This is a proceeding by scire facias, under the old practice, to revive a judgment. After considerable preliminary skirmishing, defendant below filed four special pleas in bar of the action, viz: First, nul tiel record; second, actio non accrevit, three years; third, idem, seven years; and fourth, accord and satisfaction. That plaintiff agreed with defendant, that if defendant would journey with him from Boulder to Gilpin County, and pay all the expenses of both during the journey, and, at plaintiff's election, either convey to him, by quit claim deed, a certain property right which defendant then had in and to a certain parcel of the public domain, or, in lieu of such conveyance, pay him $100 in cash, he would receive such conveyance or money, together with the other acts and expenditures specified, in full satisfaction of the judgment, to revive which this proceeding is now instituted, and also satisfaction of the costs connected therewith. That afterwards said journey was made at defendant's expense, in accordance with the terms of the contract, and that defendant "was, then and there, willing and ready, and ever since hath been, and now is ready and willing to convey to said plaintiff, by deed of quit claim, the said property right, or to pay him $100," as he, the said plaintiff, should elect.

To the first of said pleas a replication was filed; to the second, third and fourth, a demurrer was interposed. This demurrer the court sustained, and the cause was then tried upon the issue of nul tiel record.

The fourth plea stated a good defense, and the demurrer thereto should have been overruled. We may suppose with counsel for defendant in error, that the contract therein stated provided for the transfer of an interest in lands; yet it was not necessary to aver that the same was in writing. There is nothing in the plea to show that it was not written, and therefore, no demurrer would lie upon this ground. The statute of frauds has changed the rule of evidence, not the rule of pleading. Gould's Pleading, Ch. 4, § 43, and cases.

But counsel argue that the ruling of the court was proper, because the pleas were inconsistent. The pleadings in this case must be tested by the rules relating to the subject, as they existed with us prior to 1877. Section 14, p. 504, Revised Statutes of 1868, would serve to answer counsels' objection. It permits the defendant to plead "as many matters of fact, in several pleas, as he may deem necessary for his defense." A similar statute was construed in Illinois to allow the filing of pleas which are inconsistent with each other. Farnan vs. Childs, 66 Ill. 547. See also, People ex rel. Crawford vs. Lathrop, 3 Colo. 448, interpreting a like code provision, and Peters vs. Ulmer, 74 Pa. St. 403.

Under the procedure existing when this suit was brought and determined, the parts of each plea could not be repugnant to each other, but separate special pleas in the same answer might be inconsistent, and yet not render the pleading obnoxious to demurrer.

By the terms of the contract averred in the plea under consideration, plaintiff was given an option; he was to have the privilege of electing between the conveyance of the property interest, and $100 in cash. He has never made this election, and the averment by defendant of his constant readiness to do either, is sufficient. It can not be said that he must make an actual, technical, tender of either the deed or the money, at least until plaintiff indicates his choice. See 1 Chitty's Pl. (16 ed.) 336*

The failure to make the accord a full satisfaction being the fault of the plaintiff, defendant was not precluded from the benefit of this defense. See Cary vs. McIntyre, decided at the present term.

Plaintiff in error did not waive his exception to the ruling upon this demurrer, as counsel contend. The plea of nul tiel record, and that of accord and satisfaction present entirely dissimilar issues. The former denies the existence of the orignal judgment as pleaded, the latter admits its existence and avers satisfaction thereof.

Had defendant amended the latter plea and gone to trial thereon, his objection would not now be considered, but trying the issue made by the former, was no waiver of his exception to the court's ruling against the latter.

For error in sustaining the demurrer to defendant's fourth plea the judgment must be reversed. Reversed and remanded.

[No. 1040.]

C. D. BASSETT, Plaintiff in Error, vs. W. W. INMAN, Defendant in Error. Error to County Court of Saguache.

Opinion Filed March 14, 1884.

Claim of Exemption.-There is no form prescribed by law for claiming exemption of property from levy and sale on execution.

Traverse of Affidavit for Attachment-No Waiver.-A traverse of the affidavit for attachment does not waive the right to claim the property attached as exempt.

Appeal-Trial de Novo.-Upon appeal the case stands in the Appellate Court as it stood in the Justice's Court prior to the trial therein, and defendant's claim of exemption was to be passed on the same as any other matter of defense in the case.

E. F. Allen and Geo. P. Uhl, for plaintiff in error; Clarence P. Lott, for defendant in error.

STONE, J.-The principal ground of reversal relied upon by the plaintiff in error, is the dissolving of the attachment sued out by the plaintiff below, who is the plaintiff in error here. The objection to the action of the court in dissolving the attachment is based upon the following reasons, to wit:

"First. That the affidavit claiming exemption is insufficient."

"Second. Because there was no notice given to the plaintiff of the filing of the affidavit claiming exemption."

"Third. Because the claim of exemption, if any ever existed, was waived." "Fourth. Because the court had jurisdiction of this matter, the same not having come up on appeal, and that, therefore, the court erred in dissolving the attachment."

These alleged reasons are insufficient to support the objection urged. There is no prescribed form for making such claim of exemption, and it might have been made orally in the justice's court. It was made in the form of an affidavit by the defendant in the attachment, describing the property as the span of mules and harness taken under the attachment writ, and claiming them as ex

empt under the statute. No notice of the filing of this affidavit was necessary. any more than in making any other defense, which the defendant was entitled to make to the action. The notice referred to in §12 of the Attachment Act of 1879, applies to cases of claimants of the property other than the defendant in the suit, usually called intervenors. The proceedings mentioned in § 13 of said act, refer to the mode and manner of trying the question of the right of exemption claimed when an issue is made thereon.

The ground of the alleged waiver of the exemption is that the defendant first traversed the attachment upon other grounds, and afterwards filed his affidavit, claiming the exemption as a separate ground for dissolving the writ. This was no waiver of the right of defendant to claim the property as exempt under the statute.

The jurisdictional objection is without force. Upon appeal, in the County Court, the case stood just as it existed in the justice's court, and the trial in the County Court was de novo, where the defendant's claim of exemption was to be passed on the same as any other matter of defense made in the case.

It is said, by counsel for plaintiff, in argument, that the testimony in the record shows that one of the items sued for, was a balance due for the purchase price of the mules attached in the suit, and hence, that had the court allowed a proper issue to be made upon the claim of exemption, the plaintiff would have succeeded in resisting said claim.

It is questionable if this point is properly raised under any of the assignments of error, but even if it is, we think it unavailing to plaintiff here, for the reason that he failed to make this point in the court below. The only grounds upon which the plaintiff resisted the claim of exemption in the court below, when the motion to dissolve the attachment upon the ground of the exemption was before the court, were the four specific grounds which we have hereinbefore set out and discussed, and the plaintiff having failed to present in the court below the fact that a part of the debt in suit was the purchase price, or a portion thereof, for the property attached, as against the statutory exemption claimed, must be held to have waived this ground of objection to the motion, and can not raise it for the first time in this court.

The plaintiff, as assignee of the note and account sued upon, was "the real party in interest," within the meaning of the Code of Civil Procedure, even though the consideration of the assignment may have been a payment to the assignor after recovery in the suit by the assignee. Cummins vs. Morris, 25 N. Y. 625; Meeker vs. Cleghorn, 44 N. Y. 349; Caulfield vs. Saunders, 17 Cal. 569. The jury were properly instructed upon this point, by the instructions given on behalf of plaintiff. The third instruction given on behalf of defendant, the giving of which is made a ground of error in 'the assignments, was inconsistent with that given upon the same point on behalf of plaintiff, and was also inçonistent with the facts to which it was intended to apply, and therefore, objectionable; but that the plaintiff was not prejudiced thereby, is evident from the verdict rendered in his favor, in accordance with the instructions given on his his behalf.

This is none the less evident from the fact that the verdict was for a less amount than that sued for, since a large item in the account for the potatoes

delivered to defendant was in dispute, and the testimony relating thereto directly contradictory, and as the jury were the judges of the credibility of the witnesses, and the weight to be given to their testimony, we can not say that the verdict was unwarranted, and the judgment of the court below will be affirmed. Judgment affirmed.

[No. 976.]

FRANK RALPH et al., Plaintiffs in Error, v8. CONRAD WEARY, et al., Defendants

in Error.

Error to the County Court of Summit County.

Opinion Filed February 29. 1884.

Jury-Province of.-It is the province of the jury to pass upon the evidence and credibility of the witnesses, and to resolve the doubts arising from conflicting testimony.

F. A. Hardenbrook, for plaintiff; J. A. Hall, for defendant.

HELM, J.-No objection was taken, or exception preserved, by either party during the progress of the trial. We are, therefore, precluded from considering errors, if any were made, either in the admission or rejection of testimony, or in the giving or refusal of instructions.

But two witnesses were examined in the case, and there is no strong preponderance of proof upon the disputed points. The testimony of Weary, who was sworn on behalf of plaintiffs below, establishes their right to recover from defendants the amount of the judgment. Bergeman, who testified for defendants below, contradicts Weary in some important particulars. But the cause was tried to a jury, whose province it was to pass upon the weight of testimony and credibility of witnesses; they resolved the doubts arising from these conflicts in the evidence in favor of plaintiffs, and a disturbance of their verdict by us would be unwarranted.

The judgment of the County Court must be affirmed.

Affirmed.

[No. 1027.]

THE CITY BANK OF LEADVILLE, Plaintiff in Error, vs. LEDYARD R. TUCKER, Defendant in Error.

Error to the County Court of Lake County.

Opinion Filed February 29, 1884.

Sheriff's Disbursements.-A sheriff is entitled to reimbursement for his disbursements and expenses in taking care of property attached by him, since he is by law required to retain possession of it, and is responsible for its safe keeping.

Such Disbursements to be Allowed by the Court.--But such fees and expenses can not be collected unless allowed by the court. The clerk ought not to tax such disbursements upon

his own motion in the first instance, until an order of the court or judge has been obtained, allowing such disbursements and expenses.

HELM, J.-The personal property attached in this action consisted partly of engines, boilers, pumps, etc. This property, by direction of plaintiff's attorney, the sheriff held possession of, under the writ, at the mine where it was when attached, for the period of nine months. To do this, he was compelled to employ a keeper, whom he paid five dollars per day. The suit was finally dismissed with the consent of plaintiff, and at its costs. The clerk taxed, as costs, the expense of keeping the property at five dollars per day, and also that of removing it at the expiration of the time aforesaid, and storing until the termination of the suit. A motion to retax costs was overruled by the court.

There is nothing in the record requiring us to pass upon the reasonableness or justice of the sheriff's charges. He was ordered by the plaintiff not to store, but to hold possession at the mine. The mine may have been so situated, and the hardships and dangers so great, that five dollars per day was the least sum for which a reliable person could be procured to perform the duty. But the finding of the County Court upon this matter is not presented for our consideration.

The questions before us for adjudication are: Is the sheriff entitled to any reimbursement at all for these expenses? if he is can they be recovered of plaintiff below? and if these two questions are answered affirmatively, can they be taxed as costs in this suit by the clerk, or must the officer resort to a separate action therefor?

Upon the first two of these questions there can be no doubt. This is not the case of a promise of extra compensation in the performance of a duty for which the fee is fixed by statute. The point presented is simply the sheriff's right to just and equitable expenses incurred in the proper care and keeping of attached property while in his custody. For obvious reasons, no fees are fixed and no rule is stated by statute, for determining these expenses. Neither, on the other hand, is there anything in the statutes, which, in terms or by implication, requires him to make these expenditures without compensation therefor. The law does compel him to take and retain possession of the property, and it holds him responsible for the preservation and safe keeping thereof. There were formerly many doubts as to his right to reimbursement for expenses incurred in this way, but the question now seems thoroughly settled in his favor. The rule now is, that if plaintiff recover, and the property be ultimately sold by the officer under execution in the writ, he may deduct these charges, if allowed, out of the proceeds received. If the judgment goes for defendant, or, as in the suit at bar, the cause be dismissed, he may look to the plaintiff therefor. See the following works, and cases cited therein: Drake on Attachment, § 311; Story on Bailments, § 131; Crocker on Sheriffs, §§ 1144 and 824.

The officer's rights are, if possible, stronger when the plaintiff directs at what place and in what manner the property shall be held under the writ.

The remaining question before us is more difficult to answer. The authorities seem to be somewhat in conflict. But, upon principle, there appears to be no reason why these expenses may not properly be allowed, and taxed as costs. Technically, they are not fees; but they are disbursements necessarily required