with the place of business theretofore managed by the former, and to Mahoney and appellant the other establishment. From July 12th business went on at the latter place, under the name of Mahoney alone, until February 18, 1893, when Mahoney died. Respondent sold and delivered sundry goods to Mahoney, and had no knowledge that appellant was in any wise connected with him until long after Mahoney's death. Appellant's answer denied that he was at any time Mahoney's partner, and the issue was limited to the single question of a partnership in fact.

on

By way of introduction to the case, the plaintiff offered the articles of copartnership of the original firm, and the contract of dissolution; and of the court's admission of these instruments the appellant complains. It may well be questioned whether the papers were admissible for the real purpose for which they were offered; that is, to prove the actual existence of a partnership between appellant and Mahoney at one time, for the purpose of inferring a continuance of the relation to another time. The difficulty with them was that, for this purpose, they proved too much; for the contract of dissolution positively established that July 12th the partnership relation ceased, and that, so far as the house presided over by Mahoney was concerned, there was between him and appellant at that time a mere joint ownership of whatever property came to them. Mere use of the property by one or the other thereafter would in no wise show or tend to show a continuance of the conventional relation of partnership between the owners. But the dissolution contract might justly have served to show the fact of joint ownership itself, as the basis of further proof, and it was admissible for that purpose. To have made the general admission of the instrument error, however, there should have been a request that the court limit its effect to the matter of ownership; but such request was not made. We think the case for the plaintiff rested substantially upon certain admissions alleged to have been made by appellant immediately before and after the death of Mahoney, and but for those we should feel constrained to sustain the motion for a nonsuit. Two witnesses testified that appellant told them that he was Mahoney's partner, and this was sufficient, in our judgment, to call for explanation or denial, considering the fact that the property with which Mahoney's business was commenced was apparently owned by him and appellant jointly. The court was asked to give this instruction: "A community of interests in money or property, or both, used in carrying on a business, does not of itself constitute a partnership in such business. There must be some joint adventure and agreement to share in the profits of the undertaking; and though you should find that the deceased, Mahoney, in the busi

ness in question by him carried on, used money or property, or both money and property, of the defendant McGoldrick, that fact would not constitute the defendant a partner in the business, and would neither confer upon him the rights nor subject him to the liabilities of a partner therein." This instruction, though not framed in very exact language, would have given to the jury the substance of a direction which the appellant was entitled to. It seems to have been refused on the ground that there was no evidence applicable; but that was a mistake. It is true that the theory of the defense was that appellant was never the owner of any of the property, but that he accepted the appearance of ownership merely that he might be in a position to protect himself from loss by reason of the obligations that he had undertaken at banks by way of assisting Mahoney. But it was the theory of the plaintiff, strenuously insisted upon, that he was the actual owner of one-half of the property operated with by Mahoney; and, if that were the fact, then the instruction became pertinent and important, for the remainder of the defense was directed to the point of showing that appellant had no agreement whatever with Mahoney, paid no attention to the business, and had no right or expectation of participation therein. If the jury believed that he was a joint owner, but did not believe the testimony as to his alleged admissions, this instruction would have constrained them to find that no partnership was proven; and rightly so, for there was no other sufficient evidence of it. The following instruction was excepted to: "If you find from the evidence that the defendant. J. A. McGoldrick, has admitted there was a partnership between him and decedent, T. J. Mahoney, and was interested with him in the undertaking business, during the times set forth in the complaint, that is, in both the good will of such business and stock of goods used in such business, then your verdict should be for the plaintiff." Respondent claims that this instruction meant that if the jury found that appellant was a partner, and admitted it, they should find for plaintiff. But it does not read so. The sense is that, if appellant had admitted that he was a partner, the finding should be that he was a partner; and that was not the law of this case. There was no attempt here to charge appellant as a partner by holding out, but as a partner in fact. The goods were not sold on his credit, and the respondent did not know until after Mahoney's death that he was suspected of being interested in any way. Neither were the admissions made to respondent or any one representing it, or with any knowledge of respondent's claim, or of the claim of any person that a partnership existed. There was, therefore, nothing binding in them, and they could be used only as circumstances which, with others, were competent for the jury to

consider. Appellant offered the books of account kept by Mahoney to prove that they contained nothing tending to show that he in any way recognized appellant as a partner. But we think there is no proper theory under which they could be admitted. The purpose of the offer was to show that they contained nothing on the subject, which was an irrelevant fact. Moreover, conceding the argument that if a partnership existed some mention of it would be likely to appear in the accounts of the business, there was no opportunity for the other side to cross-examine the person who kept them. Had Mahoney been alive, it would not be contended that anything but his own evidence would suffice; being dead, the colorless negative to be argued from something which he did not do would amount to nothing. Judgment reversed, and cause remanded for a new trial.

HOYT and ANDERS, JJ., concur.

DUNBAR, C. J. (dissenting). I am unable to agree with the conclusion reached by the majority in this case. It seems to me that the testimony was overwhelmingly to the effect that McGoldrick was a partner with Mahoney in the undertaking business. It must be borne in mind that the appellant here was not charged with partnership by holding out, but was charged as an actual partner; and it seems to me that the instruction of the court which is so strenuously objected to by appellant, and which this court holds to be error, in view of the testimony in this case, is absolutely harmless, even if it did not correctly state the law, which I think it did. For, certainly, if the jury found from the evidence that appellant admitted that there was a partnership between him and the deceased, Mahoney, and it further appeared that he was interested with him in the undertaking business during the time set forth in the complaint, both so far as the good will of such business went, and the stock of goods used in such business, then, undoubtedly, the jury would have been justified in coming to the conclusion—and, in fact, could not have come to any other conclusion-that appellant was a partner in the business. It is not disputed that appellant was a partner in the first business, and he was not more actively known in that than in the latter business. His admitted statements to others, his solicitation for a continuation of the patronage of the business, and even his own statements on the witness stand, go conclusively to show, to my mind, that he was an actual partner with Mahoney. He testifies that he went into partnership for the purpose of being secured for payments for whatever he had indorsed; but it was none the less a partnership because this was the reason which urged him to form it. The jury were justified in concluding, it seems to me, even from the testimony of the appellant himself, tak

ing into consideration both the direct and cross examination, that he was an actual partner in the business, and that he disclaimed partnership simply when he found that the business was insolvent. If there were any technical errors by the court concerning the instructions, either in giving or refusing to give, I think, under the undisputed testimony in the case, that they were harmless. The judgment should therefore be affirmed.

SCOTT, J., concurs.

(10 Wash. 235)

STATE v. HANSEN. (Supreme Court of Washington. Nov. 30, 1894.) INFORMATION-DISMISSAL

RECITALS IN ORDERCONVICTION ON NEW INFORMATION.

1. Where an information is dismissed, and a new one filed in its stead, the fact that more than 60 days elapsed between the filing of the first information and the trial on the second will not invalidate a conviction.

2. Hill's Code, § 1372, providing that when the court, on motion of the prosecuting attor ney, orders an information to be dismissed, the reason of the dismissal must be set forth in the order, does not apply where an information is dismissed with leave to file a new information, as such a case is governed by Hill's Code, § 1315, providing that, when at any time before judgment it appears that a mistake has been made in charging the proper offense, defendant shall not be discharged if there be good cause to detain him, but the court must recognize him to answer the defense shown.

Appeal from superior court, Whitman county; E. H. Sullivan, Judge.

John Hansen was convicted of burglary, and appeals. Affirmed.

Chadwick, Fullerton & Wyman, for appelJ. N. Pickrell, Pros. Atty., for the

lant. State.

STILES, J. On the 20th day of November, 1893, appellant was brought to trial upon an information charging him with the crime of burglary committed in the nighttime. Thereupon the prosecuting attorney moved the court to quash the information, and for leave to file a new one. The journal entry of the transaction contains the only statement in the record concerning the court's action upon this motion, and is as follows: "The court, after being fully advised in the premises, grants said motion, and also grants leave to file a new information." The prosecutor forthwith filed a new information, charging burglary generally; a warrant was issued; appellant was arrested thereon; he was arraigned immediately; and was given until December 4th to plead. Before the entry of his plea appellant moved to quash the new information upon several grounds, which are here presented, viz.: (1) That the court had no jurisdiction of the subject-matter or of the person of the defendant, or to try him upon the information; (2) that the information was not filed within 30

days after defendant was neld to answer; (3) that defendant had not been brought to trial within 60 days after the filing of an formation against him.

We shall dispose of the last two of these grounds at this point. As to the second ground, it is sufficient to say that this record does not show when, if ever, appellant had been held to answer. As to the third, we are of the opinion that, if the second information could be filed at all, it must be held that the accused had no right to urge against a trial upon it that a time greater than 60 days had elapsed since the filing of some former information, which was no longer in the case. After overruling the appellant's motion, the court entered a plea of not guilty for appellant, he standing mute, and the cause proceeded until January 17th, when a trial was had which resulted in a verdict of guilty. At every proper stage of the case appellant renewed his objections, and now presents them here. His allegations of error are based upon two propositions, viz.: (1) That the quashing of an information on motion of the prosecutor, unless the reason of the court's action be set forth in the order entered in the record, as required by Code Proc. § 1372, works the loss of jurisdiction of the court over the person of the defendant; (2) that, under the circumstances stated, it was error to allow the filing of a new information charging burglary generally.

Concerning Code Proc. § 1372, we are of the opinion that its provisions go no further than those cases where the prosecutor desires for some valid reason, "in furtherance of justice," as the statute expresses it, to dismiss the charge against the accused without any intention to renew it in some other form. It is a statutory prohibition against the entry of a nolle prosequi at the mere instance of the prosecuting attorney, and without the assent of the court, and is followed by Code Proc. § 1373, abolishing the entry of nolle prosequl, and prohibiting the "discontinuation or abandonment" of a prosecution except as provided for in the preceding section. If, in such a case, the record should show that the dismissal occurred because the court was of the opinion that the preliminary examination disclosed no probable cause for believing the accused to be guilty of any offense, it might be a protection to him against another information filed without another examination before a magistrate; or if it showed that the accused had agreed that, if discharged, he would testify fully and freely against an accomplice, although in so doing he would state facts tending to criminate himself, and he could also show that in fulfillment of that agreement he had so testified, a further prosecution might be barred, since that would be a strong instance of the furtherance of justice and of fair dealing as well. But where, as in this case, by the motion made, which was to quash, dismiss, or withdraw the information (whichever it may be called), with leave to

application of this statute fails. Such cases clearly come under Code Proc. § 1315, which provides that when it appears, at any time before judgment, that a mistake has been made in charging the proper offense, the defendant shall not be discharged if there be good cause to detain him, but the court must recognize him to answer the offense shown. The only purpose of such a proceeding must be to allow the filing of a new information covering the actual offense. In this case the record is silent as to the causes which moved the court to the action taken. But we are bound to presume that sufficient cause existed, not only because of the presumption attaching to the act, but because the record says that the court was fully advised in the premises. It was entirely within the power of the appellant to preserve the facts upon which the court acted, either by a statement of facts or bill of exceptions, but that has not been done. It the ground for the motion was that the preliminary examination left it doubtful whether the acts constituting the alleged crime were committed during the period designated by the phrase "in the nighttime," and therefore rendered the outcome of a trial uncertain, that would be a proper ground for the proceeding taken; and from the face of the two informations it seems altogether likely that such was the reason for the motion in this case. The statute (Pen. Code, § 46) defines the offense of "burglary" to be an unlawful entry in the nighttime, or an unlawful breaking and entry in the daytime, with intent to commit a misdemeanor or a felony. The first of these informations charged according to the former and the second according to the latter, of these definitions; the state taking upon itself the burden of showing the breaking, and enlarging the period to the whole of the 24 hours. Ap pellant was given full time to plead, and more than a month in which to prepare for trial, and we think he has no good ground for complaint. This case is entirely unlik that of State v. Van Cleve, 5 Wash. 642, 32 Pac. 461, where the information was merely amended, without reverification, arraignment, or plea, and the defendant was forced to proceed in a trial already begun. But, even in that case, the appellant was not ordered discharged. Judgment affirmed.

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

ings of the jury upon the issues made thereon. Defendants claim that it was warranted by the provisions of section 495 of the Code of Procedure, and this claim is probably warranted by the language of that section. But the provisions of that section apply only to the rendition of a judgment in the special proceeding authorized by section 491, and have no reference whatever to one to be rendered in an action in the nature of a suit in replevin brought under the provisions of the chapter relating to the claim and delivery of personal property. Section 438 provides what the judgment must be in actions under said chapter, and no authority can be found in it for entering any other judgment than one for the return of the property, or, in case return cannot be had, for its value; and, under its provisions, such judgment can only be rendered against the plaintiff or defendant in the action, and there is no authority for entering a judgment of any kind against the sureties in the bond given by plaintiffs to secure possession of the property.

There is some contention on the part of the defendants that this was a proceeding under the provisions of said section 491, but even a superficial examination of the pleadings and proceedings had in the case will show that there is no foundation whatever for such a contention. The proceeding was commenced by the filing of a complaint against the defendants in their individual capacity, and the Issuing of a summons thereon, and thereafter an answer was regularly interposed, and every proceeding had incident to the preparation for trial of a cause of action under the provisions of the chapter above referred to. Not only is the nature of the action made to appear from the pleadings, but also from the process by which possession of the property was obtained. Under the special proceeding to which defendants refer, there is no necessity for any process to enable the plaintiffs to procure possession of the property. It is the duty of the sheriff, whenever the affidavit and bond required by the statute are presented to him, to deliver the possession of the property to the claimant. In this case such was not the course taken. On the contrary, regular process issued to the coroner, requiring him to take from the defendants, one of whom was sheriff of the county, the property in question, and deliver it to the plaintiffs. The action, then, must be held to have been one under the provisions of the chapter concerning claims for the delivery of property, and not a proceeding by a claimant under the section of the statute above cited. It follows that there was no authority for the entry of the judgment from which the appeal was taken.

The foregoing is decisive of the rights of the parties on this appeal, but, in view of a retrial, it will be well for us to decide one or two other questions presented by the record. The court, over the objection of the plaintiffs, permitted defendants to show on cross-examination of one of the plaintiffs that the prop

erty had been attached on a writ issued prior to the one under which the defendants justified their taking, and showed by his testimony, over such objection, that in said prior suit the property had been levied upon, and possession thereof obtained by the plaintiffs, by the force of an affidavit and bond, by the terms of which they were required to return the property to the officer from whom it was taken, if return thereof should be adjudged. Plaintiffs claim that it was not proper for the defendants to prove these facts upon the cross-examination of their witness; that, if such facts were competent at all, they were so competent only as a part of the defendants' case. They further contend that the effect of such proof was to show that the levy under which the defendants claimed was illegal. We are compelled to agree with the latter contention. Goods in the hands of an officer under attachment are in custodia legis, and cannot be levied upon by any other officer pending the litigation of the case in which the attachment was issued. Drake, Attachm. (7th Ed.) §§ 251, 267, 331. And the possession of any other person obtained by a delivery bond which requires a return to the officer, if return thereof shall be adjudged, leaves the goods in the same situation, so far as another levy is concerned, as though yet in the hands of the officer who made the first levy. See Pipher v. Fordyce, 88 Ind. 436; Bank v. Ow en, 79 Mo. 429. It follows from what we have said that, if this testimony was competent, its effect was to take from under the defendants the ground upon which their defense rested. It was therefore error to receive it. or else it was error on the part of the court to refuse to give the plaintiff's the benefit of the situation disclosed by it. In either case the error was sufficient to justify this court in ordering a new trial.

Other questions are suggested in the briefs, but they are not likely to arise upon a retrial of the cause, and we, for that reason, shall leave them without further notice. The judg ment will be reversed, and the cause remanded for retrial.

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

(10 Wash. 185) BOSTON NAT. BANK OF SEATTLE v. JOSE et al.

(Supreme Court of Washington. Nov. 26, 1894.) PROMISSORY NOTE PAYMENT BY RENEWAL NOTE -ACTION AGAINST SURETIES-RELEASE BY EXTENSION.

1. In an action by a bank against the sureties on a note, it appeared that after several renewal notes had been given, signed by all the parties, the last of them being that in suit, another renewal note was given by the maker, which was not signed by the sureties. One of the sureties testified that he was willing to sign the note, and went to the bank to sign it, but did not do so, because no one at the bank asked it. The cashier testified that he agreed