears from the bill, of the same date as the general exception, there appears an assignment of errors in which the particular instruc tions are set out, and it is stated that they are relied on as error.

Appeal from superior court, King county; Richard Osborn, Judge.

Action by George W. Miller and another against Antoine Vermurie and another. From a judgment for plaintiffs, defendant Vermurie appeals. Reversed.

Hughes, Hastings & Stedman, for appellant. Frank P. Lewis, for respondents.

HOYT, J. By their amended complaint, plaintiffs sought to recover of the defendants, as copartners, on their first cause of action, for hauling, transporting, and packing certain goods, and, on their second cause of action, for certain merchandise sold by one Langfitt to the defendants as such copartners, the account for which was alleged to have been assigned by said Langfitt to the plaintiffs. The defendant Fortier answered, admitting all the allegations of the complaint. The defendant Vermurie, by his answer, denied substantially all the allegations of the plaintiffs, and specially denied the existence of any copartnership as between himself and the defendant Fortier. Upon the issues made by the answer of Vermurie, the cause went to trial, and after the introduction of proofs on the part of the respective parties the court gave to the jury, among others, the following instructions: "If you find from the evidence that the plaintiffs hauled or packed goods and property owned 'Rehearing denied January 22, 1894.

jointly by the defendants, then your verdict will be in favor of the plaintiffs, and against both the defendants, for such sum as you may find due for such packing." "I further instruct you that if you find from the evidence that the defendant Fortier was joint owner with the defendant Vermurie of the property and goods packed by the plaintiffs, he is liable with the other defendant for the services rendered. It does not matter whether plaintiffs or Langfitt knew that Vermurie was such joint owner at the time the services were rendered and the goods sold, provided you find from the evidence that said defendants were such joint owners." To the giving of which instructions the defendant Vermurie excepted; and the sole question presented for our consideration is as to whether or not, under the issues made by the pleadings, such instructions correctly stated to the jury any portion of the law of the case. The issue to which these instructions were pertinent, if pertinent at all, was one which raised the question as to the existence of the copartnership between the two defendants; and by these instructions, taken together, the court told the jury that, for the purposes of the case, such partnership would be established, so far as to make both defendants liable, by the simple fact that the goods in relation to which the labor was performed were jointly owned by the two defendants. In other words, the jury were told that, if they found that the goods belonged jointly to the defendants, the owners thereof would be liable for anything which might be done in relation thereto at the request of one of the owners, even although the other owner had no connection whatever with such request, or with the labor performed in relation to such goods. Such instructions warranted the jury in finding that the simple fact of joint ownership constituted the defendants copartners, so far as was necessary to establish their joint liability for any act done in reference to such goods at the request of either of the joint owners. We are unable to hold that such consequences flow from the simple fact of joint ownership of personal property. Such fact, as we understand the law, would not render either of the joint owners liable for services performed in reference to the property, unless such owner in some manner was connected with the services so performed. Nor can we agree with the contention on the part of the respondents that the error incident to the giving of these instructions was cured by the fact that the court, in other instructions, correctly defined the partner. ship relation, and the facts necessary to establish it. Such instructions were inconsistent with the ones above set out; and, while they correctly stated the entire law of the case, it is impossible for us to say that the jury gave exclusive force to them, and entirely disregarded the ones above set out.

The respondents make the further point

that, however erroneous these instructions may have been, the exceptions taken thereto by the appellant were insufficient to authorize this court to enter into an examination thereof. The language of the exception, as it appears in one place, might be open to the objection that it was too general to challenge the attention of the court to the particular error complained of. But in immediate connection with the instructions set out in the bill of exceptions, and, so far as appears from said bill, of the same date as the general exception above referred to, appears what is denominated an "assignment of errors," in which the particular instructions objected to are set out, and it is stated, in connection therewith, that the giving of them is the only error of which the appellant de sires to avail himself on appeal; and there being nothing whatever to show that this particularizing was not done at the same time that the instructions were given, and the trial court having settled the same as a part of the bill of exceptions in immediate connection therewith, it must be given force as a definite exception to the instructions to which objection was made. It follows that for the error in giving the instructions complained of the judgment must be reversed, and the cause remanded for a new trial.

DUNBAR, C. J., and SCOTT, STILES, and ANDERS, JJ., concur.

(4 Colo. A. 150)

SCHNEIDER et al. v. WALLINGFORD. (Court of Appeals of Colorado. Dec. 11, 1893.) ATTACHMENT LIEN-EFFECT OF DELIVERY BOND.

The lien of an attachment is not destroyed by the delivery of the property to the owner on his furnishing a delivery band, and if the officer, after surrendering it, seizes it under other attachments, it is subject to disposition under the lien of the first attachment, and the sureties on the delivery bond are relieved from liability thereon by such resumption of possession by the officer.

Appeal from district court, Las Animas county.

Action by J. N. Wallingford against Henry Schneider and Peter Torino, sureties on a delivery bond executed by Matthews & Co., whose property was attached by plaintiff. From a judgment for plaintiff, defendants appeal. Reversed.

Robert T. Yeaman, for appellants. James M. John, for appellee.

BISSELL, P. J. The chief inquiry here concerns the legal effect to be given to the reseizure of goods by an officer, who has antecedently surrendered them to the defendant on the execution of a delivery bond under the statute. In May, 1889, Wallingford commenced a suit against T. J. Matthews and Whiting, who were copartners, as he avers, under the name of T. J. Matthews & Co., to recover $1,289.92 as money due on

a promissory note, and for the rent of certain property. He sued out an attachment in aid of his action, and the sheriff levied the writ on certain property in the possession of the firm, and belonging to one or both of the members. After the levy, the present appellants, Schneider and Torino, with Matthews, executed a bond for the redelivery of the property which, as to all of its terms and conditions, conformed to the statute. The officer yielded possession, and the defendants in the suit, Matthews & Co., resumed the control of the property. The action proceeded to judgment, an execution was issued, and the sheriff, or one of his deputies, appears to have demanded the return of the property, or the satisfaction of the judgment. The complaint in the present suit stated that the property was not returned, nor the judgment paid, set up the bond, and sought to compel the sureties to pay the judgment. The sureties answered in general denial, and also set up the specific defense that after the bond was executed other suits were commenced in the district court of Las Animas county, in which writs of attachment were issued, and that thereunder the sheriff retook the property. The defendants, in the trial of the case, produced the writs of attachment and the records in those suits, and offered to show that the identical goods surrendered to the attachment defendants on the execution of the delivery bond had come into the possession of the officer who levied the original writ. The proof made by the defendants was meager, and their offer might, under some circumstances, be held to be so narrow as not to preserve their rights; but a deputy sheriff named Hightower gave evidence for the plaintiff which established the fact that the great bulk of the property originally taken by the sheriff returned to his possession. The inventories made by the different offi cers were presented, and they were accepted to be truthful lists of the property and accurate statements of its value. From them it appeared that the sheriff originally took nearly $3,000 worth of property. The court rejected the proof offered by the de fendants in this regard, refused to permit them to submit the case to the jury, and di rected a verdict for the plaintiff for $1,621. the sum claimed.

The appellants argue many questions, bu it would scarcely profit us to discuss the force and effect of a delivery bond, and de termine to what extent its recitals are con clusive upon the sureties with reference to the commencement of a suit, and the regu larity of the attachment proceedings. Thes matters are well understood, and the cour committed no errors with respect to its hold ings on those subjects. An attack upon the judgment because of the failure of the er try to recite the confirmation of the attach ment proceedings is not well based, for i has been decided in many cases that the

attachment is never to be deemed abandoned because there is no recital in the judg ment entry that the process is confirmed. Lumber Co. v. Raymond, 76 Iowa, 225, 40 N. W. 820.

The principal error on which the plaintiffs rely is set out, in different forms, in the seventh, eighth, and ninth assignments, and is based on the effect of the acceptance of a delivery bond by an officer after a seizure of chattels. The legal results flowing from the execution and acceptance of a delivery bond and the surrender of the property have been the subject of very conflicting adjudications. Authors who have written upon the subject of attachments are also at variance in their views upon this question. But within our jurisdiction the question has been set at rest by the well-considered case of Stevenson v. Palmer, 14 Colo. 565, 24 Pac. 5. In that case Mr. Justice Hayt reviews the authorities, discusses the reasons of the conflicting rules, and ultimately reaches the conclusion that the execution of the bond and the surrender of the property do not destroy the lien of the attachment. The court holds that the lien cannot be divested by a sale of the property by the attachment defendant, nor by a seizure and disposition of it by an officer under process. It is held to continue until judgment, and if the plaintiff's claim is ultimately put into judgment, and an execution issued for its enforcement, the property will be treated as still in the custody of the law, and subject to that lien. If this be true, it follows that if, after the surrender of the property to the defendant, the officer seizes the goods under other writs, whether of attachment or execution, it thereupon becomes subject to disposition under this senior lien, which has been acquired by the levy, and the officer is charged with the duty of applying the proceeds of any sale of it to the satisfaction of this claim. Joslin v. Spangler, 13 Colo. 491, 22 Pac. 804; Speelman v. Chaffee, 5 Colo. 247. What the evidence might have shown concerning the disposition of this property, and whether the plaintiff would have been able to overcome the proof, which tended to show that possession of the goods had repassed to the sheriff, to whom the creditor was bound to look for his money, cannot be determined from the present record. It is quite possible that the evidence on this subject may seriously affect the relations and rights of the judgment creditor, the officer, and these sureties. According to the case as made. however, sufficient of these goods repassed into the officer's possession to satisfy Wallingford's claim. Should the ultimate proof establish this fact to the satisfaction of the jury trying the case, and the evidence show that the goods were sold by the officer, or otherwise so disposed of that they were lost to the defendant and the judgment creditor, the legal effect must be to satisfy the debt, and to compel the

creditor to look to the officer alone for the satisfaction of his claim. Under such cir cumstances, it would not be possible, by these proceedings, to revive the liability of the sureties, from which they were relieved when the condition of their bond was complied with by the resumption of possession by the sheriff. It clearly appears from the record that all the goods were not reseized by the officer, but that does not operate to the disadvantage of the sureties. While the condition of their bond is either to redeliver the property, or to pay the amount of the judgment, the measure of the recovery against them is always the value of enough of the goods to satisfy the judgment, and not more. Drake, Attachm. § 342; Stevenson v. Palmer, supra. It is manifest that many questions are liable to arise on a subsequent trial concerning the identity of the property and the sufficiency of the proof to show such a resumption of possession as will entitle the sureties to insist on the application of the principle stated. We are only able to say that there is enough in the record to show that the appellants were entitled to be heard, and to go to the jury, upon these matters. Since the court erred in directing a verdict for the plaintiff, the judgment must be reversed, and the case remanded.

(4 Colo. App. 154)

WILE et al. v. BUTLER et al. (Court of Appeals of Colorado. Dec. 11, 1893.) MORTGAGE OF MERCHANDISE-VALIDITY AS TO CREDITORS.

A mortgage of merchandise, permitting the mortgagor to remain in possession and sell in the usual course of business, paying the proceeds to the mortgagee till the debt is extinguished, is rendered void against creditors by a parol agreement that the mortgagor may retain from the proceeds a small allowance for the support of his family.

Action by Isaac Butler and another, partners as Butler Bros., against Hecht & Co. The attached goods were claimed by Mayer Wile and others, partners as Wile Bros. & Co., who intervened. Judgment for plaintiffs. Interveners appeal. Affirmed.

G. K. Hartenstein, for appellants. C. S. Libby, for appellees.

THOMSON, J. Butler Bros., appellees. brought suit against Hecht & Co., and attached a stock of goods in possession of the latter firm. The appellants, Wile Bros. & Co., intervened, claiming the goods by virtue of a chattel mortgage before that time given by Hecht & Co. to the interveners, to secure a debt owing by Hecht & Co. to them. The mortgage covered the goods which were attached, and provided that the mortgagors might sell the mortgaged property, and that they should, after deducting the expenses of sale, pay the proceeds at once to the mortgagees, retaining nothing for themselves. Contemporaneously, however, with the exe